BYN18 v Minister for Home Affairs
[2018] FCCA 3838
•20 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYN18 v MINISTER FOR HOME AFFAIRS | [2018] FCCA 3838 |
| Catchwords: MIGRATION – Application to extend time under s 477 of the Migration Act 1958 (Cth) – application filed out of time – whether the notification is a decision enlivening the Court’s jurisdiction – no satisfactory explanation for the delay – no sufficiently arguable case of jurisdictional error made out by the proposed ground in the application – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 477, 497, 501, 501CA |
| Cases cited: Aciek v Minister for Immigration [2017] FCCA 3237 |
| Applicant: | BYN18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 1087 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 20 December 2018 |
| Date of Last Submission: | 20 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Berg |
| Solicitors for the Applicant: | Harper James Law |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.
DATE OF ORDER: 20 December 2018
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1087 of 2018
| BYN18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
These are proceedings purportedly commenced within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) subject to an extension of time under s 477 of the Act in respect of an alleged migration decision made on 4 April 2017, being a notification sent to the applicant under s 501CA(3) of the Act, in respect of the notice of visa cancellation under s 501(3A) of the Act. It is the notification itself that is the subject of the alleged migration decision said to enliven this Court’s jurisdiction.
These proceedings were commenced on 17 April 2018, 333 days outside the time permitted under s 477 of the Act. The application identifies a request for an extension of time and articulates a proposed ground in compliance with the requirements of s 477(2) of the Act.
The principles to be applied in determining whether to extend time involve consideration of whether there is a satisfactory explanation for the delay, any particular prejudice to the respondent and none is suggested in the present case, and the merits of the application. In this regard, the Court is engaged in a preliminary assessment at an impressionistic level in respect to the merits. The Court also takes into account that there is no right of appeal under s 477 of the Act to the Federal Court of Australia.
Question of Jurisdiction
The first issue that the Court must address is that of jurisdiction. Where a jurisdictional issue is raised it is the obligation of the Court to first determine that question. Mr Berg of counsel, on behalf of the applicant, submitted that the notification, as a matter of characterisation, is a migration decision within this Court’s jurisdiction. Mr Berg relies upon the reasoning of Judge Manousaridis in Aciek v Minister for Immigration [2017] FCCA 3237 (“Aciek”) in that regard, and also the approach that was adopted by Judge Egan in EFX17 v Minister for Immigration [2018] FCCA 2957 (“EFX17”). Mr Berg also sought to submit that the notification is one, in terms of its characterisation that had an element of finality, was a substantive determination and, in essence, identified the evidence upon which the Minister relied.
The proceedings before the Court are not ones in respect of which it is the decision of the delegate the subject of the notification that is sought to be challenged. Rather, it is the notification under s 501CA(3) of the Act that is sought to be challenged. That notification does not reflect finality or a substantive determination, nor does that notification of itself identify deliberative evidence in respect of the notification. The notification is a procedural step taken pursuant to s 501CA(3) of the Act. It is not of itself a decision of an administrative character. Rather, it is a procedural step required under the legislation following a decision under s 501(3A) of the Act.
The contention advanced is that the notification under s 501CA(3) of the Act was a step that required an express delegation of authority to engage in that step and that for want of that authority, there has been no notification under s 501CA(3) of the Act and accordingly, time has not expired in respect of the applicant’s rights under that provision.
I accept the submissions of the respondent that that this Court has no jurisdiction as the notification is not a migration decision within this Court’s jurisdiction. The notification is a procedural step and is not of an administrative nature so as to give rise to a migration decision enlivening this Court’s jurisdiction.
In that regard, the Court follows what was said in Megase v Minister for Immigration [2018] FCCA 3682 (“Megase”) in respect of jurisdiction. The Court is not persuaded by Mr Berg that Megase is wrong. Further, the Court is not persuaded that it has jurisdiction as contended on the grounds identified in Aciek and EFX17. The Court, for the reasons identified in Megase and for the reasons given above, is satisfied that both those decisions are plainly wrong. Accordingly, this Court has no jurisdiction.
Section 477 of the Act
The Court has however, heard argument under s 477 of the Act and it is convenient, insofar as another Court might otherwise hold in respect of jurisdiction, to address the issues under s 477 of the Act. In that regard, Mr Berg refers to the absence of binding Federal Court of Australia authority in respect of the issue concerning the delegation. Mr Berg points to the decision of Judge Manousaridis in EFX17 on a delegation issue in his favour, albeit Judge Egan, like this Court, found that there was no substance in the contention that there was an invalid notification and rejected the contention that the notification was made without authority.
Mr Berg referred to the issue as to there being no right of appeal under s 477 of the Act and suggested that it would be necessary to seek special leave. That proposition is not correct. It is apparent that there is still jurisdiction in the Federal Court of Australia to correct an excess of jurisdiction by this Court. Further, the issue that has there already been determined in respect of jurisdiction is an issue falling within the Federal Court’s jurisdiction so far as the applicant seeks to persuade another Court that this Court has erred in its determination as to the absence of jurisdiction.
The Court has taken into account, in relation to the s 477 argument, the absence of any prejudice asserted to the respondent. Whilst there is an explanation advanced beyond that referred to in the application, which that the applicant was never properly served with a notice. That of itself simply engages with the issue and does not provide an adequate explanation for the delay. There is in the Court book a statement by the applicant that was relied upon by Mr Berg in satisfaction for the explanation for the delay. That statement referred to the applicant’s detention history and engagement with various lawyers. That statement does not however provide a satisfactory explanation according to the layout of circumstances of the present case which is substantial.
The Court also must take into account the merits in determining whether or not it is necessary in the interests of the administration of justice to extend time under s 477 of the Act. Mr Berg submitted that there needed to be evidence to support the assertion of implied power. That proposition is misconceived. The basis for this Court’s finding that there was implied authority to notify the applicant under s 501CA of the Act flows from the delegation held by the decision-maker under s 501 of the Act. There is no dispute that there was a delegation held by the decision-maker under s 501(3A) of the Act. The argument advanced is that there needed to be an express delegation in respect of s 501CA(3) of the Act.
Given the statutory provisions and the context of s 501 and s 501CA of the Act, as a matter of implication, there is implied authority for the decision-maker under s 501 of the Act, who holds a valid declaration to notify under s 501CA(3) of the Act. There is no substance in Mr Berg’s contention that there needed to be evidence in respect of that implied power. The implied authority rose as a matter of a statutory construction and the holding of the office under s 501(3A) of the Act.
Mr Berg also submitted that the decision of Judge Manousaridis in Aciek to the effect that there was not implied power was such that there must be a sufficiently arguable case on the merits to warrant an extension of time. This Court has already held that that decision is plainly wrong for the reasons identified in Megase. Whilst there is a difference between the determination of a legal proposition and the preliminary assessment in respect of the merits required under s 477 of the Act, this Court has found, as a matter of law, that the contention that there was no implied authority is plainly wrong. At an impressionistic level, there is no sufficiently arguable case on the merits that there is no implied authority to make necessary an extension of time under s 477 of the Act in the circumstance of the present case.
Mr Berg has also submitted that s 497 of the Act provides no express authority. Mr Berg, in that regard, again relies on Aciek and contends that Aciek throws up a reasonably arguable construction of s 497 of the Act. For the reasons this Court gave in Megase, the Court is satisfied that the decision in Aciek is plainly wrong. The Court does not regard the contention that there is no express authority under s 497 of the Act as having sufficient merit at an impressionistic level to make necessary an extension of time in the interests of administration of justice in the circumstances of this case.
The proposed ground
The proposed ground in the application is as follows:
1. The Respondent failed to carry his statutory duty.
PARTICULARS
a. The Migration Act 1958 s. 501CA(3) provides: "As soon as practicable after making the original decision, the Minister must:
(a) Give the person, in the may that the Minister considered appropriate in the circumstances:
i. A written notice that sets out the original decision; and
ii. Particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about the revocation of the original decision "
b. The Respondent did not give the Notice to the Applicant.
c. The person who purported to give the Notice to the Applicant, Position Number 60045441, did not hold a delegation from the Respondent to carry out his duty under the Migration Act 1958 s 501CA(3).
Proposed ground 1
In the circumstances, proposed ground 1 lacks sufficient merit to warrant an extension of time under s 477 of the Act as being necessary in the interests of the administration of justice.
When the unsatisfactory explanation for the delay, which was substantial, is taken together with the insufficient merit, the Court is not satisfied that there is a sufficiently arguable case to warrant an extension of time under s 477 of the Act. But for the finding of there being no jurisdiction, the Court would otherwise have dismissed the application under s 477 of the Act.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 18 February 2019
3
3
2