CFM17 v Minister for Immigration
[2018] FCCA 649
•19 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFM17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 649 |
| Catchwords: PRACTICE AND PROCEDURE – Application to transfer an application for judicial review of a migration proceeding. MIGRATION – Part 7AA of the Migration Act 1958 – cases at intermediate appellate level that have considered that part since Part 7AA was introduced in March 2018. VENUE TRANSFER – Application refused. |
| Legislation: Federal Circuit Court of Australia Act 1999, sub-ss.39(1), (3) Migration Act 1958, ss.5H(1), 36(2)(a), 36(2)(aa), 473DC(1)(a), 473DD, 476, 476A, 484 Federal Circuit Court of Australia Rules 2001, r.8.02(4) |
| Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 AZR16 v Minister for Immigration and Border Protection [2017] FCA 1453 BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 Commissioner of State Revenue v Kimiora (2016) 309 FLR 277 CSJ17 v Minister for Immigration and Border Protection [2018] FCCA 269 CSR16 v Minister for Immigration and Border Protection (2017) 324 FLR 364 CWP16 v Minister for Immigration and Border Protection [2018] FCAFC 28 DFZ16 v Minister for Immigration and Border Protection [2017] FCCA 2427 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 DRG17 v Minister for Immigration and Border Protection [2018] FCCA 221 DVI17 v Minister for Immigration and Border Protection [2018] FCCA 241 EEM17 v Minister for Immigration and Border Protection [2018] FCCA 337 Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration and Border Protection v DZU16 [2018 FCAFC 32 |
| Other Materials: Commonwealth, Parliamentary Debates, House of Representatives, 10 March 2005, 3 (the Honourable Phillip Ruddock MP) |
| Applicant: | CFM17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1085 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 19 January 2018 |
| Date of Last Submission: | 19 January 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr E M Nekvapil |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr C Tran |
| Solicitors for the First Respondent: | Spark Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Spark Helmore |
ORDERS
The applicant’s application to transfer this proceeding from the Federal Circuit Court of Australia to the Federal Court of Australia pursuant to s.39(1) of the Federal Circuit Court of Australia Act 1999 is refused.
The applicant has leave to file and serve within 30 days the amended application in the form of annexure CC-2 to the affidavit of Chelsea Clark affirmed 8 January 2018 and filed 12 January 2018.
The respondents have leave to file and serve any response within 30 days of the date on which the amended application is filed and served.
The parties’ costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1085 of 2017
| CFM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application in a case filed 12 January 2018, the applicant sought, among other things, an order pursuant to s.39(3) of the Federal Circuit Court of Australia Act 1999 (“FCCA Act”) and r.8.02 of the Federal Circuit Court Rules 2001 (“FCCA Rules”) for the transfer this proceeding to the Federal Court of Australia (“FCA”).
In essence, the applicant relied on three bases for his transfer application. First, he said a superior court’s early determination of the issues in this proceeding will provide a binding authority of assistance to the Federal Circuit Court of Australia (“FCCA”). Second, he said a large number of other similar cases are pending before the FCCA and if this case were determined at FCA level, a very real prospect existed that those other cases that raise a similar issue would be resolved in the same way. Third, he said this case will not be heard in the FCCA until 2020 but the FCA will hear the case much sooner if the case is transferred to the FCA
The Minister for Immigration and Border Protection (“minister”) opposed the transfer. Several reasons were advanced for his opposition. Relevantly distilled, they were that –
a)this case involves the Immigration Assessment Authority (“IAA”) and not a single decision of the FCA in relation to the IAA has bypassed, or leapfrogged, the FCCA;
b)the legislative design of the Migration Act 1958 (“Act”) is to require applications for judicial review under the Act to pass from the lower statutory body to the FCCA and thereafter to the FCA, rather than going directly to the FCA;
c)in view of the large number of IAA matters pending before the FCA on appeal from the FCCA, in all likelihood some other case (not being this case) will be heard and determined by the FCA prior to this case being determined by the FCA thereby providing the necessary precedent that the applicant seeks; and
d)if granted, the applicant’s application is in reality queue jumping.
Synopsis
For the reasons that follow in my judgment the applicant’s request must be refused.
The issue in context
This case has not passed very far through its interlocutory phases. It was commenced on 25 May 2017. As is the norm, the applicant filed an affidavit with his application to commence this proceeding.
He exhibited the IAA decision to his affidavit. From that I was able to form at least some understanding of the facts on which the applicant relied. That said, no court book had been prepared. On 20 December 2017, a registrar of this court ordered by consent for the directions hearing that day to be adjourned to 21 February 2018.
More important matters that I took from the IAA decision are set out immediately below. In addressing those matters I have examined whether this proceeding is likely to involve one or more questions of general importance for the purpose of r.8.02(4) of the FCCA Rules, a matter additional to the mandatory relevant considerations prescribed by s.39(3) of the FCCA Act. The IAA provided its reasons on 8 May 2017 in response to the refusal of the minister’s delegate on 21 September 2016 to grant the applicant the protection visa for which the applicant applied on 29 March 2016. In paragraph 10 of the IAA’s reasons, the IAA distilled the applicant’s claims, the more important of which were as follows –
a)the applicant was born a Shia Muslim, although his parents are not strict Muslims and the applicant is now an atheist;
b)after completing his secondary schooling in 2006 the applicant commenced a degree in electronics in Azad University where he learned, to his disappointment, that university life was under the control of security forces and after four semesters he withdrew from his studies as he encountered repeated referrals to the Heresat office for wearing jeans and a T-shirt and for arguing in Islamic ideology classes and he was forced to give an undertaking not to ask inappropriate questions, he later being barred from attending end of semester examinations;
c)after finding work in an electronics shop the applicant was influenced by a Mr Mansouri as Mr Mansouri had been expelled from university in the 1980s on account of his religious and political views;
d)after completing military service in May 2012, the applicant moved to Tehran in search of work and the improvement of his knowledge on secularism in politics where he met with like minded friends on a weekly basis to discuss current political, social and religious issues;
e)the applicant and a former university friend started a web blog called “IranianFreedom” where they published articles and posts about freedom of speech, politics, religion and secularism as well as articles by one Bahram Moshiri, a political dissident and critic of the Iranian regime and by Ahmad Kasravi, an Iranian intellectual and prominent critic of Islam who had been assassinated by Islamists in the 1940s;
f)following the closure in October 2012 of two web blogs with which the applicant was associated, a blogger who was writing against the government was killed while in the custody of Iran’s cyber police and another blogger had been killed in 2009 while in custody;
g)on 9 January 2013, the applicant learned that his former university friend Hadi had been arrested by a plain-clothed officer and beaten and his computers, books and papers confiscated; and
h)the applicant knew they would come for him so he left Tehran on 18 January 2013 and after arriving in Australia the applicant discovered an arrest warrant had been issued and presented to his parents by police who had on three further occasions visited his parents’ home.
The IAA accepted that the applicant was an Iranian citizen of Kurdish ethnicity. However, the IAA did not accept that the applicant met the requirements of s.36(2)(a) of the Act as he did not meet the definition of refugee in s.5H(1) of the Act. The IAA concluded additionally that the applicant did not meet the requirements of s.36(2)(aa) of the Act as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant will suffer significant harm.
The IAA affirmed the delegate’s decision not to grant the applicant a protection visa.
This application seeking judicial review
In his initiating application to commence this proceeding filed 25 May 2017, the applicant relied on two grounds of application. They were as follows –
1.The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the Applicant and/or extend to him a real opportunity to reply to adverse information.
2.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.
Events overtook the second ground of application as Victoria Legal Aid represented the applicant in the hearing before me.
An amended application was prepared on the applicant’s behalf, limited to various contentions in relation to s.473DD of the Act. It is useful to set out the terms of the amended application verbatim, as follows –
The Second Respondent (the Authority) misdirected itself as to its function under s 473DD of the Migration Act 1958 (Cth) (the Act).
Particulars
1.On 21 September 2016, a delegate of the First Respondent (the Minister) decided to refuse to grant the Applicant a protection visa on the basis that he did not satisfy the criteria in s 36(2)(a) and (aa) of the Act (the Decision).
2.On or around 12 October 2016:
(a)the Minister referred the decision to the Authority for review, in accordance with s 473CA of the Act;
(b)the Secretary of the Department of Immigration and Border Protection gave the Authority the review material in respect of the Decision, in accordance with s 473CB of the Act.
3.The Applicant made a submission to the Authority on 11 October 2016 (the Submission), in which he submitted that “I politely disagree with the [Decision] due to the following reasons and circumstances”, which included, among other things: (a) information about his activities in Iran (the Iran activities information); (b) information about a weblog created by the Applicant in 2015 (the 2015 weblog information); and (c) a letter in Persian, with an English translation (the family’s letter).
4.On 8 May 2017, the Authority decided to affirm the Decision under s 473CC(2)(a) of the Act, for the reasons contained in the Authority’s written statement of reasons (the Reasons).
5.As to the Iran activities information, the Authority misdirected itself as to its function under s 473DD of the Act by asking whether the Minister’s delegate had previously considered information about the same facts or matters, rather than asking whether the Iran activities information was before the Minister’s delegate when the delegate made the Decision, as required by s 473DC(1)(a), and if not whether it might be relevant (s 473DC(1)(b)) (Reasons, paragraph 4).
6.As to the 2015 weblog information, the Authority misdirected itself as to its function under s 473DD of the Act by interpreting s 473DD(b) as requiring the Applicant to give a specific explanation as to the matters in s 473DD(b)(i) or (ii). Consequently, the Authority failed to consider whether the Applicant had satisfied it of the matter in s 473DD(b)(ii) by providing the 2015 weblog information, in the context of the Submission.
7.As to the family’s letter, the Authority misdirected itself as to its function under s 473DD of the Act by determining that there were no exceptional circumstances under s 473DD(a), without considering whether, and if so how, the family’s letter might have affected the consideration by the Minister’s delegate of the Applicant’s claims or might affect the Authority's consideration on review.
In paragraph 1 of the applicant’s application in a case filed 12 January 2018, leave was sought to file and serve the amended application. In his address to me on 19 January 2018, Mr Nekvapil of counsel for the applicant told me (T2L13) that the application for leave to file and serve the amended application was unopposed. Mr Tran of counsel for the minister did not submit that the minister opposed the grant of leave for the applicant to file and serve the amended application. In those circumstances I granted leave to the applicant to file and serve within 30 days the amended application in the form of annexure CC-2 to the affidavit of Chelsea Clark affirmed 8 January 2018 and filed in this proceeding on 12 January 2018. The respondents will have leave to file and serve any response within 30 days of the date on which the amended application is filed and served.
The transfer application
In paragraph 2 of the applicant’s application in a case filed 19 January 2018, the applicant framed the transfer application in the following terms –
Pursuant to s 39(1) of the Federal Circuit Court of Australia Act 1999 (Cth), and rule 8.02 of the Federal Circuit Court Rules 2001 (Cth), the proceeding be transferred from the Federal Circuit Court of Australia to the Federal Court of Australia.
Chelsea Clark, a solicitor in the employ of Victoria Legal Aid affirmed an affidavit in support of the application to transfer this proceeding from the FCCA to the FCA. Relevantly paraphrased, Ms Clark stated as follows –
a)Division 3 of Part 7AA of the Act was the subject of two recent decisions of the Full Court of the FCA, namely BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176;
b)those decisions did not provide answers to a number of important questions about the operation of the division, those questions being squarely raised by particulars 5, 6 and 7 to the ground set out in the amended application;
c)the amended application raises important questions about the construction and operation of ss.473DC and 473DD of the Act;
d)Ms Clark believed that a decision of the FCA answering those questions would provide guidance to the FCCA in dealing with a large number of extant and future proceedings in the FCCA;
e)this proceeding is listed before me on 7 October 2020;
f)the FCA is likely to hear this case in 2018 if the proceeding is transferred;
g)the timely resolution by the FCA of questions about in Division 3 of Part 7AA will provide some guidance and clarity; and
h)a transfer of this proceeding to the FCA is in the interests of the administration of justice.
The solicitor for the minister affirmed an affidavit made 17 January 2018 in which he stated that as at 17 January 2018 1,735 matters were pending in the FCCA in which the IAA was the second respondent.
Consideration
To better understand the context of this application, it is necessary to examine the history in which the Act currently requires applications for judicial review to be heard in the FCCA. At one time it was competent for applicants for relief under the Act to commence a proceeding in the original jurisdiction of the High Court of Australia. The legislation was amended to severely curtail that practice. Thereafter applicants for relief under the Act commenced to file their initiating process in the FCA. The parliament of the Commonwealth Australia responded by enacting s.476A of the Act so that the FCA has jurisdiction in relation to a migration decision (as defined) “if, and only if” the FCCA transfers the proceeding to the FCA under s.39 of the FCCA Act. In the absence of such a transfer of a proceeding from the FCCA to the FCA, the proceeding was heard and determined in the FCCA, consonant with the express provisions of ss.476 and 476A of the Act. In other words, the clear legislative intendment, as revealed by an ordinary construction of ss.476 and 476A of the Act is that cases involving applications for judicial review in relation to a migration decision under the Act would be heard by the FCCA. The FCA is empowered to hear such cases “if, and only if” the FCCA makes an order transferring a specific case from the FCCA to the FCA. It can only do so upon satisfaction of the elements of s.39(3) of the FCCA Act.
In debate with Mr Nekvapil as well as with Mr Tran, I probed about the elements of s.39(3) of the FCCA Act especially whether any authority, binding upon me, existed. Each referred to a decision of another judge of this court. That decision is not binding upon me so the matter seemed to me to be at large.
It seemed to me that s.39(3) of the FCCA Act fell to be construed according to ordinary canons of statutory construction about which I wrote in Commissioner of State Revenue v Kimiora.[1] The four alphabetical subsections are linked by the conjunctive phrase “and” meaning that the provisions in all alphabetical subsections must be met before s.39(3) will be satisfied. The matters to which the FCCA must have regard, as s.39(3) provides are –
a)any rules of court made for the purposes of s.40(2) of the FCCA Act; and
b)whether proceedings in respect of an associated matter are pending in the Federal Court; and
c)whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
d)the interests of the administration of justice.
[1] (2016) 309 FLR 277
For the purposes of s.39(3)(a), r.8.02(4) of the FCCA Rules provides that five additional factors are relevant. Curiously, those additional factors were not linked by the conjunctive phrase “and”. The rule simply stated that those five factors are relevant. They are –
a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of (relevantly) the FCA on one or more of the points in issue;
b)whether, if the proceeding is transferred, the proceeding is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
c)whether the proceeding will be heard earlier in the FCCA;
d)the availability of particular procedures appropriate for the class of proceeding;
e)the wishes of the parties.
Returning to the provisions of s.39(3) of the FCCA Act, the evidence in this case was extremely scant before me about whether one or more proceedings in respect of an associated matter was pending in the FCA. Ms Clark deposed to this case in its amended form involving issues relating to Part 7AA of the Act. In his affidavit, the solicitor for the minister affirmed that over 1,700 other cases are pending before the FCCA in relation to Part 7AA. Taking both of those pieces of information the only connection between this case and the so-called associated matter or matters pending in the FCA is that each involves Part 7AA of the Act. No analysis was undertaken about the specific issues under Part 7AA of the Act in those other cases pending in the FCA. To my mind, to say that this case was “associated” with other pending cases in the FCA on account of the common link being Part 7AA of the Act was no different to saying that a case in the FCCA was “associated” with a case in the FCA because each involved judicial review from a merits review from the Administrative Appeals Tribunal. The associated nature of this case with some case in the FCA was not demonstrated. Whatever association may have existed was tenuous in the extreme. I was not persuaded that the requirements of s.39(3)(b) of the FCCA Act were met.
That finding in respect of s.39(3)(b) was sufficient to dispose of this application. However, in case I was wrong about s.39(3)(b), it was next necessary to address the requirements of s.39(3)(c) of the FCCA Act. That subsection called for an examination of the resources of the FCCA and whether they are sufficient to hear and determine the proceeding. Without doubt, the answer that question is in the affirmative.
For the purposes of s.39(3)(d) of the FCCA Act, no guidance is given about the metes and bounds of the phrase “in the interests of the administration of justice” in the context of a transfer of a case from the FCCA to the FCA. It struck me that the phrase was not intended to require the transferring court (the FCCA) to focus on matters specific to, peculiar of or idiosyncratic in respect of the parties but instead that some matter of general importance was involved.
On the facts of this case, only the particulars to the amended ground of application gave any insight into the nature of the case that the applicant sought to advance. It was necessary to go to the detail of those particulars to ascertain whether a point of general utility – hence “general importance” and therefore “in the interests of the administration of justice” – arose.
Particulars 1, 2 and 3 were fact-specific to this case or were merely historically narrative in nature. No point of general importance arose in any of those paragraphs. Particular 4 fell into the same category.
In particular 5, the applicant contended that the IAA misdirected itself as to its function under s.477DD of the Act because the IAA failed to ask whether certain information was before the delegate when the delegate made the decision as required by s.473DC(1)(a) of the Act.
Does that proposition raise a matter of general importance such that it is in the interests of the administration of justice (all other elements of s.39(3) of the FCCA Act and r.8.02(4) of the FCCA Rules being met) to transfer this case?
In my opinion the answer to that question was in the negative. Already a very considerable body of jurisprudence has evolved about Part 7AA of the Act. In Mr Nekvapil’s written submissions, he referred to certain decisions of the FCA having considered aspects of Part 7AA of the Act, citing BVZ16 v Minister for Immigration and Border Protection[2] and Minister for Immigration and Border Protection v BBS16.[3] Mr Nekvapil also referred to a decision of a magistrate that I decline to follow as a magistrate’s decision does not bind me.
[2] [2017] FCA 958.
[3] [2017] FCAFC 176.
But the cases cited by Mr Nekvapil barely touched the large (and growing) body of decisions of the FCA in respect of Part 7AA of the Act. Among them are Minister for Immigration and Border Protection v AMA16,[4] CHF16 v Minister for Immigration and Border Protection,[5] AZR16 v Minister for Immigration and Border Protection,[6] Minister for Immigration and Border Protection v CRY16,[7] DGZ16 v Minister for Immigration and Border Protection[8] and Minister for Immigration and Border Protection v DZU16.[9] On top of those are several decisions in this court such as my own decisions in CSJ17 v Minister for Immigration and Border Protection,[10] CSR16 v Minister for Immigration and Border Protection,[11] DRG17 v Minister for Immigration and Border Protection,[12] DVI17 v Minister for Immigration and Border Protection,[13] EEM17 v Minister for Immigration and Border Protection,[14] his Honour Judge Smith’s decision in DFZ16 v Minister for Immigration and Border Protection[15] and CWP16 v Minister for Immigration and Border Protection.[16] Of course, there are many more. As Mr Tran submitted, it may well be the fact that a case raising the issues that this case raises is already listed in the FCA or is presently heard with judgment reserved.
[4] [2017] FCAFC 136.
[5] [2017] FCAFC 192.
[6] [2017] FCA 1453
[7] [2017] FCAFC 210.
[8] [2018] FCAFC 12.
[9] [2018] FCAFC 32.
[10] [2018] FCCA 269.
[11] (2017) 324 FLR 364.
[12] [2018] FCCA 221.
[13] [2018] FCCA 241.
[14] [2018] FCCA 337.
[15] [2017] FCCA 2427.
[16] [2018] FCAFC 28.
In the end, I was unable to see how particular 5 raised a point of general importance as opposed to raising a fact-specific point of relevance only to this case. Likewise, particulars 6 and 7 fell into the same category, albeit that on the facts of the case each raised an issue about some aspect of the operation of s.473DD of the Act.
It seemed to me that each of the four essential criteria prescribed by s.39(3) of the FCCA Act were not met.
Turning to the five elements of r.8.02(4) of the FCCA Rules, I have already addressed the question whether the proceeding is likely to involve questions of general importance. That question was answered in the negative. To the question whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not so transferred, the answer is also in the negative. Leaving aside the speed at which a proceeding can be heard and determined in the FCA, no doubt commensurate with the FCA judges having dockets mostly of less than 60 cases to be contrasted with FCCA judges having dockets ordinarily of 600 cases, a case involving judicial review of a migration decision is heard with the same cost and convenience in the FCCA as in the FCA. No appreciable reduction in costs nor enhancement of convenience exists in the FCA over the FCCA.
It is true, and both counsel agreed, that if this case were transferred to the FCA, it would be heard and determined sooner than in the FCCA.
The availability of particular procedures was an irrelevancy.
In this case the applicant wanted the case to be transferred and the minister opposed the transfer. The reasoning behind the wishes of each was entirely understandable. The applicant wanted his case heard and determined quickly. The minister wanted the legislative regime prescribed by the Act to be followed with the case being heard and determined in the FCCA at first instance.
It seemed to me that, of the four matters in s.39(3) of the FCCA Act and the five matters in r.8.02(4) of the FCCA Rules, only one weighed heavily in the balance, namely the speed at which this case, if transferred, could be heard and determined by the FCA. That may have been a compelling point, possibly even a point that was determinative, if so many other issues had been similarly in the applicant’s favour. But they were not. In particular –
a)the applicant did not identify an associated matter as being pending in the FCA, beyond the nebulous issue that this case and over 1,700 other cases involve the IAA;
b)the FCCA resources are adequate to hear and determine this case;
c)no special point arose in this case in the interests of the administration of justice;
d)no special point (or any points for that matter) of general importance arose in this case;
e)the costs of this case in the FCCA were no less than in the FCA and the convenience of this case in the FCA was no greater than in the FCCA;
f)no particular procedures were relevant; and
g)the parties’ wishes were opposed.
To my mind, Mr Tran was correct when he submitted that the applicant was seeking to queue jump by making this application. The interests of other litigants in cases presently pending before the FCCA are relevant where those other litigants are waiting their turn to be heard, as was held in Aon Risk Services Australia Ltd v Australian National University.[17]
[17] (2009) 239 CLR 175.
Before leaving this matter it is necessary to say something about Mr Tran’s argument concerning the FCA’s status as an intermediate appellate court in migration cases.
Over many years, amendments to the Act had the effect of changing the court in which applications for judicial review are heard. Paragraph 429 of the explanatory memorandum to the Migration Reform Bill 1992 explained the proposed s.166LL in the following terms –
This section provides that subject only to section 75 of the Constitution, the Federal Court is the only Court with power to review judicially reviewable decisions.
That section stemmed a large number of applications under the Act from being issued directly into the High Court of Australia.
In 2005 further amendments to the Act were proposed. Among them was the proposal for migration cases to be heard and determined by the legislative predecessor to the FCCA, then known as the Federal Magistrates Court of Australia (“FMCA”). The Attorney-General of the day, the Honourable Philip Ruddock MP gave the second reading speech on 10 March 2005 in relation to the Migration Litigation Reform Bill 2005. The more salient passages that speech were as follows –
The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts’ powers in dealing with an unsustainable case.
Having regard to the high rate of unsuccessful migration cases, the government is also concerned to ensure lawyers and other advisers on migration matters do not promote the prosecution of unmeritorious cases and claims.
It is grossly irresponsible to encourage the institution of unmeritorious cases as a means simply to prolong an unsuccessful visa applicant’s stay in Australia.
It is equally irresponsible for advisers to frustrate the system by lodging mass-produced applications without considering the actual circumstances of each case.
In the explanatory memorandum to the Migration Litigation Reform Bill 2005, item 17 made important statements about the jurisdiction of the FMCA and also of the FCA in migration cases. The following are the more important segments of the Migration Litigation Reform Bill 2005 –
3.This item repeals sections 475A and 476 and inserts new sections 476, 476A and 476B. The effect of these items is to direct nearly all migration cases to the FMC, to limit the Federal Court’s original jurisdiction in relation to migration cases, and to direct migration cases remitted by the High Court to the appropriate lower court.
Jurisdiction of the Federal Magistrates Court
4.Subject to the exceptions set out in subsection 476(2), new subsection 476 provides that the FMC has the same original jurisdiction under the Migration Act in relation to migration decisions as the High Court has under section 75(v) of the Constitution. ‘Migration decision’ is defined in item 11, Schedule 1. This means that the grounds of judicial review are the same whether an application for judicial review of a migration decision is filed in the FMC or the High Court. Identical grounds make it easier for the courts to deal with applicants attempting to seek multiple rounds of judicial review of the same migration decision, by reference to the doctrine of issue estoppel.
In his signature treatise ‘Judicial Review – General Principles’, Nicholas Poynder at paragraph 120,025 wrote about three federal courts in Australia having jurisdiction in migration cases. He said the following –
There are only three courts with jurisdiction in relation to migration decisions: MA s 484. These are:
(a)The FCC, where the vast majority of applications for judicial review are lodged. The FCC has the same original jurisdiction as the High Court under s 75(v) of the Constitution: MA s 476(1). However the FCC does not have jurisdiction to review “primary decisions”, decisions of the AAT relating to the “character test”, certain decisions made personally by the Minister, and certain decisions referred to in s 474(7): MA s 476(2). These are mainly vested in the FC.
(b)The FC, which has a limited original jurisdiction for the judicial review of migration decisions, and will rarely be the first avenue of review. The original jurisdiction of the FC is essentially limited to transfers from the FCC, decisions of the AAT relating to the “character test”, and certain decisions made personally by the Minister: MA s 476A(1). The primary role of the FC in relation to migration decisions is appellate; that is, to consider appeals from the FCC: Federal Court of Australia Act 1976 (Cth) (FCA Act) s 24(1)(d).
(c)The HC, which has an original jurisdiction under s 75(v) of the Constitution: MA s 476(1). However the HC will rarely by the first “port of call” in migration cases, and where proceedings have been commenced in the HC which might have been commenced in the FCC or FC, the HC will usually remit the matter to the appropriate lower court: Judiciary Act 1903 (Cth) (JA) s 44. Note, however, that the HC cannot remit a matter to one of the lower courts where that court does not have jurisdiction: MA s 476B. The HC also has an appellate jurisdiction, to consider appeals from the FC, which in turn may have originated in the FCC: s 73 of the Constitution. An appeal cannot be brought from the FC to the HC unless the HC has granted special leave to appeal: FCA Act s 33. (citation omitted)
Importantly, while recognising that the FCA has a limited original jurisdiction for judicial review in migration cases, the FCA may receive transfers from the FCCA but the FCA’s primary role in relation to migration decisions is appellate. That accords with my construction of s.484 of the Act.
I was not persuaded that the applicant was entitled to the relief he sought his application in a case filed 12 January 2018, beyond the grant of leave to amend his application, the details of which have already been canvassed.
Conclusion
In relation to paragraph 1 of the application in a case filed 12 January 2018, I grant the applicant leave to file and serve an amended application in the form of annexure CC-2 to the affidavit of Chelsea Clark affirmed 8 January 2018 and filed in this proceeding on 12 January 2018.
In relation to paragraph 2 of the application in a case filed 12 January 2018, I refuse the transfer of this proceeding to the FCA.
So far as costs are concerned, they should be reserved to abide the outcome of the hearing of this application for judicial review.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson
Associate:
Date: 19 March 2018
CORRECTION
Added the word “proceeding” to the end of the sentence, before the full stop, for the “PRACTICE AND PROCEDURE” headnote on the cover page.
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