Byu20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1302

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1302

File number:

SYG 3001 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

10 June 2021

Catchwords:

MIGRATION – Application for review of a decision not to refer request for Ministerial intervention – where Court has no jurisdiction – application dismissed for want of jurisdiction.    

Legislation:

Migration Act 1958 (Cth) ss 417

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

10

Date of hearing:

10 June 2021

Place:

Sydney

Counsel for the Applicants:

Mr A Munro

Solicitor for the Applicants:

Turner Coulson Immigration Lawyers

Counsel for the Respondent:

Ms K Hooper

Solicitor for the Respondent:

Mills Oakley

ORDERS

SYG 3001 of 2019

BETWEEN:

BYU20

First Applicant

BZR20

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	10 JUNE 2021

THE COURT ORDERS THAT:

1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) for want of jurisdiction.

2.The applicants pay the respondent’s costs fixed in the amount of $6,200.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. These proceedings were commenced on 18 November 2019 in circumstances where there is a purported certification of a reasonably arguable case, concerning the non-referral of a request for Ministerial intervention pursuant to s 417 of the Migration Act 1958 (Cth) (“the Act”). 

2. The existing law, as Mr Munro, counsel on behalf of the applicant, properly concedes, is that this Court has no jurisdiction in respect of the refusal to refer the request for ministerial intervention. It does not meet the requirements of having the characteristic of an administrative decision of the kind that would engage the Court’s jurisdiction and nor is it something that can properly be described as preparatory to such an administrative decision. There is binding authority on this Court, as well as this Court’s own decision that there is no such jurisdiction. 

3. There is an important obligation under Part 8B of the Act, which is that legal practitioners must not bring proceedings before the Court that have no reasonable prospect of success. On the face of the material before this Court, this proceeding had no reasonable prospect of success as at 18 November 2019, or as at today.

4. Mr Munro has filed an application seeking leave to amend, as well as seeking an adjournment because of proceedings in the Federal Court seeking to agitate the question of whether this Court has jurisdiction in respect of a refusal to refer the request for ministerial intervention.  Mr Munro has contended that there would be a denial of procedural fairness if the matter were not adjourned. There is no substance of Mr Munro’s submission at all. The concession, however, was properly made, and Mr Munro did not contend to the contrary, that there was no jurisdiction.

5. That was a proper stance for Mr Munro to take, and has not, in those circumstances, engaged this Court in having to further consider the powers that it has under Part 8D of the Act. Proceedings of this kind should not have been brought, they had no reasonable prospect of success, and the ordinary consequence of these type of proceedings would be that the Court would consider exercising its powers under Part 8B of the Act. The fact that there are proceedings on foot seeking to re-agitate the existing law in the Federal Court is not, of itself, a proper basis to adjourn proceedings that have been on foot since 18 November 2019.

6. In the ordinary course, these proceedings, in respect of a want of jurisdiction, should have been determined within six to 12 months. It is a great shame that they were not the subject of an application for expedition, or for summary dismissal, at an earlier point in time.  Proceedings that have no reasonable prospect of success should, ordinarily, be the subject of such application so that they do not languish in the Court list.  Mr Munro’s contention that the outcome in the Federal Court is a matter by reason of which this matter should be adjourned is not an adequate basis to justify an adjournment of proceedings that had been fixed for hearing by this Court for today and in respect of proceedings in which it is patent there is no jurisdiction under the law as it currently exists. Had the matter been the subject of some positive determination in the intermediate appellate Court or that was then pending review in the High Court of Australia a different position would arise, but that is not this case. No proper basis for an adjournment has been identified.  The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.

7. The applicant has had more than a reasonable opportunity to identify whether there was jurisdiction. There patently is none. For the reasons the Court has already identified, these proceedings would otherwise have engaged the Court considering the obligations under Part 8B of the Act.  These type of proceedings are not ones that should be brought on the basis of the existing law in this Court. It would be appropriate for any proceedings of this kind to be the subject of applications for summary dismissal immediately after the commencement of the same.

8. As the Court has no jurisdiction, the application to amend is futile, of no utility and leave to amend is refused. 

9. As there is no jurisdiction, the proceedings must be dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

10. The Court is satisfied that this is an appropriate matter, given the history, in which to make a costs order above the scale amount for an interlocutory application. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 June 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       2 August 2021