FEDERAL CIRCUIT COURT OF AUSTRALIA
| C7A/2017 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 458 |
| Catchwords: PRACTICE AND PROCEDURE – Transfer application after remittal from High Court – principles considered and application refused – “show cause” application in relation to the conduct of the solicitor acting for the Applicant and possible referral to ACT Bar Association and Law Society in relation to repeated submissions, rejected by the High Court in three separate recent decisions, in using only a dissenting judgment of Kirby J in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12. |
| Legislation: Federal Court of Australia Act1976 (Cth), s.48(2) Federal Circuit Court of Australia Act 1999 Judiciary Act 1903 (Cth), s.44 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 77 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | Dealt with by way of written submissions |
| Date of Last Submission: | 24 October 2017 |
| Delivered at: | Canberra |
| Delivered on: | 2 March 2018 |
REPRESENTATION
| Solicitors for the Applicants: | Hugh Ford & Associates |
| Solicitors for the First Respondent: | Clayton Utz (Canberra) |
ORDERS
The oral Transfer Application made by the solicitor for the Applicants on 26 September 2018 be dismissed.
The Parties are to file and serve Written Submissions, of no more than 1 page in length within 7 days from the date of these Orders, that is by close of business on 9 March 2018, as to whether the Applicants, or someone on their behalf, should pay the First Respondent’s costs associated with the Transfer Application.
The Applicants’ solicitor is to file and serve Written Submissions, of no more than 1 page in length within 7 days from the date of these Orders, that is by close of business on 9 March 2018, to show cause (a) why a copy…
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- Case
- [2018] FCCA 458
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the plaintiffs had a constitutional right to seek review in the High Court, precluding remittal to the Federal Circuit Court. Furthermore, the court was required to consider the plaintiffs' allegations of bias within the Federal Circuit Court, and whether the interpretation of the High Court's decision in *Minister for Immigration and Multicultural and Indigenous Affairs v SGLB* regarding credibility assessments was being consistently misapplied by the Tribunal and the Federal Circuit Court.
Neville J noted that the solicitor for the plaintiffs had advanced arguments concerning the interpretation of *SGLB* and the jurisdiction for remittal on multiple occasions, including before Bell J in the present proceedings and previously before other judges, without success. The court observed that the solicitor's submission that the plaintiffs had a constitutional right to seek review in the High Court, irrespective of the issues raised, was a novel characterisation. The judge also cautioned the solicitor regarding the gravity of making unparticularised allegations of bias against members of the Federal Circuit Court. The court acknowledged the plaintiffs' stated concerns about a high dismissal rate in the Federal Circuit Court and their disagreement with a Full Federal Court decision concerning judicial bias, which formed the basis of their apprehension of bias claim. The judge also noted the solicitor's reliance on Justice Kirby's comments in *SGLB* regarding credibility assessments, which the solicitor argued were being ignored by the Tribunal and the Federal Circuit Court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Despite these clear statements regarding the solicitor/advocate’s mis-interpretation of SGLB, it was advanced again by the same person in the same Court not one month later, again before Bell J in the present matter of Plaintiff C7A v Minister for Immigration & Border Protection.[8] In those proceedings, it is as well to set out in full certain parts of the exchange and submissions made by the solicitor with her Honour, thus (emphasis added):[9][8] Plaintiff C7A & Ors v Minister for Immigration and Border Protection & Ors [2017] HCATrans 169 (24 August 2017).[9] Plaintiff C7A & Ors v Minister for Immigration and Border Protection & Ors [2017] HCATrans 169 (24 August 2017) pp.2 – 5. For ease of reference a copy of the full transcript of the proceeding before Bell J is attached to these reasons.MR FORD: Your Honour, the plaintiffs have commenced proceedings pursuant to section 75(v) of the Constitution. I should point out this is a constitutional right to seek review. While there may be a discretion as to the remedies which the Court may grant, there is a right to seek review and that right is a right to seek review by the High Court, not by the Federal Circuit Court. Now, while there may be - - -HER HONOUR: There is, in some respects, a novel aspect to that submission, Mr Ford. The fact that proceedings are commenced in this Court to obtain the discretionary remedies that are claimed in your application to show cause may be thought to be putting it high to characterise as a right the issues in the submissions made on behalf of the first defendant are suggested not to be of the nature to engage the jurisdiction of the Court. Now, if there is something that you want to put to me in that respect that would be helpful, but I am not sure that I am greatly assisted by being told that you have a right to proceed in this Court regardless of the issues that the matter raises.MR FORD: I accept that, your Honour, but that is the plaintiffs’ contention, that it is at that higher stage of being a right to seek review. While there may be a rule or a statute which authorises the remittal of the matter to the Federal Circuit Court, the Constitution does not contain authority or a power to remit. The power to remit comes from a statute or from the High Court Rules and if the High Court Rules were to be invoked to remit the matter then the Court would be acting beyond power because the Constitution does not contain a power to remit and here we are – the Rules are giving the Court the power to remit when that is not in the Constitution.So if there were to be a remittal, it is the plaintiffs’ contention that that would be – the Court would be acting - in simple ultra vires it would be beyond power to do that. Your Honour, I do not propose to elaborate on those things. This is simply a directions hearing and I am conscious of the fact that we have other matters which are before the Court.HER HONOUR: Mr Ford, I have before me this morning submissions by the first defendant that the appropriate course is that I remit this matter to the Federal Circuit Court for the reasons identified in Ms Wong’s written submissions. I propose to deal with that application. I just wish that to be clear to you.MR FORD: Yes, your Honour. The plaintiffs contend, as was indicated, that there is no authority to remit. If the Court chooses to rely on a rule or a statute to authorise that remittal then the Court – the High Court would be acting beyond power. Now, another reason why the plaintiffs do not want this matter to be remitted is because the plaintiffs have real concerns about the bias of the Federal Circuit Court. The first issue about the bias of the Federal Circuit Court - - -HER HONOUR: Mr Ford, that is a grave allegation to make - an unparticularised assertion that the members of the Federal Circuit Court are biased.MR FORD: Well, your Honour - - -HER HONOUR: Mr Ford, members of the profession enjoy a privilege in appearing before this Court and other courts and I just draw to your attention the need to be careful in the exercise of it.MR FORD: Yes, your Honour.HER HONOUR: I do not think I need elaborate on that, Mr Ford, but - - -MR FORD: I suppose at the heart of this issue, your Honour – you are obviously aware that the Full Court of the Federal Court had reason to make – hand down its decision concerning the issue of the bias of one particular judge and the plaintiffs have disagreed with that Full Court Federal Court ruling and that is one of the issues which the plaintiffs seek to ventilate in this matter. The concern is that if this matter is remitted back to the Federal Circuit Court, there are some judges who have a very high dismissal rate. This is the basis for the reasonable apprehension of bias claim.Now, the other reason why this matter should not be remitted is because this case and many thousands of other cases turned on the issue of credibility. In my submissions, your Honour, I pointed to the comments of his Honour Justice Kirby - in the SGLB Case - who made very strident and definite directions to the Court as to how they are supposed to deal with the issue of credibility.HER HONOUR: Mr Ford, I think this submission is directed to a submission that you have previously put – I note on occasions amongst others in an application dealt with by his Honour Justice Nettle – just bear with me one moment.MS WONG: SZUSH, your Honour.HER HONOUR: Yes, that is the matter - in May of last year.MR FORD: That is right, your Honour.HER HONOUR: When his Honour dealt with what I was subsequently to observe appeared to be a misconception in the argument that you developed in SZUSH and later before me in MZAHH respecting the analysis in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB - the same argument that has been rejected by Justice Nettle and by myself on earlier occasions is the matter central to an aspect of the relief that you claim on this occasion. Is that so?MR FORD: That is right, your Honour. I suppose in response to that I would say that I do not accept that my views on the matter are misguided. I do not accept that these are matters – the issues which are raised by his Honour Justice Kirby are just as pertinent today as they were when you dealt with this matter; in fact, they are even more problematic.Unfortunately, the Tribunal and the Minister have continually ignored the protestations of Justice Kirby in this regard. While I accept that the predominant legal view is that the comments of Justice Kirby are in a minority, as I have indicated in my submissions, the majority of the Court in the SGLB Case did not derogate from or did not disagree with, and in a number of other cases that have subsequently dealt with his Honour’s comments in SGLB they have not disagreed with the principles as enunciated by his Honour but they have disagreed on the facts of the particular matter.So, the issue of credibility is an enormous issue, your Honour, and unfortunately the Tribunal and in particular the Federal Circuit Court seem to be condoning this approach that an inconsistency in the argument bases a finding that the applicant’s claims are to be rejected. As his Honour Justice Kirby has indicated, the fact that there is an inconsistency does not form a basis for the rejection of the rejection of the claims.