BAQ18 v Minister for Home Affairs

[2018] FCCA 1900

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAQ18 v MINISTER FOR HOME AFFAIRS [2018] FCCA 1900

Catchwords:
MIGRATION – Applicant applied for a protection visa which was refused – applicant receives notification of delegate’s decision more after 28 days after the delegate’s decision – applicant applies for judicial review in relation to delegate’s decision – whether Court has jurisdiction to hear application – no jurisdiction – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.474, 476
Federal Circuit Court Rules 1991 (Cth) rr.1.05(2), 1.06(1), 31.24, 42.06
Federal Court Rules 2011 (Cth) r.31.24

Applicant: BAQ18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 566 of 2018

Judgment of: Judge Manousaridis

Hearing date: 19 June 2018

Date of Last Submission: 19 June 2018

Delivered at: Sydney

Delivered on: 19 June 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitor for the First Respondent: Ms A Zinn of Mills Oakley Lawyers

ORDERS

1. The notice of objection to competency filed by the respondent is upheld.

2. The application is dismissed.

3. The applicant pay the respondent’s costs set in the amount of $2,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 566 of 2018

BPH16

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The question before me today is whether the Court has jurisdiction to entertain the claim for relief made in an application filed with this Court on 5 March 2018.  By that application, at least on its face, the applicant seeks orders to set aside a decision made by a delegate of the respondent (Minister) on 18 September 2017 not to grant the applicant a Protection (Subclass XA 866) Permanent Protection Visa (Protection visa).

2. I should note briefly how this question of jurisdiction came before me.  As is the usual course, on the filing of an application the matter was listed for a first Court date on 26 March 2018.  On 23 March 2018 the Minister filed a document titled “Notice of Objection to Competency”.  At the directions hearing, the Registrar ordered that there be set out before me today an interlocutory application. That interlocutory application is one that flows from the Minister filing the notice of objection to competency. In other words, the order the Registrar made was made in response to the Minister’s application that the question of competency in relation to the application be heard and determined before the hearing of the application. 

3. The Minister accepts that Part 44 of the Federal Circuit Court Rules 1991 (Cth) (FCC Rules) which governs proceedings under the Migration Act 1958 (Cth) (Act) does not provide for the filing of a notice of objection to competency. The notice of objection to competency which the Minister has filed has been fashioned to or adapted from r.42.06 of the FCC Rules which provides for notice of objection to competency in relation to applications brought to this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth). That Rule provides as follows:

   (1) A respondent who objects to the competency of an application must, within 14 days after being served with the application, file a notice of objection to competency:

   (a)   in accordance with the approved form; and

   (b)   that briefly, but specifically, states the grounds of the objection.

   (2)The applicant carries the burden of establishing the competency of an application.

   (3)A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the application.

   (4)   If a respondent has not filed a notice under subrule (1), and the application is dismissed by the Court as incompetent, the respondent is not entitled to any costs of the application.

   (5)   If the Court decides that an application is not competent, the application is dismissed.

4. The Minister submits that r.42.06 of the FCC Rules is available to raise questions as to the Court’s competency in relation to applications brought under the Act which, as I have already mentioned, are regulated by rules contained in Part 44 of the FCC Rules.  The Minister relies on r.1.06(1) of the FCC Rules which provides that:

   The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.

5. In my opinion, r.1.06(1) is not a mechanism that is available to permit the procedure provided for by r.42.06 of the FCC Rules to apply to proceedings under the Act which are regulated by the rules in Part 44 of the FCC Rules. That is so because r.1.06(1) deals with dispensation with compliance, and the Minister’s reliance on r.42.06 cannot be characterised as dispensation with compliance of any rule.  That difficulty, however, is no bar to the Minister having filed a notice of objection to competency.

6. It so happens that the Federal Court Rules 2011 (FC Rules) do have a provision for the filing of notices of objection to competency in relation to applications brought under the Act, and the relevant rule is contained in r.31.24 of the FC Rules. The rule in r.42.06 of the FCC Rules is, in substance, the same as r.31.24 of the FC Rules. Under r1.05(2) of the FCC Rules is provided that:

   If in a particular case the Federal Circuit Court Rules are insufficient or inappropriate, the Court may apply, among other rules, the Federal Court Rules in whole or in part and modified or dispensed with, as necessary.

7. In my opinion, it is appropriate to invoke r.1.05(2) of the FCC Rules so as to apply r.31.24 of the FC Rules to the circumstances of this case. It is obviously important that the question of the jurisdiction of the Court should be dealt with as soon as it is raised and before the substantive application is determined by the Court. And it is also appropriate that the question of jurisdiction be the subject of notification, which is the principal object of the filing of a notice of objection to competency.

8. Having dealt with these procedural issues, it is necessary now to turn to the question of jurisdiction that is raised by the notice of objection to competency.  This requires that I first set out briefly the facts that have given rise to the application. 

9. The applicant, who is a citizen of the People’s Republic of China, arrived in Australia on a 600 visitor visa on 25 March 2017.  On 5 June 2017 he applied for a Protection visa.  On 18 September 2017 a delegate of the Minister refused that application. The notification of the delegate’s decision was given by post and, it appears, by registered post.  There is no doubt that the local post office left a notification at the address for service of the applicant, indicating that there was available a letter for collection from the local post office.  On the applicant’s case he was unaware that that notification related to him.  The consequence of all of this, again, on the applicant’s case, is that the applicant did not become aware of the delegate’s decision until more than four weeks after the date of the decision.

10. That gave rise to potential difficulties because any right of review the applicant may have had in relation to the delegate’s decision – and by rights of review, I mean a right to apply to the Administrative Appeals Tribunal – had to be exercised within a specified time period which, without having looked at the particular provision in this case, I will assume is 28 days. 

11. It would have been open to the applicant to have applied to the Tribunal, even though he, on his case, became aware of the delegate’s decision more than 28 days after it was made, and contend before the Tribunal that he had not been notified.  That would have been an issue which the Tribunal would have needed to consider because the question of notification of the delegate’s decision would have been relevant to calculating the time by which an application for review could have been made to the Tribunal. Whether or not an application is made within the prescribed time to the Tribunal is a question going to the jurisdiction of the Tribunal, and the Tribunal would have had jurisdiction to consider and determine, though not conclusively, when the applicant had in fact been notified, having regard to the provisions of the Act and the Migration Regulations 1994 (Cth), and to determine whether any application to it was brought within the prescribed time. That decision by the Tribunal, if it was adverse to the applicant, could, in turn, have been the subject of a challenge in this Court.  The applicant, however, made no application to the Tribunal.  He instead filed an application with this Court, and I now turn to what is contained in that application.

12. The application is in the prescribed form and it asks of applicants who wish to file an application in the Court to include details and to place crosses next to the boxes provided for. Under the heading “Migration Decision Details” there are a number of boxes differentiating different decisions.  One of those is:

    A decision made by the Minister or another person under the Migration Act.

    There is a cross placed in the box next to those words, and underneath the words which I have just stated the decision‑maker was identified, his position, and the date of decision, namely, 18 September 2017.

13. On the face of the application, therefore, the subject of the application is the delegate’s decision made on 18 September 2017 not to grant the applicant a protection visa. The application assumes that it is made out of time, which reinforces what has expressly been made clear by the crossing of the box to which I have referred that the relevant decision that is being sought to be reviewed is the delegate’s decision.

14. In that part of the application under the heading “Grounds of Application for Extension of Time”, the complaint is made that the applicant did not receive the notification of the decision from the delegate, and the complaint, as I read it, is that the delegate ought to have communicated the delegate’s decision to the email address the applicant had provided to the Department of Immigration and Border Protection, rather than to the applicant’s postal address. In the heading “Grounds of Application”, grounds are stated which appear to be relevant to his claim for protection, and I need say nothing further about that. I finally refer to the section of the application which is headed “Final Orders Sought by Applicant/s”.  Again, there are a number of boxes, next to which there are different forms of relief.  There is crossed the boxes next to those parts which refer to the quashing of a decision of the Tribunal, Immigration Assessment Authority or Minister, or a writ of mandamus. 

15. I then turn to the question of jurisdiction, and in particular to the objections raised by the Minister in his notice of objection to competency. The jurisdiction of the Court to hear applications in relation to decisions made under the Act is conferred by s.476(1) of the Act which provides that the Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. That, however, is subject to s.476(2) of the Act. That subsection provides that the Court has no jurisdiction in relation to a number of decisions specified in that subsection. Relevant to the application that is before me is the decision referred to in paragraph (a), namely, “a primary decision”. 

16. In s.476(4) of the Act the expression “primary decision” is defined to mean, among other things a “privative clause decision or purported privative clause decision that is reviewable under Part… 7” of the Act. The expression “privative clause decision” is defined in s.474(2) as a “decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)”. That definition excludes various decisions set out in s.476(4) and s.476(5) of the Act, but these are not relevant to what I have to consider today.

17. The Minister submits that the delegate’s decision made on 18 September 2017 refusing to grant the applicant a protection visa is a “primary decision” within the meaning of s.476(4) of the Act. The Minister submits that the delegate’s decision is a decision that is reviewable under Part 7 of the Act and it is reviewable under Part 7 of the Act because it is a decision which falls within the definition of “Part 7 Reviewable Decisions” identified in s.411 of the Act. In particular, the Minister submits it is a decision falling within section 411(1)(c), namely, a “decision to refuse to grant a protection visa”. That paragraph excludes certain decisions which were made in reliance on provisions set out in that paragraph, none of which is relevant to what I have to determine. 

18. I explained to the applicant, as best I could, the nature of the grounds on which the Minister contended that this Court does not have jurisdiction.  The applicant submitted that he had not received notification of the delegate’s decision within such time as would have enabled him to exercise his rights to apply within 28 days to the Tribunal for review of the delegate’s decision. 

19. The Minister submitted that whether or not the applicant was notified or properly notified does not affect the competency or, on the Minister’s submissions, the absence of any competency of this Court to review the delegate’s decision. There is no doubt in my mind that, to the extent the application the applicant filed is properly to be characterised as an application directed to the decision of the delegate, this Court does not have any jurisdiction because that decision is a “primary decision” within the meaning of s.476(4) of the Act. That is, the delegate’s decision is a decision to refuse to grant a protection visa. Such decision is a decision of an administrative character made under the Act and therefore is a privative clause decision. The decision, in turn, is a Part 7 reviewable decision, being a decision of the type identified in s.411(1)(c) of the Act, namely, a “primary decision”. Being a primary decision, therefore, it is excluded from the operation of s.476(1) of the Act.

20. In the course of the hearing, it occurred to me – and I raised this with Ms Zinn, who appears for the Minister, and with the applicant – that one way of reading the application –or at least the substance of what was being sought in the application – was that the applicant was, in truth, not complaining about the decision the delegate made but was complaining about his not having been properly or, in fact, at all notified of the delegate’s decision. My initial thought was that if the application is so characterised, the subject of the application is not the primary decision but could be characterised as an application for some form of declaratory relief. 

21. Ms Zinn submitted that that analysis was not available on the application that was before the Court. Ms Zinn submitted that the only jurisdiction this Court has under s.476 is jurisdiction in relation to migration decisions. The only decisions that have been made or could reasonably be said to have been made which is or are the subject of the application filed by the applicant, is a decision or decisions of the delegate. I accept that submission. Even if that submission were incorrect and if it could not be said that the subject of the complaint was not a primary decision within the meaning of s.476(4), this Court’s jurisdiction under the Act is not at large. It is limited in s.476(1) of the Act to migration decisions. Even if the application were to be construed as an application for declaratory relief and there were no decision of the delegate, there would be no relevant migration decision which would attract the jurisdiction under s.476(1) of the Act.

22. For these reasons, therefore, I conclude that the Minister’s notice of objection to competency must be upheld; and it also follows that the application must be dismissed for want of competency.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 12 July 2018