BJN16 v Minister for Immigration
[2017] FCCA 511
•22 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJN16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 511 |
| Catchwords: MIGRATION – Vacation of hearing pending application for special leave to appeal (and any appeal) in proceeding between other parties. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 375A, 438 |
| Cases cited: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 |
| Applicant: | BJN16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1183 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 17 March 2017 - In Chambers |
| Date of Last Submission: | 9 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 22 March 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Victoria Legal Aid |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
Order 2 made on 11 July 2016 fixing this proceeding for final hearing on 28 April 2017 be vacated.
The first respondent pay the applicant’s costs, if any, thrown away by reason of the vacating of the date of the final hearing on 28 April 2017, such costs to be taxed failing agreement.
The proceeding be listed for directions on 2 June 2017 at 9.30am.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1183 OF 2016
| BJN16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter is listed for final hearing on 28 April 2017. An application has been made by the first respondent (“Minister”) that the hearing be adjourned pending the hearing and determination by the High Court of Australia of an application for special leave to appeal (and any subsequent appeal) from a decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 (“Singh”). It appears that many cases in this court may be affected by the result in Singh: see below at [36].
I have concluded that the application should be granted in this case and that the proceeding should not be heard or determined pending the application for special leave to appeal, and any appeal, by the High Court in Singh.
Background
The background events below are drawn from the Court Book (“CB”). I have assumed the correctness of those matters without deciding upon any of them. They are provided as a narrative in order that the present application may be seen in some context. They are provided in the circumstances that the parties requested I determine the application in chambers and without the benefit of any oral submissions.
The applicant is a Vietnamese national aged 34 years who first travelled to Australia in July 2010. He did so on a Vietnamese passport and as the holder of a Class TU (Subclass 573) higher education visa.
Thereafter the applicant travelled to and from Vietnam and Australia in the ensuing four years. During that period a second education visa was granted to him.
In August 2014 the applicant’s second education visa expired.
On 17 November 2015 the applicant was detained and transferred to the Maribyrnong Immigration Detention Centre. Although the applicant appears to have been transferred to one or more detention centres since that date, presently he is not in detention.
On 9 December 2015 the applicant lodged an application for a Protection (Sub-class 866) visa. The application was lodged on the applicant’s behalf by a solicitor and migration agent: CB 1 - 44.
On 10 December 2015 the application was assessed as being a valid application: CB 49. I do not examine the steps which occurred in the consideration of that application.
On 28 January 2016 two delegates of the Minister variously:
a)determined that the application for a Protection visa be refused (“decision”): CB 146 - 166;
b)notified the applicant of the Decision: CB 141;
c)wrote to the Administrative Appeals Tribunal (“AAT”) giving notice pursuant to s.438(4) (“s.438 notice”) of the Migration Act 1958 (Cth) (“Migration Act”): CB 167.
By the s.438 notice, the AAT was told that s.438(1)(b) applied to certain information contained within five designated folios of a file that had been given to an officer of the Department of Immigration and Border Protection in confidence. The notice expressed the delegate’s view that such information should not be disclosed to the applicant or to the applicant's representative on the stated basis that:
“There are documents belonging to a third party (applicant’s family member) who is not included in this visa application and whom the applicant fears harm from. The disclosure of these documents may breach the privacy of the third party.”
The s.438 notice concluded with a statement that the AAT's use and disclosure of the information was subject to sub-ss.438(3) and 438(4) of the Migration Act.
In February 2016 the applicant lodged with the AAT an application for a review of the decision. The applicant was represented at the hearing before the AAT by his solicitor and migration agent.
On 4 May 2016 the AAT affirmed the delegate’s decision, notifying the applicant of that result the following day: CB 245 and 249. The AAT provided reasons for that decision: CB 289 - 306.
On 6 July 2016 the applicant lodged an application in this court seeking to quash the decision of the AAT made on 4 May 2016: CB 281. The Minister filed a response to that application: CB 308.
The stated grounds for the application were that the applicant believed the AAT “had made a mistake”, that he had applied to Victoria Legal Aid and was waiting upon a decision in relation to that application.
At a directions hearing at the Federal Circuit Court of Australia held on 5 July 2016 the matter was listed for final hearing on 1 August 2016. However, that hearing date was vacated on 11 July 2016 and the application was re-listed for final hearing on 28 April 2017: CB 310 - 312.
On 19 December 2016 judgment was delivered in Singh.
On 25 January 2017 the Minister wrote to the applicant enclosing a copy of the s.438 notice. The Minister sought the applicant's consent to the adjournment of the hearing listed for 28 April 2017. The Minister sought this consent on the basis that the result of the application for special leave to appeal (and any subsequent appeal) from Singh may affect the application in this proceeding.
On 13 February 2017 the applicant responded to the Minister’s request for an adjournment. He did not agree to the court hearing being adjourned and wanted the hearing to proceed on 28 April 2017.
Having received the applicant’s response, the Minister’s lawyers wrote to the court on 21 February 2017 requesting an adjournment of the hearing pending the outcome of the Minister's application for special leave to appeal from Singh, and any subsequent appeal. The Minister's lawyers noted that the applicant was no longer in immigration detention and cited two examples of cases in which adjournments had recently been granted in similar circumstances.
On 22 February 2017 the applicant's lawyer communicated with the court advising that the applicant opposed the request for an adjournment and explained the bases for such opposition. The applicant's lawyer contended that the request was premature. It was pointed out that orders made in the proceeding regulating the steps required for trial permitted the applicant to file any amended application and his outline of submissions by 31 March 2017. It was also said that it was entirely possible the High Court would determine the application for special leave to appeal in Singh ‘on the papers’ and refuse it. Further submissions then followed.
Consideration
As noted above the parties consented to this application being determined in Chambers: see ss.3(2)(a), 13(2) and 13(3)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCC Act”).
The court may vacate a trial date and adjourn or stay a proceeding: s.15(a), FCC Act. However, in my opinion, authorities concerning applications for the stay of an order pending appeal entail principles which are quite distinct from the present situation: cfJennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 (Brennan J); Reinhart v Welker [2012] NSWCA 1, [41] (Bathurst CJ, Beazley and McColl JJA). Here, no judgment has been secured. There has neither been a determination of the parties’ rights, nor of any entitlement to relief. In short, the issues in this proceeding remain for determination.
The conferral of powers to make interlocutory orders is an incident of the court’s general power to control its own proceedings: compare Groves v Commissioner of Taxation [2011] FCA 222, [22] (Logan J). Whether or not the court should exercise that power requires the making of a discretionary value judgment: Groves, supra. The judicial discretion conferred by s.15(a) of the FCC Act is expressed in terms which include a power to make interlocutory orders of such kind as the court thinks appropriate. Not infrequently, the legislature confers a discretion without defining the grounds on which it falls to be exercised. In cases of that kind, as here, consideration is required of the scope and purpose of the provision: Klein v Domus Pty Ltd (1963) 109 CLR 458, 473 (Dixon CJ, McTiernan and Windeyer, JJ agreeing).
In proceedings before it the court must endeavour to ensure that the proceedings are not unduly protracted: ss.14 and 42 of the FCC Act. Equally, another express object of the FCC Act is that the court should be enabled to use streamlined procedures: s.3(2)(b) of the FCC Act. It must also be acknowledged that generally a party ought to be entitled to proceed to a final hearing on the basis of the law as settled at that time and without regard to the possibility that the law may be changed by subsequent authority. A general rule of that kind is not absolute.
Despite the somewhat polarised positions that have been adopted by the parties as to the effect which a successful appeal in Singh may have for the determination of this proceeding, it should, however, be recognised that the issues which may define any outcome in Singh are somewhat beyond their control. Singh is a pending proceeding that involves other matters in controversy involving a party other than BJN16: cfHo v Grigor (2006) 151 FCR 236, [60] (French, Stone, Besanko JJ). In my view, it is unnecessary to embark upon the consideration of the prospects of a grant of special leave to appeal (or indeed any appeal) in Singh by the High Court. Of greater assistance is to gain some understanding of what Singh decided.
In Singh, the Full Court dismissed an appeal by the Minister from a decision of the Federal Circuit Court. The learned primary judge had allowed the application for review of a decision by a Migration Review Tribunal affirming a decision by a delegate of the Minister to refuse the applicant a Skilled (Provision) (Class VC) visa, quashed the Tribunal decision and remitted the matter for reconsideration: Singh v Minister for Immigration & Anor [2016] FCCA 2464 (23 September 2016) (Jarrett, J). The substantive basis for the holding was that his Honour discerned a want of procedural fairness grounded upon the Tribunal’s failure to disclose to the applicant the existence of a certificate issued pursuant to s.375A of the Migration Act.
In reaching that conclusion, Judge Jarrett applied, by analogy, the reasoning in MZAFZ v Minister for Immigration & Anor (2016) FCR 1 (7 September 2016) (Beach, J) (“MZAFZ”). MZAFZ did not concern a certificate issued pursuant to s.375A of the Migration Act. Rather, MZAFZ concerned a certificate issued pursuant to s.438 of the Migration Act. Relevantly, Beach J considered a scenario in which a valid s.438 certificate had been issued, and said, obiter, that principles of procedural fairness obliged the Tribunal, amongst other things, to disclose the existence of the s.438 certificate (and thereby give content to the opportunity to the applicant to make submissions to the Tribunal on matter which it might take into account): (2016) FCR 1, [50], [65].
In Singh the Minister’s main ground of appeal was that the primary judge had erred in holding that there had been a denial of procedural fairness in the failure to disclose the s.375A certificate: [2016] FCAFC 183, [19]. Without examining the whole of the reasoning in Singh, I consider that it is sufficient for present purposes to observe the Full Court held that general law notions of procedural fairness might, and in the subject appeal did, require disclosure of the existence of the s.375A certificate to the applicant: [2016] FCAFC 183, [40], [52].
I also note that in deciding that appeal it was necessary to address what were described by the Full Court as the ‘conflicting’ views in earlier authorities about how an apparent tension in the operation of ss.359A and 375A of the Migration Act might be resolved: [2016] FCAFC 183, [12]-[13], [55]-[59]. In those circumstances, the filing of an application for special leave to appeal in Singh is perhaps unsurprising.
It is apparent that in both this proceeding and in MZAFZ the certificate in question was one issued pursuant to s.438 – not s.375A – of the Migration Act. By contrast, in Singh the certificate in question was one issued pursuant to s.375A of the Migration Act. As was observed in Singh (both by the learned primary judge and the Full Court), ss.375A and 438 of the Migration Act are analogous, but not identical, provisions and there are significant textual differences between the two: see [2016] FCAFC 183, [22]-[24]. Section 375A lies within Division 8, Part 5 of the Migration Act – Review of Part 5 - reviewable decisions. Section 438 lies within Division 7, Part 7 of the Migration Act – Review of Part 7 - reviewable decisions.
It is submitted there has been no appeal from the decision in MZAFZ (and, by extension, no application for special leave to appeal to the High Court). So much may be accepted. However it should be recognised that in MFAFZ, the statements by Beach J concerning the obligation of procedural fairness in relation to a valid s.438 certificate were clearly expressed as obiter dicta: (2016) FCR 1, [45]. In those circumstances, the absence of an appeal is readily understandable. Apart from Singh, it does not appear that MZAFZ has been considered by the Full Court of the Federal Court. Of perhaps greater significance is that such consideration as was given to MZAFZ by the Full Court in Singh, indicates that Beach J’s obiter dicta has been endorsed: see [2016] FCAFC 183 at [39], [40]. That Singh is the subject of an application for special leave to appeal may well afford the opportunity for the consideration by the High Court of the analyses in each of those decisions.
I agree that it is entirely possible the High Court may determine the application for special leave to appeal in Singh ‘on the papers’. I cannot usefully speculate whether the Court will refuse leave.
While both MZAFZ and Singh have been relied upon in a series of decisions in this court, this has rarely (if at all, in the case of MZAFZ) been for the purpose of supporting an application that a trial date be vacated by reason of a pending application for special leave to appeal. I have had regard to the cases cited by the parties and relied upon them as being supportive of their submissions. In my opinion, it is not particularly useful to analyse each of those decisions in the evaluation of whether or not the present application to vacate the trial should be granted. In reaching that conclusion I do not ignore the applicant’s submission that on at least one occasion this court has refused an application for an adjournment pending the determination of the application for special leave to appeal from the decision in Singh.
In my opinion, a material consideration is whether a more efficient use of the judicial and administrative resources available to the court would result from an order vacating the trial date or from requiring that the parties adhere to the date that has been set: compare BLD15 v Minister for Immigration and Border Protection [2017] FCA 72, [17] (Katzman J). In that appeal her Honour was also persuaded that clarification of the law may be achieved through the determination of the application for special leave in Singh and that the overarching purpose of civil proceedings would best be promoted by vacating the trial in circumstances where, it was submitted, there were hundreds of cases pending in the Federal Circuit Court which may be affected by the outcome in Singh: [2017] FCA 72, [22].
Allied to this, one might consider the ramifications for the parties if the proceeding was heard on 28 April 2017 but not determined until after the result of Singh became known. Assume that special leave was granted and that an appeal in Singh was allowed. The reasoning of the High Court in relation to s.357A and possibly s.438 would require attention. In my opinion, the prospect of fragmentation in the conduct and determination of this proceeding is likely. Each of the parties would be expected to seek leave to file further submissions and quite possibly to amend the application and response. The court would then be required to revisit the matter anew. The benefit that would attach to the hearing on 28 April 2017 would be eroded. The same may well hold true for other litigation involving ss.375A or 438 certificates. Litigants who had exercised rights of appeal would likely file supplementary grounds of appeal and/or notices of contention so as to address the consequences for their proceeding of the holding in Singh. Submissions would be amended. Courts would be left to re-sort and re-assess the position being taken in each such proceeding. Those consequences may be avoided by allowing some time to await the result in Singh. By contrast, if Singh is left to run its course and special leave be refused or the appeal is dismissed, cases in this court may proceed in the knowledge that the position as decided by MZAFZ and Singh would to obtain: see [38] and [41] below.
A further related consideration which should not be ignored is that the Minister may suffer some prejudice if the trial date is not vacated. Without expressing a concluded view, applied here MZAFZ and Singh would appear to support submissions that the applicant may be entitled to procedural fairness at general law in respect of the s.438 notice and that remittal of the matter was required. The prospect that that position may change remains alive if special leave to appeal Singh be granted and an appeal allowed. The possibility of such prejudice as a relevant consideration was recently given due weight in SZUOL v Minister for Immigration and Border Protection [2017] FCA 179, [17] (White J). On that occasion the application for special leave was made against the Minister. The possibility of prejudice to the applicant was allowed. Consistency of approach may allow also for recognition of the risk of prejudice flowing in cases where the Minister was applicant for special leave in cases where the importance of the issue was such that the exercise of discretion otherwise favoured the vacation of a trial date.
Countervailing considerations also include that the applicant is no longer in detention, does not face any apparent threat of return to detention and there is no suggestion that he will be forced to leave the country pending the hearing and determination of Singh or indeed, his own application to this court.
The absence of any precedential weight in an order refusing special leave to appeal should be accepted. Nonetheless, at a practical level, the refusal of special leave in Singh may fortify the Minister in the consideration whether there was utility in a final hearing or whether the circumstances instead warranted the remittal of the matter. The court’s resources would then be freed up for other proceedings.
In all the circumstances I conclude that an order vacating the hearing date in this matter on 28 April 2107 is appropriate. This is not to say that the matter should remain dormant. Orders allowing amendment and providing for the filing of submissions remain on foot. I do not discount the applicant’s submission that an amended application and submissions will be filed. It is said that those documents may persuade the Minister to reconsider his position without the need for this proceeding to go to a hearing. Should those submissions persuade the Minister of jurisdictional error, they will have served their purpose and fulfilled the object of streamlining proceedings in the court.
It is axiomatic that, being an interlocutory decision on a matter of practice and procedure, either of the parties may consider that developments in the progress of Singh before the High Court may warrant the conclusion that there has been a change in circumstances sufficient to warrant that the listing of this matter be revisited.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 22 March 2017
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