CHN17 v Minister for Immigration
[2018] FCCA 690
•23 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHN17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 690 |
| Catchwords: MIGRATION – Bridging (class WE) visa – case listed for show cause hearing – case prepared badly – wrong documentation exhibited – application yet to be heard – show cause application dismissed – further hearing of substantive application ordered to be heard – whether this court has jurisdiction. |
| Legislation: Federal Circuit Court of Australia Act 1999, s.39 |
| Cases cited: Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299 |
| Applicant: | CHN17 |
| First Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| Second Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 277 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 2 February 2018 |
| Date of Last Submission: | 2 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: | No appearance |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
By 4pm on 6 April 2018 (Australian Eastern Standard Time), the applicant file and serve any written submissions on the threshold question of the jurisdiction of the Federal Circuit Court of Australia to hear and determine the application filed 30 May 2017.
Within 14 days of the applicant filing and serving written submissions on the threshold question of jurisdiction pursuant to order 1 hereof, the respondents file and serve any written submissions in reply.
The matter is adjourned to 27 April 2018 at 1pm (Australian Eastern Standard Time) for hearing of the threshold question of the jurisdiction of the Federal Circuit Court of Australia to hear and determine the application filed 30 May 2017.
The applicant has leave to appear at the hearing on 27 April 2018 by video link.
The question of the parties’ costs is reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 277 of 2017
| CHN17 |
Applicant
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
First Respondent
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this proceeding suffered a sorry fate when the minister’s representative presented the case on the hearing of the application for judicial review on 2 February 2018.
Pursuant to paragraph 1 of the orders made in this proceeding on 24 November 2017, the minister was ordered to annex the relevant Tribunal decision to the minister’s outline of submissions by 15 December 2017. The minister duly filed submissions by the date ordered. However, to those submissions the minister stapled a 45 paragraph decision record prepared by Tribunal member Dr Colin Huntly made on 19 October 2017 at 12:48pm in Perth in case number 1709872. That was a different decision record to the document exhibited by the applicant to his affidavit affirmed 25 May 2017. The decision record exhibited by the applicant to his affidavit was made on 2 May 2017 in Brisbane by senior member Theodore Tavoularis in proceeding 2017/1119, a single page document that purported to record the relevant decision is being the following –
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
In paragraph 2 of his affidavit filed with his application to commence this proceeding, the applicant stated he was applying for judicial review of the decision of the Tribunal made on 2 May 2017. In paragraph 1 of the minister’s written submissions filed 15 December 2017, the author (one Ben Dube of Sparke Helmore, Perth) wrote that the applicant sought judicial review of the decision of the Tribunal dated 2 May 2017. The decision record that was stapled to the minister’s submissions appeared to have emanated from a court book as it bore page numbers 113 – 128 stamped at the bottom of each page. No court book was ordered in this case.
On 2 February 2018, while sitting in Perth I heard this case as a show cause application in the way it had been ordered to proceed pursuant to the orders made on 24 November 2017. The minister’s written submissions were very short. When the minister’s solicitor appeared, not being the author of the written submissions, he told me the applicant had been charged with various offences including grooming a child under 16 with intent to procure engagement in a sexual act, using the Internet to procure children under 16 years and intentionally meeting or going to meet a child and grooming a child under 16 years with intent to expose indecent material. He said the applicant’s student visa was cancelled and the applicant was detained in immigration detention where he has remained since 25 October 2016. The minister’s solicitor told me the applicant pleaded guilty to various offences and was sentenced to 15 months’ imprisonment. He said the minister’s delegate refused the applicant’s application for a bridging visa and the Tribunal affirmed the decision to refuse the bridging visa on 2 May 2017.
The minister’s solicitor submitted before me that the Federal Circuit Court of Australia did not have power to review the Tribunal’s decision in this case. That submission surprised me when I first heard it as the Tribunal decision stapled to the minister’s written submissions raised issues about a protection visa and issues of the sort that are dealt with every day in this court in the context of a protection visa so the minister’s contention that this court had no jurisdiction caused me concern. The minister’s solicitor then told me that the minister’s representative had filed the wrong version of the Tribunal’s reasons but he said he was unable to explain how or why that happened.
It was readily apparent that on the day ordered for the hearing of the show cause application the correct Tribunal decision had not been provided by the minister’s solicitors, whether to me or to the applicant. After a searching exchange with the solicitor then appearing for the minister, I made orders as follows –
1.The second respondent’s application in its response filed 29 June 2017 for dismissal of the applicant’s application filed 30 May 2017 is dismissed.
2.By 4pm on 2 February 2018, the second respondent deliver by email to [email protected] a clean, electronic copy (in Microsoft Word format) of a minute of proposed orders setting out the timetabling of this matter, for the provision of:
i.the second respondent filing and serving an affidavit exhibiting:
a. the chronological sequence of events before the delegate of the second respondent, with reasons for each event;
b. the decision record of the second respondent;
c. the chronological sequence of events before the first respondent, with reasons for each event; and
d. the decision record of the first respondent; and
ii.second respondent filing and serving submissions addressing:
a. what application for review this court should consider and, if the decision of the delegate of the second respondent involves a revocation of a visa, what that revocation is;
b. the reason for the delay in the provision of a written decision record from the first respondent; and
c. why this matter should be transferred to the Federal Court of Australia.
3.The second respondent pay the applicant’s costs of today.
Pursuant to the orders made on 2 February 2018, an affidavit was filed, in the time ordered. The deponent was the solicitor who appeared on behalf of the minister on 2 February 2018. To that affidavit the deponent exhibited a chronology of the sequence of events before the minister’s delegate. That document revealed the following –
Date
Event
19 August 2016
The applicant’s Student visa was cancelled and the applicant was placed in immigration detention.
25 October 2016
The applicant pleaded guilty to “using internet to procure children under 16 and intentionally meeting or going to meet child” and was sentenced to a term of imprisonment of 15 months suspended after 165 days.
4 December 2016
The applicant applied for a Bridging Visa E.
14 December 2016
The applicant was issued a Notice of Intention to Consider Refusal in relation to the Bridging Visa E under s 501(1) of the Migration Act 1958. The applicant was invited to comment and provide information.
30 January 2017
The second respondent received submissions from the applicant
3 February 2017
The second respondent sent the applicant further information regarding intended visa refusal under s 501(1) of the Migration Act 1958, being a copy of the applicant’s National Police Certificate 4 January 2017.
17 February 2017
An officer of the second respondent produced a submission for decision to the delegate.
17 February 2017
The delegate of the second respondent refused to grant the Bridging Visa E under s 501(1) of the Migration Act 1958 (Cth).
18 February 2017
The applicant provided documents to the second respondent including statutory declarations and a letter from a counsellor.
20 February 2017
The applicant was notified of the delegate’s decision to refuse to grant the Bridging Visa E.
The minister’s solicitor also exhibited a copy of the delegate’s reasons for refusing to grant the applicant a bridging (class WE) visa under s.501(1) of the Migration Act 1958 (“the Act”).
The minister’s solicitor exhibited a chronology of events before the Tribunal. That document revealed the following –
Date
Event
27 February 2017
The applicant made an application to the first respondent for review of the decision of a delegate of the second respondent to refuse to grant the applicant a Bridging Visa E.
8 March 2017
The first respondent made the following directions:
1. “On or before Friday, 17 March 2017 the Respondent must lodge with the Tribunal and give to the Applicant all “G documents”.
2. On or before Friday, 31 March 2017, the Applicant must lodge and serve:
a. any witness statements and other evidence on which the Applicant intends to rely at the hearing; and
b. a Statement of Facts, Issues and Contentions.
3. 3. (sic) On or before Friday, 21 April 2017, the Respondent must lodge with the Tribunal and give to the Applicant:
a. any witness statements and other evidence on which the Respondent intends to rely at the hearing; and
b. a Statement of Facts, Issues and Contentions.
4. On or before Wednesday, 26 April 2017, the Applicant must lodge with the Tribunal and give to the Respondent, any evidence in reply or a letter indicating that the Applicant does not intend to do so.
5. The matter be listed for a one day hearing on Tuesday, 2 May 2017.
a. The Applicant is granted leave to appear by video, which will be arranged by the Respondent. “ (sic)
16 March 2017
The first respondent issued a summons against the Commissioner of Queensland Police to produce documents
17 March 2017
The second respondent filed and served G documents.
31 March 2017
The applicant filed evidence in support of the application.
3 April 2017
The first respondent granted the parties leave to inspect the documents produced under summons by the Commissioner of Queensland Police.
7 April 2017
The applicant filed further evidence in support of the application.
21 April 2017
The second respondent filed and served a Statement of Facts, Issues and Contentions
2 May 2017
The parties attended a hearing before the first respondent.
2 May 2018
The first respondent made an oral decision to affirm the decision of a delegate of the second respond to refuse to grant the applicant a Bridging Visa E.
The minister’s solicitor exhibited a copy of the single page decision of senior member Theodore Tavoularis dated 2 May 2017, an identical version of which was exhibited by the applicant to his affidavit affirmed on 25 May 2017.
The minister’s solicitor exhibited the written reasons of senior member Tavoularis dated 2 June 2017, those reasons being 15 pages in length. In it, the Tribunal explained its reasons for affirming the delegate’s decision to refuse the applicant’s bridging visa application.
The minister’s solicitor filed a further affidavit, being his affidavit affirmed on 16 February 2018. To that affidavit he exhibited the Tribunal’s letter dated 2 May 2017 and the single sheet decision record of senior member Tavoularis also dated 2 May 2017. The minister’s solicitor also exhibited to that affidavit a copy of the Tribunal’s letter to the minister (care of his solicitors) dated 2 June 2017. In that letter the Tribunal stated that it attached a copy of the written reasons of the Tribunal given by the senior member but those reasons were not part of the documents in the solicitor’s exhibit ACX1. To that affidavit the minister’s solicitor also exhibited a letter dated the 24 July 2017 from the minister’s Perth solicitors to the applicant, the salient part of which stated that under s.476(2)(b) of the Act, this court had no jurisdiction in relation to decisions of the Tribunal made under s.500 of the Act, as was the Tribunal’s decision in this case. The minister’s solicitors invited the applicant to discontinue this proceeding.
Pursuant to paragraph 2(b) of my orders made on 2 February 2018, the minister’s solicitor filed supplementary written submissions on 16 February 2018. A number of issues arose from those submissions that must be recorded.
First, when this case was before me on 2 February 2018, the minister’s solicitor submitted that this court had no jurisdiction to review the Tribunal’s decision in this matter. He explained (T5L20) that s.476(2) of the Act provides that the Federal Circuit Court of Australia has no jurisdiction in relation to a decision of the Administrative Appeals Tribunal made under s.500 of the Act. He submitted that in this case the decision of the Tribunal refusing the applicant’s application for a bridging visa was a decision under s.500 of the Act and therefore the applicant should have filed this application in the Federal Court of Australia rather than in the Federal Circuit Court of Australia. In the minister’s supplementary written submissions filed 16 February 2018, the minister’s solicitor submitted that this court should consider the application for judicial review filed on 30 May 2017. He said in paragraph 7 of the minister’s supplementary written submissions that the minister does not submit that this matter should be transferred to the Federal Court of Australia. Instead, he argued that I should dismiss this proceeding. He said the following –
This submission is made on the basis that s 476(2) the Migration Act 1958 (the Act) provides that the Federal Circuit Court has no jurisdiction in relation to a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under s 500 of the Act.
In this case, the relevant decision of the Tribunal was made under s.501(1) of the Act. The Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a bridging visa. Section 476(2) of the Act provides that a decision under s.501 is not reviewable in the Federal Circuit Court of Australia.
At one stage the minister invited me to consider transferring this proceeding to the Federal Court of Australia pursuant to s.39 of the Federal Circuit Court of Australia Act 1999, calling in aid the decision of Stone J in Fisher v Minister for Immigration and Citizenship.[1] More recently, the minister abandoned that submission and contended instead that I should simply dismiss the proceeding on the basis that it was issued in the wrong court.
[1] (2007) 162 FCR 299.
Acceding to that submission would, or might, raise procedural fairness issues. After all, the whole the hearing on 2 February 2018 was wasted on issues that arose from the minister’s failure to put before the court the proper documentation. On that day the applicant was not called on. Instead, the show cause application was dismissed and I ordered the minister to pay any costs incurred that day by the applicant. The applicant has not been heard on any issue arising this case. It would be wrong to dismiss this proceeding in accordance with the minister’s request without hearing from the applicant all.
In those circumstances, it seems to me that I should list this proceeding to further hearing by video link so that the applicant can be heard on whatever submissions he wishes to make on the threshold question of the jurisdiction of the Federal Circuit Court of Australia to hear and determine the applicant’s application for judicial review of the Tribunal’s decision to affirm the delegate’s refusal to grant the applicant a bridging visa.
The parties will be notified of a hearing date in due course. I propose to list this proceeding to further hearing on 27 April 2018 at 1pm Australian Eastern Standard Time. The question of costs will be reserved.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson
Associate:
Date: 23 March 2018
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