FEDERAL COURT OF AUSTRALIA
BYN18 v Minister for Home Affairs [2020] FCAFC 80
Appeal from: BYN18 v Minister for Home Affairs [2019] FCA 1033 File number: NSD 1161 of 2019 Judges: NICHOLAS, MARKOVIC AND LEE JJ Date of judgment: 14 May 2020 Catchwords: MIGRATION – appeal against primary Judge’s judgment refusing relief under s 39B of the Judiciary Act 1903 (Cth) with respect to Federal Circuit Court of Australia (“FCC”) finding that it lacked jurisdiction to review validity of notice issued under s 501CA(3) of the Migration Act 1958 (Cth) (“the Act”) – whether primary Judge erred in refusing relief – whether the FCC has jurisdiction under s 476 of the Act – whether determination under s 501CA(3) constituted a “migration decision” – consideration of other matters relied upon by the FCC when holding that the appellant’s application for an extension of time should be rejected – whether consideration of those matters was a proper exercise of the FCC’s jurisdiction Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act1958 (Cth) s 5, 474, 476, 477, 501(6)(a), 501(3A), 501CA(3)
Cases cited: Aciek v Minister for Immigration [2017] FCCA 3237
BYN18 v Minister for Home Affairs [2018] FCCA 3838
Canham v Australian Guarantee Corporation Ltd (1993) 31 NSWLR 246
Chung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 442
EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230
Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 72 FCR 125
Kumar v Minister for Immigration and Citizenship (2009) 176 FCR 401
Megase v Minister for Immigration [2018] FCCA 3682
McCulloch v Minister for Home Affairs [2019] FCA 54
MZXMI v Minister for Immigration and Citizenship [2007] FCA 1162
Date of hearing: 25 November 2019 Date of last submissions: 23 January 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 29 Counsel for the Appellant: Mr A Sullivan QC with Ms T Baw Solicitor for the Appellant: Turner Coulson Immigration Lawyers Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 1161 of 2019 BETWEEN: BYN18
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
FEDERAL CIRCUIT COURT OF AUSTRALIA
Second Respondent
JUDGES:
NICHOLAS, MARKOVIC AND LEE JJ
DATE OF ORDER:
14 MAY 2020
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made by the primary Judge on 4 July 2019 be set aside and in lieu thereof, it be ordered that:
(a)a writ of certiorari issue to quash the orders of the Federal Circuit Court of Australia made on 20 December 2018;
(b)a writ of mandamus issue requiring the Federal Circuit Court of Australia (differently constituted) to consider according to law the appellant’s application for an extension of time filed on 17 April 2018.
3.The first respondent pay the appellant’s costs of the…
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- Case
- [2020] FCAFC 80
- Decision Date
CaseChat Overview and Summary
The court found that the primary Judge had indeed erred in his decision. The court referred to the definition of a "privative clause decision" under section 474, which stipulates that such decisions are final and not subject to judicial review. The court noted that sections 476 and 477 both refer to a "migration decision," which includes a privative clause decision. In light of the Full Court's decision in EFX17 v Minister for Immigration and Border Protection, the court determined that the FCC did have jurisdiction to review for jurisdictional error a decision to give a notice under section 501CA(3) of the Act. The court also found that the FCC's consideration of other matters when deciding on the extension of time was a proper exercise of its jurisdiction.
The appeal was allowed, and the orders made by the primary Judge were set aside. In their place, the court ordered that a writ of certiorari be issued to quash the FCC's orders made on 20 December 2018 and that a writ of mandamus be issued requiring the FCC, differently constituted, to consider the appellant's application for an extension of time filed on 17 April 2018 according to law. The Minister was ordered to pay the appellant's costs of the proceeding before the primary Judge and the appeal.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders made by the primary Judge on 4 July 2019 be set aside and in lieu thereof, it be ordered that:
(a) a writ of certiorari issue to quash the orders of the Federal Circuit Court of Australia made on 20 December 2018;
(b) a writ of mandamus issue requiring the Federal Circuit Court of Australia (differently constituted) to consider according to law the appellant’s application for an extension of time filed on 17 April 2018.
3. The first respondent pay the appellant’s costs of the proceeding before the primary Judge and the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Sections 476 and 477 both refer to a “migration decision” which is relevantly defined in s 5 to mean: migration decision means:(a) a privative clause decision; or(b) a purported privative clause decision; or… The phrase “privative clause decision” is defined in s 474 which relevantly provides: Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: privative clause decision means 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), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination; (b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; (d) imposing, or refusing to remove, a condition or restriction; (e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing; (h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation; (i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision. (4)For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision: …THE APPEAL At the hearing of the appeal the Minister submitted that the primary Judge was correct in holding that the FCC lacked jurisdiction because the decision in relation to which the appellant sought an extension of time was not a privative clause decision. After the conclusion of the hearing of the appeal, the appellant drew our attention to the decision of the Full Court in EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230 (“EFX17”) (Greenwood, Rares and Logan JJ) given on 16 December 2019. The Minister then sought leave to file a written submission in relation to that decision. In that written submission counsel stated that the Minister had sought special leave to appeal to the High Court of Australia against the decision in EFX17, but that the Minister’s proposed appeal would not raise any challenge to the correctness of the Full Court’s conclusion that the FCC had jurisdiction to review for jurisdictional error a decision to give a notice under s 501CA(3) of the Act.