Bgi18 v Minister for Home Affairs

[2019] FCCA 659

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGI18 v Minister for Home Affairs [2019] FCCA 659

File number(s):

PEG 263 of 2018

Judgment of:

JUDGE STREET

Date of judgment:

15 March 2019

Catchwords:

MIGRATION – Application for a Protection visa – where applicant sought review of a decision of a delegate of the respondent – where the decision of Delegate has been identified as a reviewable decision – Court finds that is has no jurisdiction to review the decision – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s 13

Migration Act 1958 (Cth), s 476

Number of paragraphs:

16

Date of hearing:

15 March 2019

Place:

Sydney

Applicant:

In person

Counsel for the Respondent:

Mr P Knowles

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

PEG 263 of 2018

BETWEEN:

BGI18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	15 MARCH 2019

THE COURT ORDERS THAT:

1.The proceedings are dismissed for want of jurisdiction.

2.The Applicant pay the Respondent’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. These are proceedings that were commenced on 15 May 2018, purportedly seeking to challenge a decision of a delegate of the respondent (“the Delegate”) made on 9 May 2018. The proceedings were ones in respect of which the applicant is currently in detention, and is in Sydney.

2. The proceedings were originally commenced in Perth, and, on 31 August 2018, a Judge made orders for the matter to progress by way of the filing of a court book and giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.

3. The court book that has been filed identifies that there was a decision by the Delegate, made on 9 May 2018, which is a reviewable decision.

4. At the commencement of the hearing, the Court sought to explore whether the matter was within the Court’s jurisdiction. The first duty of the Court in hearing any matter is to determine whether it has jurisdiction.

5. Counsel for the respondent submitted that there was no jurisdiction, as the matter is reviewable, and there is currently an application pending before the Immigration Assessment Authority (“the Authority”) that is awaiting the outcome of these proceedings.

6. The Court sought to explore with the applicant why the applicant contends that there was jurisdiction. The applicant made reference to seeking to challenge a different decision to that identified in his application.

7. This Court only has jurisdiction in respect of a migration decision that falls within s 476 of the Migration Act 1958 (Cth) (“the Act”). It is apparent that the Delegate’s decision is not a migration decision in respect of which this Court has jurisdiction.

8. The applicant’s reference to an earlier decision in 2016 is not a decision that was the subject of an application made to the Court, and any such application would have required a very substantial extension of time, even if it had been within the Court’s jurisdiction, under s 477 of the Act.

9. Whilst the Court was seeking to explore with the applicant why the applicant contended that there was jurisdiction, the applicant decided to leave the courtroom and to not participate further in the hearing. The Court indicated that it was a matter for the applicant whether he sought to stay for the whole hearing or whether he wished to leave and that the matter would continue. The applicant had a real and meaningful opportunity to participate in the hearing by writing with the interpreter reading what the applicant wrote.

10. On the face of the material before the Court, the Court is not satisfied that it has jurisdiction in respect of the Delegate’s decision.

11. There is a prayer for relief. There are other prayers for relief in the application that do not identify any proper basis for those prayers to be sought before this Court. In terms of any migration decision, it is apparent that the applicant arrived as an unauthorised maritime arrival and holds no substantive visa entitling him to remain within Australia. There is no apparent basis for any of the relief sought in his substantive application. 

12. The Court has also looked at the submissions that were filed by the applicant. Those submissions fail to identify any basis upon which this Court could be said to have jurisdiction, and reflect nothing more than disagreement with the processes to which the applicant has been subject and reflect irrelevant assertions as to the applicant’s claim. The submissions included content alleging that the Delegate was described by the applicant as a “retard” which was not an appropriate or proper submission. The applicant’s submissions do not identify any basis upon which this Court could be said to have jurisdiction.

13. At the commencement of the hearing, the applicant took issue with the proceedings having been transferred to Sydney. The proceedings were transferred to Sydney as a result of orders made by Kendall J in Perth on 8 March 2019. Those were orders made in chambers under s 13 of the Federal Circuit Court of Australia Act 1999 (Cth), and further orders were made by this Court on 8 March 2019 in respect of that hearing and the attendance by the applicant at the hearing in Sydney. The applicant complained that he did not consent to the transfer. The Court informed the applicant that his consent was not necessary and that it was a matter for the Court to determine where proceedings should be held.

14. The applicant being in detention in Sydney is reason enough as to why the proceedings should be heard in Sydney. The Court notes, however, that there are also substantial difficulties with the hearing of matters in Perth at the present time for reasons that it is unnecessary to go into, and that this Court and other judges of the Federal Circuit Court are hearing matters from Perth in order to assist the Perth registry. That assistance is occurring both by way of video link as well as the transfer of matters, and also by Judges of the Court attending Perth. 

15. As the proceedings are not within the Court’s jurisdiction, the proceedings are dismissed for want of jurisdiction. 

16. The Court notes that, when the applicant was asked by the Court to identify himself orally, the applicant indicated that he could not speak. The applicant indicated that he had had an incident four years ago when he lost his voice as a result of an attempt to hang himself. The Court accordingly permitted the hearing to continue with the applicant engaging with the Court through the interpreter in writing, with the interpreter reading what the applicant wrote.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       21 May 2021