High Court. Does the question of whether a decision is reviewable under Part 5 of the Migration Act 1958 (Cth) depend on a non-citizen's ability to satisfy the requirements in s 347(3A)?
One of the effects of ss 476(2) and (4) of the Migration Act 1958 (Cth) was that the Federal Circuit and Family Court (FCFCA) had no jurisdiction to review a decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period
In the High Court's (HCA) decision in Gajjar, the relevant decision satisfied the elements of s 338(2) of the Act which, inter alia, included a requirement that the non-citizen must have made his or her visa application while in the migration zone. The non-citizen in Gajjar was in the migration zone at that time. However, he departed the migration zone before applying to the Tribunal for review. Section 374(3) provided that a reviewable decision "may only be made by a non-citizen who is physically present in the migration zone when the application for review was made". In Gajjar, in determining whether the decision in question was reviewable by the Tribunal, Kiefel J (as her Honour then was), said as follows:
The references in [s 474(4)] to a decision being reviewable “whether or not it has been (in fact) reviewed”, or whether it would have been if the application had been within time, direct attention to the quality of the decision rather than whether or not review is capable of being achieved. The section is concerned with decisions of a kind for which review is provided in Pt 5 or elsewhere. It would follow that it contemplates that the relevant Tribunal has jurisdiction to hear the review. However, that would be because the Act provides that jurisdiction. The section does not, inferentially, exclude from what is otherwise a reviewable decision, by reference to Pt 5, a decision in respect of which jurisdiction to review has been lost by reason of non-compliance with a provision such as s 347(3).
The plaintiff seeks to extend the notion of a reviewable decision beyond one for which review is simply provided to a decision for which review may be achieved, having regard to the circumstances pertaining to a particular visa applicant and whether or not the applicant can satisfy other provisions. The language and purposes of s 476 do not support such an interpretation. Its language suggests that the achievement of a review is not its concern. It says nothing about the effects of non-compliance with the Act upon review and may be taken to allow such effects to follow depending upon the nature of the non-compliance. In this case the effect is that the prospect of a review was lost and there is no alternative route to the Federal Magistrates Court provided.
Here, the decision in question met the requirements of s 338(7A), which was in these terms:
(7A) A decision to refuse to grant a non-citizen a permanent visa is a Part 5-reviewable decision if:
(a) the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone.
Section 347(3A) provided as follows:
(3A) If the Part 5-reviewable decision was covered by subsection 338(7A), an application for review may only be made by a non-citizen who:
(a) was physically present in the migration zone at the time when the decision was made; and
(b) is physically present in the migration zone when the application for review is made.
Here, the plaintiff could not meet s 347(3A)(a), because of COVID-related travel restrictions.
Further, s 55 of the Act provided as follows:
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
Before the HCA, the defendant argued that the following passage from the delegate's reasons was an absolute answer to the question of whether the delegate had considered the additional relevant information which s 55 required consideration of:
"I am a delegated decision maker under section 65 of the Migration Act 1958. In reaching my decision, I have considered the following:
...
documents and information provided by the applicant(s)."
Some of the questions to the HCA were as follows:
Question 1: Should Gajjar be distinguished here on the basis that the plaintiff had no possible means of meeting the requirements of s 347(3A)? In other words, does the question of whether a decision is reviewable under Part 5 depend on a non-citizen's ability to satisfy the requirements in s 347(3A)?
Question 2: Was the above-extracted passage by the delegate a form of incantation, which is not sufficient to discharge the obligation under s 55 if the reasons show otherwise?
Question 3: Was the "juxtaposition of the length and detail of the plaintiffs' materials and the cursory dismissal of their claims" by the delegate relevant to the question of obligation under s 55 was discharged?
The HCA answered those questions as follows: