AUI16 v Minister for Immigration

[2016] FCCA 1411

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUI16 & ANOR v MINISTER FOR IMMIGRATION [2016] FCCA 1411

Catchwords:
MIGRATION – Summary dismissal.

Legislation:

Migration Act 1958 (Cth), ss.3, 5E, 411, 474, 476

Federal Circuit Court Act 1999 (Cth) s.17A
Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Agar v Hyde (2000) 201 CLR 552

Johnstone v The Commonwealth (1979) 143 CLR 398

MZXOT v Minister for Immigration (2008) 233 CLR 601
Spencer v The Commonwealth of Australia (2010) 241 CLR 118

First Applicant: AUI16

Second Applicant: AUK16

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 824 of 2016

Judgment of: Judge Dowdy

Hearing date: 8 June 2016

Date of Last Submission: 8 June 2016

Delivered at: Sydney

Delivered on: 10 June 2016

REPRESENTATION

The First Applicant appeared in person.

No appearance for the Second Applicant.

Counsel for the Respondent: Mr McLaren (Solicitor).

Solicitors for the Respondent: Minter Ellison.

ORDERS

1. The application filed in this Court on 5 April 2016 herein is dismissed pursuant to s.17A of the Federal Circuit Court Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicants are ordered to pay the First Respondent’s costs in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 824 of 2016

AUI16

First Applicant

AUK16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicants by application filed in this Court on 5 April 2016 seek judicial review (the application) of a decision of a Delegate (the Delegate’s decision) of the First Respondent (the Minister) dated 11 August 2015 refusing to grant them Subclass XA Protection visas.

2. The substantive grounds relied upon in the application were as follows:

   The Delegate failed to afford procedural fairness.

   The Delegate failed to provide an interview when it apparently needs for our case (sic).

   The Delegate made a finding without supporting evidence.

3. The application also contained grounds seeking an extension of time, which were:

   1.The delegate failed to notify me in respect of decision made by the department on 11/8/2015.

   2.The delegate failed to provide me any opportunities to make claim.

   3.We did not know the delegate’s decision until 23 March 2016 after the department provided copy of decision to us.

4. At the hearing the first named Applicant also asserted from the Bar Table that he did not receive a copy of the Delegate’s decision.

5. The only evidence relied on at the hearing was the affidavit of the Applicant sworn 5 April 2016 which merely annexed a copy of the Delegate’s decision dated 11 August 2015.

6. Before the Delegate the first named Applicant, who is a male citizen of Malaysia aged 40 years, was the principal Applicant and the second named Applicant, who claimed to be a member of the first named Applicant’s family unit as wife, aged 41 years, was a secondary applicant.

7. In these circumstances I infer that it is the Applicants’ position that they were not advised of the Delegate’s decision until well after the specified period of 28 days in which they could seek a review to the Administrative Appeals Tribunal (the AAT). There is no other evidence in this regard but it seems quite clear that the Applicants did not seek a merits review of the Delegate’s decision to the AAT but sought relief in this Court.

8. On the first return date in this Court being 29 April 2016 the Minister indicated that he wished to apply for summary dismissal of the application, on the basis set out in the Grounds of Opposition stated in his Response filed 26 April 2016 to the effect that the Delegate’s decision was a primary decision as defined in s.476(4) of the Migration Act 1958 (Cth) (the Act) and that this Court did have jurisdiction to review the Delegate’s decision. The actual Grounds were stated in the Response as follows.

   1.The applicants have applied for an extension of time within which to apply for judicial review of a decision of a delegate of the first respondent dated 11 August 2015. The first respondent says that the delegate’s decision is a primary decision as defined in subsection 476(4) of the Act, and that the Court does not have jurisdiction to review the delegate’s decision: see subsection 476(2)(a) of the Act.

   2.The first respondent intends to apply for this application to be summarily dismissed pursuant to rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) at the first court date directions hearing listed on 29 April 2016.

9. On 29 April 2016, when the first named Applicant appeared with an interpreter, I set the foreshadowed application for summary dismissal down for interlocutory hearing on Wednesday 8 June 2016 and dispensed with any requirement for the Minister to file any formal application for summary dismissal. I directed the Minister to serve an Outline of Submissions setting forth the basis for the application for summary dismissal by 6 May 2016. At that time I explained to the first named Applicant the nature of the application for summary dismissal which the Minister intended to bring.

10. The affidavit of Mr McLaren sworn 9 June 2016 establishes that on 5 May 2016 a copy of the Minister’s Outline of Submissions was sent by post to the Applicants’ address for service as well as to the email address given on the application.

11. At the hearing Mr McLaren appeared on behalf of the Minister and the first named Applicant appeared with the assistance of an interpreter. There was no appearance for the second named Applicant and whilst this obviously could be an important matter in most contested hearings I do not consider that having regard to the result to which I consider I must come that anything further could have been said by the second named Applicant than was said in effect on her behalf by the first named Applicant.

Jurisdiction

1. In the context of the present application “jurisdiction” is the authority to decide.

2. As was said by Jacobs J in Johnstone v The Commonwealth (1979) 143 CLR 398 at page 404:

   The word “jurisdiction” can be used in a number of different senses but I am satisfied that in this context it has the meaning which the word has in ss. 75, 76 and 77 of the Constitution. It means the legal power and right to determine the matter. That legal right and power must exist both in respect of subject matter and of parties.

Relevant Provisions of Migration Act

1. The argument for the Minister in support of his application for summary dismissal is that the Delegate’s decision was “a primary decision”, as that term is defined in s.476(4) of the Act being a “privative clause decision”, or a “purported privative clause decision” that would have been reviewable under Part 7 of the Act under s.411(1)(c).

2. A “privative clause decision” is defined in s.474(2) of the Act. Section 5E defines a “purported privative clause decision” and s.411(1)(c) is relevantly as follows:

   Definition of Part 7-reviewable decision

   (1)  Subject to subsection (2), the following decisions are Part 7-reviewable decisions:

   …

   (c)  a decision to refuse to grant a protection visa, other than a decision that was made relying on:

   (i)  subsection 5H(2), or 36(1B) or (1C); or

   (iii)  paragraph 36(2C)(a) or (b);

   …

3. There can be no grounds for considering that the exceptions to s.411(1)(c) of the Act found in subsections (i) and (iii) thereof are applicable.

4. In my view the Delegate’s decision refusing to give a visa is a “privative clause decision”: see ss.474(2) and (3)(b) of the Act.

5. In my view the Minister’s argument is correct. I consider that the Delegate’s decision was “a primary decision” under s.476(4)(b) of the Act in that it would have been a Part 7 reviewable decision if an application for review had been made by the Applicants to the AAT within the relevant specified period. In these circumstances it is clear that this Court has no jurisdiction in relation to the Delegate’s decision because s.476(2) of the Act expressly provides that this Court has no jurisdiction in relation to such a decision.

6. It is sufficient for present purposes to refer to the statement of Gleeson CJ, Gummow and Hayne JJ, in MZXOT v Minister for Immigration (2008) 233 CLR 601 at 615 ([11])

   11.…Section 476(1) of the Act provides that, subject to that section, the FMC has the same original jurisdiction in relation to migration decisions as does this Court under s 75(v) of the Constitution. However, par (a) of s 476(2) states that the FMC has no jurisdiction in relation to “a primary decision”; that term is defined in s 476(4) so as to include “a privative clause decision or purported privative clause decision” that would have been reviewable under Pt 7 (dealing with reviews by the RRT of protection visa decisions) if an application for that review had been made within the specified period.

Summary Dismissal

1. In these circumstances the Minister submits that the Court should dismiss the application under either or both of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) or r.13.10 of the Federal Circuit Court Rules 2001 (Cth). The Minister submits that the Court should be satisfied that the Applicants have no reasonable prospect of successfully prosecuting their application.

2. Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides relevantly as follows:

   17A  Summary judgment

   ...

   (2)  The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

   (a)  the first party is defending the proceeding or that part of the proceeding; and

   (b)  the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

   (3)  For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

   (a)  hopeless; or

   (b)  bound to fail;

   for it to have no reasonable prospect of success.

   (4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.

3. Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) provides as follows:

   13.10The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

   (a)  the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

   (b)  the proceeding or claim for relief is frivolous or vexatious; or

   (c)  the proceeding or claim for relief is an abuse of the process of the Court.

4. I am conscious that any power of summary dismissal should be exercised with caution. In Agar v Hyde (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ commented as follows at pages 575-576 ([57]):

   Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

5. To similar effect French CJ and Gummow J said in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 ([24]):

   The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:

   “The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”

6. However, even having regard to the necessity for caution in exercising the power to summarily dismiss I am of the view that the application does not have any reasonable prospects of being successfully prosecuted in this Court because it is clear that this Court has no jurisdiction to hear the application.

7. Accordingly, in the circumstances, I make the following orders:

   i)The application filed in this Court on 5 April 2016 herein is dismissed pursuant to s.17A of the Federal Circuit Court Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth).

   ii)The Applicants are ordered to pay the First Respondent’s costs in the amount of $3,416.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  10 June 2016