CHN17 v Minister for Immigration and Anor (No.2)
[2018] FCCA 1386
•27 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHN17 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2018] FCCA 1386 |
| Catchwords: PRACTICE AND PROCEDURE – s.39 of the Federal Circuit Court of Australia Act considered – no basis to transfer proceeding from this court to the Federal Court of Australia – r.8.04 of the Federal Circuit Court Rules considered – substantial obstacles to any such transfer. |
| Legislation: Migration Act 1958, ss.476(2)(b), 476A(1)(b), 500(1)(b), 501(1)(b), 501(6), Direction No. 65 Federal Circuit Court of Australia Act 1999, s.39 Federal Circuit Court Rules 2001, r.8.02(4) |
| Cases cited: CHN17 v Minister for Immigration & Border Protection [2018] FCCA 690 CFM17 v Minister for Immigration & Border Protection [2018] FCCA 649 |
| Applicant: | CHN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 277 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 27 April 2018 |
| Date of Last Submission: | 27 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 April 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
This proceeding is dismissed.
The applicant pay the respondent’s costs, including reserved costs, fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 277 of 2017
| CHN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
This case has raised a jurisdictional issue about whether the applicant has brought his case in the correct court. This litigation has had a chequered history but today I dealt with the substance of and merits of the application.
A related procedural aspect was dealt with in the case of CHN17 v Minister for Immigration & Border Protection.[1] For the reasons that follow I agree with the submissions advanced by Mr Cunynghame that the applicant has filed this proceeding in the wrong court. It is not competent for me to transfer this proceeding to the Federal Court for the reasons I canvassed in CFM17 v Minister for Immigration & Border Protection.[2]
[1] [2018] FCCA 690
[2] [2018] FCCA 649
Short factual narration
To understand the reasons behind my decision it is necessary to go to a little of the background. The applicant, a citizen of India, arrived in Australia on 25 January 2014 as the holder of a student (temporary) (class TU) visa.
On 19 December 2015 he was charged with three offences. The first was grooming a child under 16 years with intent to procure engagement in a sexual act. The second was using the internet to procure children under 16 years and intentionally meeting or going to meet a child. The third was grooming a child under 16 years with intent to expose indecent matter. The applicant was held in custody from 19 December 2015 to 31 May 2016 awaiting sentencing. On 19 August 2016 his student visa was cancelled and he was moved to immigration detention. It seems he has been in detention ever since, and he appeared by video link today from a facility in Northern Australia.
On 25 October 2016 the applicant pleaded guilty to using the internet to procure children under 16 years and intentionally meeting or going to meet a child. He was sentenced to a term of imprisonment of 15 months which was suspended for a period. On 4 December 2016 the applicant lodged an application for a bridging (class WE) visa. On 14 December 2016 the applicant was issued with a notice of intention to consider refusal in respect of his bridging visa. On 17 February 2017 a delegate of the minister made a decision refusing to grant a bridging visa under s.501(1) of the Migration Act.
On 27 February 2017 the applicant applied to the Administrative Appeals Tribunal for review of the visa refusal decision. On 2 May 2017 the Administrative Appeals Tribunal affirmed the decision of the delegate. The tribunal addressed 15 pages and 65 numbered paragraphs of reasons in arriving at its determination to affirm the minister’s delegate’s decision. It is undesirable for me to go into very much detail of the tribunal’s decision because the applicant may well seek relief in the Federal Court of Australia at some later stage.
Suffice it to say that the tribunal considered the propriety of the delegate’s decision by including in its determination a consideration of direction 65 and s.501 cancellation provisions.
In this court
On behalf of the minister Mr Cunynghame submitted that the applicant applied to the wrong court. For reasons stated earlier I agree with his contentions. The path of reasoning to that conclusion involves a consideration of several provisions of the Migration Act. Under s.501(1) the minister may refuse to grant a visa to a person if the person does not satisfy the minister that the person passes the character test as defined. The character test is complicated and its provisions are recorded in s.501(6).
Under s.500(1)(b) a decision of the minister's delegate under s.501 can be reviewed by the Administrative Appeals Tribunal. Where the Administrative Appeals Tribunal reviews a decision under s.500 of the Migration Act then the Federal Court of Australia has original jurisdiction in relation to that migration decision under s.476(2)(b). The Federal Circuit Court of Australia has no jurisdiction in relation to a decision of the Administrative Appeals Tribunal on review under s.500.
In this case the minister's refusal to grant the applicant the visa by reason of his failure of the character test was the subject of a determination by the Administrative Appeals Tribunal given under s.500 of the Migration Act. Under s.476(2)(b) of the Migration Act the Federal Circuit Court of Australia has no jurisdiction to consider any such tribunal decision. Instead, under s.476A(1)(b) the Federal Court of Australia has power to determine an appeal from the tribunal.
It follows that the applicant should have but failed to bring his application under the relevant provision of the Migration Act to the Federal Court of Australia. This court had no power to grant the applicant the relief he sought. Today the applicant told me that he took the view that he was not given sufficient time to file his documentation. To my mind that missed the point. The critical question was whether the application was brought in the correct court and in my view it was not.
In view of the significant time that the applicant has been in migration detention I gave consideration to whether it was competent to transfer this proceeding to the Federal Court of Australia rather than dismissing it. For the reasons that I considered in CFM17 v Minister for Immigration & Border Protection, in my view it was not appropriate to make an order transferring this case to the Federal Court of Australia. In my view it was not proper to transfer this case to the Federal Court of Australia as a basis for doing so under s.39 of the Federal Circuit Court of Australia Act did not exist. Further r.8.02(4) of the Federal Circuit Court Rules presented substantial obstacles to any such transfer.
Conclusion
In those circumstances I agree with the urgings of Mr Cunynghame that the only permissible option was the dismissal of this application.
It should be recorded that I have not entered upon the merits of the applicant’s claims and I have expressed no view about whether or not jurisdictional error has been committed and have only considered the threshold question of the court into which this proceeding should have been issued.
It seems to me that in the circumstances the proper and only available order open is for the dismissal of this application and to make orders that the applicant pay the minister’s costs, including reserved costs, of $7,328.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 28 May 2018
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