Ace21 v Minister for Home Affairs - [2021] FCA 702

FEDERAL COURT OF AUSTRALIA
ACE21 v Minister for Home Affairs [2021] FCA 702

Appeals from:
Orders of Judge Driver in Federal Circuit Court of Australia proceeding SYG52/2021 dated 2 June 2021

Orders of Judge Driver in Federal Circuit Court of Australia proceeding SYG3013/2020 dated 8 June 2021

File numbers: NSD 599 of 2021
NSD 604 of 2021

Judgment of: PERRAM J

Date of judgment: 24 June 2021

Catchwords: PRACTICE AND PROCEDURE – appeals from procedural orders of Federal Circuit Court of Australia – whether appeals competent

Legislation:
Federal Circuit Court of Australia Act 1999 (Cth) s 39(6)

Federal Court of Australia Act 1976 (Cth) s 24(1AA)(b)(ii)

Cases cited: BHL19 v Commonwealth of Australia [2021] FCA 462

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 10

Date of hearing: 24 June 2021

Solicitor for the Appellants: Mr D Taylor of Sydney West Legal and Migration

Counsel for the Respondents: Mr B Kaplan

Solicitor for the Respondents: Australian Government Solicitor

ORDERS

NSD 599 of 2021

BETWEEN:
ACE21

Appellant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

SECRETARY DEPARTMENT OF HOME AFFAIRS
Fourth Respondent

ORDER MADE BY:

PERRAM J

DATE OF ORDER:

24 JUNE 2021

THE COURT ORDERS THAT:
1.The appeal be dismissed as incompetent.
2.The Appellant pay the Respondents’ costs as taxed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS

NSD 604 of 2021

BETWEEN:
FJW20

Appellant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

SECRETARY DEPARTMENT OF HOME AFFAIRS
Fourth Respondent

ORDER MADE BY:

PERRAM J

DATE OF ORDER:

24 JUNE 2021

THE COURT ORDERS THAT:
1.The appeal be dismissed as incompetent.
2.The Appellant pay the Respondents’ costs as taxed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
PERRAM J:

The Court has before it two related appeals which were heard together on 24 June 2021. The proceedings are NSD 599 of 2021 (‘ACE21’) and NSD 604 of 2021 (‘FJW20’).
ACE21
On 2 June 2021 Judge Driver in the Federal Circuit Court made this order in this matter (SYG52/2021):
1.The application in a case filed on 31 May 2021 is dismissed, in so far as it sought a transfer of proceedings to the Federal Court of Australia.
Where the Federal Circuit Court refuses to transfer a proceeding to this Court, no appeal lies to this Court: Federal Circuit Court of Australia Act 1999 (Cth) s 39(6). On 23 June 2021 ACE21 filed a notice of appeal from the orders made on 2 June 2021. The only order made on that occasion was the order dismissing the application for a transfer of the proceeding to this Court. The effect of s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FCA 702
Decision Date: 24 June 2021

CaseChat Overview and Summary

In Ace21 v Minister for Home Affairs, the matter before the Federal Court involved an appeal against procedural orders made by the Federal Circuit Court of Australia. The parties to the dispute were Ace21, the appellant, and the Minister for Home Affairs, the respondent. The nature of the dispute was centred around the competency of the appeal filed by Ace21 against the procedural orders issued by the Federal Circuit Court.

The primary legal issue the court had to address was whether the appeal from the procedural orders of the Federal Circuit Court was competent under the relevant legislative framework. Specifically, the court needed to determine if the appeal was valid and whether the Federal Court had the jurisdiction to hear it. This issue hinged on the interpretation of the relevant provisions of the Federal Court of Australia Act 1976, including sections related to appeals and procedural orders.

In resolving the matter, the court examined the statutory provisions and found that the appeal did not meet the criteria for competence as outlined in the legislation. The court held that the appeal was not valid because it did not comply with the specific requirements for appeals from procedural orders of the Federal Circuit Court. Consequently, the court dismissed the appeal as incompetent and ordered that Ace21 pay the costs of the respondents as taxed or agreed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appeal be dismissed as incompetent.

2. The Appellant pay the Respondents’ costs as taxed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeals from:	Orders of Judge Driver in Federal Circuit Court of Australia proceeding SYG52/2021 dated 2 June 2021 Orders of Judge Driver in Federal Circuit Court of Australia proceeding SYG3013/2020 dated 8 June 2021
File numbers:	NSD 599 of 2021 NSD 604 of 2021
Judgment of:	PERRAM J
Date of judgment:	24 June 2021
Catchwords:	PRACTICE AND PROCEDURE – appeals from procedural orders of Federal Circuit Court of Australia – whether appeals competent
Legislation:	Federal Circuit Court of Australia Act 1999 (Cth) s 39(6) Federal Court of Australia Act 1976 (Cth) s 24(1AA)(b)(ii)
Cases cited:	BHL19 v Commonwealth of Australia [2021] FCA 462
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	10
Date of hearing:	24 June 2021
Solicitor for the Appellants:	Mr D Taylor of Sydney West Legal and Migration
Counsel for the Respondents:	Mr B Kaplan
Solicitor for the Respondents:	Australian Government Solicitor

ORDER MADE BY:	PERRAM J
DATE OF ORDER:	24 JUNE 2021