BDQ16 v Minister for Immigration
[2017] FCCA 703
•11 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDQ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 703 |
| Catchwords: MIGRATION – Application in a Case to reinstate – whether orders made refusing an extension of time are interlocutory or final – court may vary or set aside order after it is entered if the orders are interlocutory – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 476A, 477 Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05 |
| Cases cited: BDQ16 v Minister for Immigration & Anor [2016] FCCA 3464 Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 |
| Applicant: | BDQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1196 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 21 December 2016 and 7 February 2017 |
| Date of Last Submission: | 7 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The Application in a Case made on 8 December 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1196 of 2016
| BDQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
To understand the basis for the current Application in a Case before the Court, it is necessary to set out the following background.
On 24 March 2016, the Administrative Appeals Tribunal affirmed the decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant. The applicant had the opportunity to apply to this Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) to seek judicial review of that decision. However, s.477(1) of the Act provides that that right must be exercised within 35 days of the date of that decision (see Schedule 1 to this judgment for the terms of those sections of the Act at the relevant time).
The applicant did not make any application to this Court pursuant to s.476 of the Act within that 35 day period. After the expiry of that period, he did make an application pursuant to s.477(2) of the Act, seeking that the Court extend the time in which he could make a competent application pursuant to s.476 of the Act, on the basis that it was in the interests of the administration of justice to do so.
On 14 September 2016, the application made pursuant to s.477(2) of the Act was set down for hearing on 3 November 2016. At the hearing, the applicant appeared in person. The Court refused the application to extend time. The Court’s judgment was delivered “ex tempore” (see BDQ16 v Minister for Immigration & Anor [2016] FCCA 3464). The orders made on 3 November 2016 were as follows:
“1. The application to extend time made pursuant to Section 477(2) of the Migration Act 1958 (Cth) is refused.
2. The applicant pay the first respondent’s costs set in the amount of $3,606.”
On 8 December 2016, with legal representation, the applicant filed an Application in a Case (“AIC”), in which he sought that the proceedings be reinstated, and that he be granted an extension of time pursuant to s.477(2) of the Act within which to make an amended application to the Court pursuant to s.476 of the Act. He provided an affidavit in support of the AIC filed on the same date.
The applicant’s counsel, and the Minister through his solicitor, appeared before the Court on 21 December 2016. A number of issues emerged.
First, whether the proceedings, and order one (see above at [4]), made on 3 November 2016 were interlocutory or final in nature.
Second, whether the applicant had provided a satisfactory explanation as to why the matter he now sought to agitate was not raised earlier. Or, in other words, had there been a material change in circumstances that calls for the order to be set aside.
Third, the merits of the sole ground of the proposed “amended” application pursuant to s.476 of the Act. I understood from the applicant’s counsel on 21 December 2016, that the main thrust of the AIC was the meritorious nature of this ground, and that it should be given the opportunity of consideration by the Court.
There are at least two reasons to address this “third” issue first. One, it is the crux of the applicant’s AIC. If there is no merit in the proposed ground, then no matter the disposition of the other issues, granting the orders now sought by the applicant would be an exercise in futility. Two, the “first” issue is determinative of the AIC. The “second” issue, if not made out by the applicant, would still leave the “third” issue as central.
The applicant proposes that the Tribunal fell into jurisdictional error when considering whether the applicant would face the requisite level of harm on return to his country of nationality (Sri Lanka), by reason of being a failed asylum seeker who had sought asylum overseas.
At [51] (at CB 157) of its decision record, the Tribunal stated:
“On balance, the Tribunal accepts that the applicant will, as a returnee to Sri Lanka, go through a process which will bring him into contact with the Sri Lankan authorities [the ‘first sentence’ – see below]. However, the Tribunal is not satisfied, on the evidence before it, that he has any adverse profile which will be uncovered through those processes, or that being a returned Tamil failed asylum seeker, singularly or in combination with what is accepted of the balance of the applicant’s personal or family profile, would give rise to differential treatment for a Convention reason, or that the process he faces on returning to Sri Lanka as a failed Tamil asylum seeker involves, amounts to, reveals or gives rise to a real chance of serious harm, either at the airport in Sri Lanka or on the applicant’s return to his home, or at any point in the reasonably foreseeable future in Sri Lanka [the ‘second sentence’ – see below].”
[Emphasis added.]
The applicant relies on Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (“Rajalingam”) at [55] - [56]:
“[55] It can be seen from this passage that if the RRT finds that it is only slightly more probable than not that an alleged relevant event has not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution. It is clear that the comment in the joint judgment is not confined to past events (as in Wu Shan Liang) involving persons other than the applicant. Their Honours give as an example a finding that it was slightly more probable than not that the applicant had not been punished for a Convention reason.
[56] If, on the other hand, it appears that the RRT has no ‘real doubt’ that its findings were correct, it is not bound to consider whether those findings might be wrong. Nothing in the reasoning of the joint judgment suggests that if the RRT, although apparently having no real doubt as to its findings, should have had doubts, it is bound to consider the possibility that the relevant event might have occurred. Doubtless, this is because an objective test of this nature would require the Court to transgress the boundaries of judicial review, by considering the merits of the RRT’s decision. The passage does not explicitly address the approach that should be taken by the Court where the RRT does not make it clear whether it had no real doubt about its findings as to past events (or non-events) , or whether it made the findings on the bare probabilities.”
The applicant submits that in the preceding paragraphs leading up to the Tribunal’s decision at [51] (at CB 157), the Tribunal set out country information concerning the return of failed asylum seekers to Sri Lanka (see [44] at CB 155 to [50] at CB 157 under the heading of “Failed asylum seeker”). This information was essentially from two different sources. The applicant asserts that the information was in conflict in certain respects.
The applicant’s argument is that the words “[on] balance” as they appear at the beginning of [51] (at CB 157) of the Tribunal’s decision record, applied “principally” to the second sentence in that paragraph. That is, the reference to “on balance”, applied to all of the matters referred to in the second sentence at [51] (at CB 157).
The applicant says that given that what the Tribunal “accepted” as expressed in the first sentence, was not, in light of the country information, contentious, then the phrase must have been meant to refer to all the matters referred to in the second sentence of [51] (at CB 157). That is, the remainder of the paragraph.
In this light therefore, the Tribunal applied a balance of probabilities “test” which was contrary to what was said in Rajalingam.
It is trite to say that Tribunal decision records are to be read fairly by the Court (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). The applicant’s argument does not address or explain the use of the word “[h]owever” as it appears at the beginning of the second sentence in [51] (at CB 157). Contextually, although it must be said it is poorly structured, a fair reading of [51] (at CB 157) of the Tribunal’s decision, is that the phrase “on balance” is, on its face, and at a first reading, superfluous. However, its use can be fairly explained as follows.
The Tribunal accepted that as a returnee the applicant would go through a process that would bring him into contact with the Sri Lankan authorities as he had claimed. “However” (as the Tribunal stated), the Tribunal did not accept, given the applicant’s profile, that what he faced on return would amount to, or give rise to, a real chance of serious harm.
It is to be remembered that the applicant made a large number of claims. The Tribunal had “significant concerns” regarding the truth of central aspects of the applicant’s claims and evidence, as well as with his general credibility as a truthful witness (see [9] at CB 148 and see further at [11] at CB 148, [15] at CB 149, [17] at CB 150, [19] at CB 150 to [23] at CB 151, and [25] at CB 151 to [29] at CB 152).
In short, the applicant made many factual claims that the Tribunal rejected on the basis of its adverse credibility finding. The applicant also claimed that he would face harm on return to Sri Lanka from the Sri Lankan authorities because of, amongst other things, his illegal departure from that country.
In this context, but in light of the country information, the Tribunal at [51] (at CB 157) accepted “on balance”, that he would come into contact with the Sri Lankan authorities. That is, notwithstanding that the Tribunal rejected much of the applicant’s claims on credibility grounds, “on balance”, and in light of the country information, it did accept this particular claim made by the applicant.
“However”, for the reasons given throughout the Tribunal’s decision, which, after all, must be read holistically, it did not accept he would face harm as a failed asylum seeker.
When read fairly and holistically, far from not proceeding consistently with Rajalingam, the Tribunal, in effect, gave the applicant the benefit of the doubt that he would come into contact with the Sri Lankan authorities on return to Sri Lanka. This was despite its “significant concerns” about his credibility, which included a large part of what he had otherwise said to the Tribunal.
The words “on balance” at [51] (at CB 157) when fairly read, represented the Tribunal’s proper evaluation and weighing of its significant concerns about the applicant’s credibility, as against the country information which indicated that he would come into contact with the Sri Lankan authorities on return to Sri Lanka as a failed asylum seeker.
The applicant’s proposed ground has no merit. The entire stated reason for the AIC is baseless. This stands as an independent basis on which to dismiss the AIC, notwithstanding the other factors relevant to the consideration of whether the AIC should be allowed. Even if all these other factors were in the applicant’s favour, the lack of merit in the “proposed” ground makes the granting of the AIC futile.
Nonetheless, I did consider these other elements. The “second” issue (see [8] above) raises the question as to why the assertion of jurisdictional error which the applicant now seeks to raise, was not raised at an earlier time. That is, what has materially changed in the relevant circumstances such as to explain the “delay” in raising this assertion, or in the alternative, to argue in favour of allowing the AIC.
Subject to the consideration below as to why the order made on 3 November 2016 in the proceedings was final or interlocutory, it is important to note the tension between the principle of finality in litigation, and what is in the overall interests of justice (NAJN v Minister for Immigration [2003] FMCA 414, SZSNJ v Minister for Immigration & Anor (No 2) [2013] FCCA 260, SZIDH v Minister for Immigration & Citizenship [2007] FCA 369, Capital Webworks Pty Ltd v Adultshop.Com.Limited & Ors [2002] FCA 389; (2002) 116 FCR 255, Wati v Minister for Immigration and multicultural Affairs (1997) 78 FCR 543; (1997) 148 ALR 578, Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 and Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300).
The applicant has not provided a satisfactory explanation in answer to the question of why this issue was not raised at an earlier time. In fact, the applicant has not sought to explain or address this question with reference to his own particular circumstances. Rather, and generally, he relies on the proposition that the interests of justice require the granting of the AIC.
As is clear from what is set out above, this is not a case where the applicant’s application to extend time was dismissed at the first Court date. The applicant was given the opportunity to obtain legal advice. His application to extend time was made on 11 May 2016. The hearing of the application to extend time was on 3 November 2016. That is, nearly 6 months later.
At best, the explanation now proffered, only through submissions and not supported by evidence, for not raising at that earlier time, the ground which the applicant now seeks to raise, is that it did “not occur” to those who were assisting the applicant at that time. There is no evidence as to who those persons may have been.
As the Minister submits, correctly in my view, even if the order made on 3 November 2016 in refusing the application to extend time was an interlocutory order, to succeed on his AIC, the applicant would need to show some material change in circumstances such as to justify revisiting the question of the extension of time (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 and Liu v The Age Company Limited [2016] NSWCA 115).
In my view, the applicant’s argument that he now has competent legal representation and has put forward an arguable ground, cannot be said to constitute a “material change” in circumstances. This also argues against the granting of the relief sought in the AIC.
The “first” issue identified above (at [7]), is whether the order refusing the extension of time was “final” or “interlocutory”. The importance of this is that r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) which the applicant ultimately identified as the formal basis of his AIC, contemplates the setting aside of an order made by the Court “if the order is interlocutory”. The orders do not contemplate the setting aside of a final order.
The applicant says the order made on 3 November 2016 was interlocutory. The Minister says it was final and therefore not amenable to the application of Rule 16.05(2)(c) of the FCC Rules.
It must be said, that the Minister raised some attractive arguments in support of his central proposition.
The first argument derives from the proposition that the determination of whether an order is final, is whether it finally determines the rights of the parties having regard to the legal effect of the order (citing Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423, Licul v Corney (1976) 50 ALJR 439 and Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246).
There did not appear to be a dispute between the parties that “final” and “interlocutory” may mean different things in different contexts.
The Minister’s argument proceeded from the proposition that an order will not be “final” where it creates neither a “res judicata” or an “issue estoppel”. That is, the doctrine of “res judicata” only applies to orders that are final and conclusive and not to interlocutory orders (Thoday v Thoday [1964] 2 WLR 371; [1964] P 181 and Blair v Curran [1939] HCA 23; (1939) 62 CLR 464). Further, the doctrine applies to subsequent actions where, in substantive terms, the same cause of action was the subject of the earlier judgment. Similarly, a party is bound by a judgment whether or not an element of the cause of action it wishes to subsequently contest was in fact contested (Attorney-General v Kowalski [2015] SASC 123).
The Minister also argued that an order will not be “final” unless it was based, and made on, a complete assessment of the factual and legal issues before the Court. That is, the order finally determined the rights of the parties. The applicant did not appear to contest this proposition.
However, the applicant’s position is best explained with his reliance on Macatangay v New South Wales (No 2) [2009] NSWCA 272 (“Macatangay”), on which the Minister also relies, at [11]:
“The order of Grove J was interlocutory. This Court decided that in Wickstead v Browne (1992) 30 NSWLR 1 in dealing with the relevantly indistinguishable provisions of Part 13 of the then Supreme Court Rules, citing relevant decisions of the High Court and Privy Council: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 440; Tampion v Anderson [1973] VicRp 82; (1973) 48 ALJR 11 at 12. The order for dismissal may be seen to have a high degree of finality in practical effect, but the test is whether it was final in legal effect: Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104-105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res judicata estoppels. Whatever jurisprudential complexities lie behind the analysis, as the Privy Council made clear in Tampion v Anderson, clarity and consistency in approach is vital. The courts have had a consistent approach to the status of orders for, or to the effect of, summary dismissal since the 19th century: they are interlocutory. The High Court most recently reiterated this in In the Matter of An Appeal by Luck [2003] HCA 70; 78 ALJR 177 at 178-179, where the clear rule in Tampion v Anderson was expressly affirmed. The Court (McHugh ACJ, Gummow and Heydon JJ) said at 179:
‘An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.’”
This reveals the real dispute between the parties. That is, the understanding of what occurred on 3 November 2016 when the Court dismissed the application to extend time.
The Minister says that what occurred was based on the complete assessment of the factual and legal issues relevant to the question of the extension of time. The order was therefore final. The applicant did not, it must be said, satisfactorily answer the essence of the Minister’s submission, but said that what occurred was not final because a number of authorities generally found that an application to extend time is interlocutory.
The applicant, as mentioned above, relied on Macatangay. In that case, the New South Wales Court of Appeal, albeit dealing with an order for summary dismissal rather than an extension of time, stated the relevant issue revolves around whether there was a triable issue, and whether there was a final determination of rights of the parties or the legal effect of the order was to create a res judicata.
The dispute between the parties now can be seen as arising from the different perspectives on what is said to be the central issue giving rise to the Court’s order.
The applicant’s perspective stems from, and focuses on, the outcome that he seeks to achieve. That is, he wants a protection visa. The application to extend time is seen as a part of that process in achieving that outcome. That is, having been refused a protection visa by the delegate, and in effect, the Tribunal, the applicant sees the proceedings before the Court as a possible means of achieving another attempt to press his claims for protection.
The Minister’s perspective stems from the relevant statutory scheme set out in the Act. It is clear, that the statutory intention in s.477(1) of the Act is to limit judicial review in this Court of Tribunal decisions, to those applications that are made within 35 days of the date of the Tribunal decision. If an applicant makes such an application, that applicant is obviously seeking to exercise the “right” to engage the jurisdiction of this Court to review migration decisions.
If however, the application is not made within that time period, the applicant loses the capacity to make a competent application under s.476 of the Act. That is, the applicant loses the capacity to engage this Court’s jurisdiction in relation to any relevant migration decision.
Section 477(2) of the Act plainly, as it states, is directed to ensuring that the interests of the administration of justice are upheld and provides a “failsafe” to the direction in s.477(1) of the Act. That is, that the Court may exercise discretion, where appropriate, to allow a case to be heard that otherwise would not be heard.
In my view, one weakness in the applicant’s approach is to see the act of applying for a protection visa as one that continues before this Court. Apart from stating the obvious, that the Court has no power to grant a protection visa, the Court’s role of ensuring that the Tribunal makes lawful decisions must be seen in light of the statutory limitation in the exercise of that role.
Not seeking judicial review within time, as mandated by the Act, brings to an end the applicant’s “right” to apply for a protection visa, seek merits review and ensure that the merits review has been conducted lawfully, and the decision made lawfully.
An application for an extension of time is not, in my view, on a proper understanding of the legislative scheme, some consideration, or even a conceptual part of that process. In that sense, the application for an extension of time stands alone, and independently, of the exercise of the applicant’s “rights” under the Act. It is, as set out above, a “failsafe” mechanism designed to ensure the proper administration of justice.
When seen in this “independent” light, the order refusing an application to extend time, is a statutorily available mechanism separate to, and apart from, “the application for the protection visa” and consequent merits, and then judicial review. It may be argued that it is not interlocutory because the discrete and contained issue that gave rise to the order is not whether there is jurisdictional error in the Tribunal’s decision, but whether time should be extended to enable an applicant to make a competent application to the Court pursuant to s.476 of the Act, that otherwise would not be competent.
It may be argued that the order made by the Court on 3 November 2016 “finally” determined the issue to which the application to the Court gave rise. That is, the extension of time application pursuant to s.477(2) of the Act.
It may also be argued separately, as the Minister does, that in any event, the applicant’s contention that the Tribunal fell into jurisdictional error was an issue determined “once and for all” by the Court’s order. That order, as is clear by what is required by the relevant authorities in considering an application to extend time, was fully considered by the Court on a number of factors. This included (but was not limited to) the fact that there was no arguable case raised such that the Tribunal’s decision was affected by jurisdictional error. That is, the matter was finally determined and the order was therefore final.
The Minister also raises a strong argument with his submissions that several textual features of the statute support the proposition that the order made, in the context of the application to extend time, was final and not interlocutory.
That is, the question posed by the language of s.477(2)(b) of the Act, with the focus on the interests of the administration of justice, reveal that what is relevantly required is an assessment of the “merits” of all the circumstances or relevant factors in determining whether an extension ought to be granted in the interests of the administration of justice. The authorities as to how to approach this question support the Minister’s contention (SZRIQ v Federal Magistrates Court of Australia[2013] FCA 1284; (2013) 236 FCR 442, SZUWX v Minister for Immigration and Border Protection[2016] FCAFC 77; (2016) FCR 456, MZZLD v Minister for Immigration and Border Protection[2016] FCA 1201, MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110, Ahmed v Minister for Immigration and Border Protection[2016] FCA 751 and SZTES v Minister for Immigration and Border Protection[2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen[1984] FCA 186; (1984) 3 FCR 344 at [18] – [23]). In that sense, the order is final in relation to the question of the extension of time.
The Minister also points to the statutory context within which s.477(2) of the Act appears. Pursuant to s.476A(3)(a) of the Act, there is no appeal to the Federal Court from a judgment leading to an order made refusing an extension of time pursuant to s.477(2) of the Act.
As the Minister submits, the explanatory memorandum to the Migration Legislation Amendment Bill No 2 2008 (Cth) (at [113]), reveals the intention to discourage unsuccessful protection visa applicants from using litigation to prolong their stay in Australia. I agree this also weighs in favour of viewing the Court’s order as final, given the “finality” that was intended by the insertion of s.477(2) into the Act.
If an order refusing the extension of time is made, then the effect of s.476A(3)(a) of the Act is to finally resolve the applicant’s right to judicial review of the Tribunal’s decision. In that light, if the order to refuse the extension of time under s.477(2) of the Act is regarded as interlocutory, then this would serve to undermine the effect of s.476A(3)(a) of the Act, which is directed to limiting the scope to which judicial review is available as a means of extending stay in Australia.
The argument is that the Parliament’s intention in relation to s.477(2) of the Act, does not contemplate that Parliamentary intention can be limited by a process flowing from a Rule of this Court (Rule 16.05(2)(c) of the FCC Rules), see SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75; (2008) 247 ALR 510; per French J at [34]):
“In SZICV [2007] FCAFC 39; 158 FCR 260, Buchanan J, with whom Besanko J agreed, observed that s 486A of the Act purported to limit the exercise of the original jurisdiction of the High Court in the same way as s 477 limited the jurisdiction of the Federal Magistrates Court and s 477A limited that of the Federal Court. He acknowledged that there was a challenge to the validity of s 486A then before the High Court in the Bodruddaza case and that if the issue for decision in SZICV [2007] FCAFC 39; 158 FCR 260 had been the same as that pending before the High Court , it might have been appropriate to await the High Court’s decision. He said at (at [46] – [48]):
However, in my view, the argument fails at the threshold. It is competent for Federal Parliament to impose limitations upon the jurisdiction of the Federal Magistrates Court, whether at the same time and in the same provision as jurisdiction is granted or at some other time and by some other provision. In my view the imposition of such a limitation is the intention and effect of s 477. The relevant provisions must be read conformably and in a way which gives them appropriate work to do as an harmonious legislative scheme. The opening grant of jurisdiction in
s. 476(1) – viz ‘the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution’ is a statutory, not a constitutional, grant of power. It does not prevail over limitations expressed in the same statute unless that results from a proper construction of the provisions as a whole. Clearly it does not prevail over the exclusions in s 476(2) to which the grant of jurisdiction is expressed to be subject. Neither, in my view does it prevail, as a matter of statutory construction, over the limitations expressed in s 477. Whatever might be said about the potential clash between s 486A and the reservation of authority to the High Court under s 75(v) of the Constitution, I do not accept that Parliament intended that the operation of s 477 should be limited in the way suggested in argument. Indeed, it seems clear that Parliament intended to limit the jurisdiction of each of the High Court, the Federal Court and the Federal Magistrates Court by time limits on applications to each court. Should this legislative intention be held to have failed, in the case of the High Court, by reason of the operation of the Consitutution, that will not signify that the intentional remains unrealised in relation to s 477.”
Further, the legislative intention is, on any view, clearly directed to limiting the time that those who do not have a substantive visa, and have been refused such a visa can remain in Australia. If the order were to be seen as interlocutory, there is nothing to prevent any unsuccessful applicant for a protection visa from making repeated, and theoretically infinite, Applications in a Case to this Court, and thus prolonging stay in Australia indefinitely by this device. That, on any view, is also contrary to the legislative scheme.
However, as powerful as the Minister’s arguments, and what is set out above may appear, for current purposes, they do not outweigh the one more powerful and compelling argument put by the applicant. That is, that there is Federal Court authority that explicitly states that an order by this Court refusing an extension of time pursuant to s.477(2) of the Act is interlocutory.
In BZAGD v Minister for Immigration and Border Protection [2016] FCA 670 (“BZAGD”) at [13], Rangiah J stated:
“The applicant has filed both a notice of appeal and an application for leave to appeal in this Court. The first application before the Federal Circuit Court was to set aside the notice of discontinuance, and the second was an application for extension of time to file the second application for review. Both applications were dismissed. The orders of the Federal Circuit Court were interlocutory, so that leave to appeal is required. The factors relevant to whether a grant of leave to appeal should be made are, principally, whether the decision from which leave to appeal is sought is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice would result if leave were refused, supporting the original decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-399.”
[Emphasis added.]
While both parties also made reference to BZAGS v Minister for Immigration and Border Protection [2016] FCA 862 (“BZAGS”), I respectfully note that in that case that while the applicant had made an application to this Court pursuant to s.477(2) of the Act, the order that was made by this Court before the Federal Court was made pursuant to r.13.03C(1)(c) of the FCC Rules dismissing the matter following the non-appearance of the applicant at the hearing. The applicant then filed an Application in a Case to have those orders in effect, set aside pursuant to r.16.05 of the FCC Rules, which was also subsequently dismissed by the primary judge.
In BZAGD, the applicant had made an application pursuant to s.477(2) of the Act, but subsequently filed a Notice of Discontinuance in those proceedings. The applicant then filed another application pursuant to s.477(2) of the Act in relation to the same migration decision, which, pursuant to argument by the first respondent, and apparent acceptance by the applicant, was in essence an application to set aside the Notice of Discontinuance filed in the former proceedings. The applicant, following Court direction, subsequently filed an Application in a Case in the former proceedings seeking leave to withdraw his Notice of Discontinuance. Both the Application in a Case and the second application made pursuant to s.477(2) of the Act were dismissed.
The Minister’s argument before the Court was that the Federal Court judgments, and in particular, what was said at [13] in BZAGD, must be seen in light of s.476A(3)(a) of the Act. That is, whether this Court’s orders refusing the extension of time were “interlocutory” or “final” did not matter, because there was no right of appeal due to s.476A(3)(a) of the Act, which is relevantly in the following terms:
“Limited jurisdiction of the Federal Court
…
(3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:
(a) a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2)”
The factual scenarios in both of these cases before the Federal Court are different to the current case. Both had some complexity not present in the current case (see BZAGS at [2] and BZAGD at [2] to [7]).
The Minister sought to explain what were said to be the “particular” circumstances of those cases, and that the current case was distinguishable, and therefore this Court should accept the Minister’s submissions as set out above. Part of these “particular” circumstances was that there was, with respect, no consideration by the Federal Court of whether the order not to extend time was interlocutory. The Federal Court in both cases proceeded on the basis that it was.
None of this assists the Minister in the current case. The applicant has pointed to a very clear statement by a Judge of a superior Court that, with respect, whether “considered” or not, is, in my view, binding on this Court.
It is also of note that in BZAGD, and for that matter in BZAGS, the Minister was represented by counsel. There is no indication from either judgment that the Minister sought to argue that the orders refusing the extension of time made by this Court pursuant to s.477(2) of the Act, were “final” and not “interlocutory”. Nor for that matter, in the circumstances of BZAGD, is there any indication that the Minister’s counsel raised the question of the application of s.476A(3)(a) of the Act, which may have been an available argument to the Minister.
Therefore, the order made by this Court on 3 November 2016 is, on the Federal Court authority, an interlocutory order.
However, for the reasons set out above, the order sought by the applicant in his AIC should be refused. Ultimately, I do not accept the applicant’s argument that there is merit in his proposed ground such that the interests of justice calls for the reinstatement of his application to extend time. I will make the appropriate order.
As a postscript I feel compelled to note that it is not helpful in the administration of justice for the Minister to adopt such conflicting positions on the issue of whether an order made pursuant to s.477(2) of the Act by this Court is final or interlocutory. In my view, had the applicant’s proposed substantive ground had merit the Minister’s unexplained and inconsistent approach to his arguments before the Courts relevant to the question of the nature of the order made pursuant to s.477(2) of the Act, would have been a factor weighing in favour of the applicant.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 11 April 2017
Schedule 1
Migration Act 1958 (Cth)
Section 476
Jurisdiction of the Federal Circuit Court
(1)Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2)The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a)a primary decision;
(b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c)a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;
(d)
a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3)Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4)In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or 7 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; or
(c)that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).
Section 477
Time limits on applications to the Federal Circuit Court
(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3)In this section:
date of the migration decision means:
(a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 - - the date of the written decision under that subsection; or
(b)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 - - the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7 - - the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca)in the case of a migration decision made by the Immigration Assessment Authority - - the date of the written statement under subsection 473EA(1); or
(d)in any other case - - the date of the written notice of the decision, or if no such notice exists, the date that the Court considers appropriate.
(4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
3
42
3