AFJ17 v Minister for Immigration and Anor

[2018] FCCA 1495

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1495

Catchwords:
PRACTICE AND PROCEDURE – Immigration Assessment Authority – whether the issuing of Constitutional writs requires the exercise of judicial power of the Commonwealth – no such power is conferred upon Registrars – orders made nunc pro tunc.

Legislation:
Federal Circuit Court of Australia Act 1999 (Cth), s.13(4)
Federal Circuit Court Rules 2001 (Cth), rr.13.04, 20.00A
Migration Act 1958 (Cth), s.476

Applicant: AFJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 120 of 2017

Judgment of: Judge Street

Hearing date: 7 June 2018

Date of Last Submission: 7 June 2018

Delivered at: Sydney

Delivered on: 7 June 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr L Dennis
MinterEllison

ORDERS

1. A writ in the nature of certiorari is issued calling up the record of the Immigration Assessment Authority and quashing the decision made on 19 December 2016 nunc pro tunc as at 9 June 2017.

2. A writ in the nature of mandamus is issued requiring the Immigration Assessment Authority to determine the review application for a Safe Haven Enterprise visa before it according to law nunc pro tunc as at 9 June 2017.

THE COURT NOTES THAT:

The first respondent concedes that the decision of the second respondent (the IAA) dated 19 December 2016 (IAA reference IAA16/00753) is affected by jurisdictional error. Specifically, the IAA erred in failing to consider a claim made by the applicant (in post-interview submissions) to fear harm on account of his Hindu religion in the context of complementary protection.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 120 of 2017

AFJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. On 9 June 2017, a Registrar of the Court purported to make orders 1 and 2 issuing a writ of mandamus and a writ of certiorari by consent in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Migration Act 1958 (Cth) (“the Act”).

2. The reference to “by consent” was no doubt by reason of the Registrar believing that Registrars had power under Part 20, r 20.00A item 2 paragraph (m) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) to make an order, the terms of which have been agreed upon by all parties to the proceedings.

3. The issuing of Constitutional writs requires the exercise of the judicial power of the Commonwealth and requires a determination, notwithstanding the consent of the parties, that it is appropriate to issue the writs. That is not a power that was vested in the Registrar and it is not a power that should purportedly be exercised by Registrars.

4. Under the Rules, r 13.04 relevantly provides:

   (1) The parties to a proceeding may apply for an order in terms of an agreement reached about a matter in dispute in the proceeding by filing a draft consent order signed by each party.

   (2) The draft consent order must state that it is made by consent.

   (3) The Court may make such orders as the Court considers appropriate in the circumstances.

(4) If a Registrar has power to make the order, the Registrar may, unless the Registrar considers that the matter should be brought before the Court, make an order in accordance with the terms of the draft consent order.

1. That provision makes express reference in relation to consent orders to the issue of whether the Registrar has power to make the order. Constitutional writs are not granted because the parties consent to the issue of the same. There must be a deliberation by the Court as to whether it is appropriate to exercise the judicial power of the Commonwealth vested in the Court under s 476 of the Act determining that it is appropriate to issue the writs. That is a power that the Court can exercise and often does in Chambers pursuant to s 13(4) the Federal Circuit Court of Australia Act 1999 (Cth) which is as follows:

   (4) The jurisdiction of the Federal Circuit Court of Australia is to be exercised by a Judge sitting in Chambers in a proceeding where:

   (a) under the Rules of Court, the Federal Circuit Court of Australia is authorised to make a decision relating to the proceeding without an oral hearing; and

(b) the parties to the proceeding have consented to the Federal Circuit Court of Australia making a decision in relation to the proceeding without an oral hearing.

1. The Registrars have no power under s 13(4) of the Federal Circuit Court of Australia Act 1999 (Cth). Where the parties provide to the Court proposed consent orders, the Court exercises the judicial power of the Commonwealth to consider whether it is appropriate to make those consent orders, issuing a Constitutional writ in Chambers. No such power is conferred upon a Registrar. On occasions the Court will issue, by consent, orders in open Court. Again, in respect of Constitutional writs, no such power is vested in a Registrar.

2. This Court also has power to make orders nunc pro tunc. In the circumstance of the present case, the Court has raised with the applicant and the solicitor for the first respondent whether there is any opposition to the Court making an order nunc pro tunc given the want of jurisdiction in respect of the orders made on 9 June 2017. No objection has been taken by either party. Accordingly, it is appropriate to make orders in the terms proposed with the consent.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  3 July 2018