Chung v Minister for Immigration - [2002] FMCA 293

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHUNG & ANOR v MINISTER FOR IMMIGRATION

[2002] FMCA 293

MIGRATION – Application to review primary decision by a delegate to refuse to grant a visa, and a decision to issue a notice of that decision to the applicant – whether the notice was sent to the last address notified by the applicant for service of notices – whether the Federal Magistrates Court has jurisdiction to review a primary decision that cannot be reviewed by a review tribunal – whether the Federal Magistrates Court has jurisdiction to review the notification of a primary decision.

PRACTICE AND PROCEDURE – Whether the application should be transferred to the Federal Court – whether the application raises an important question of general application.

Federal Court of Australia Act 1976 (Cth), s.32AB

Federal Court Rules

Federal Magistrates Act 1999 (Cth), s.39
Federal Magistrates Court Rules 2001 (Cth)
Judiciary Act 1903 (Cth), ss.39B, 44
Migration Act 1958 (Cth), ss.476, 475A, 483A

NAFZ v Minister for Immigration [2002] FCA 1291

First Applicant:

Second Applicant:

JAE HO CHUNG

K-MAX INTERNATIONAL PTY LTD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ543 of 2002

Delivered on:

25 November 2002

Delivered at:

Sydney

Hearing Date:

25 November 2002

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr R Nair

Counsel for the Respondent:	Ms M Allars
Solicitors for the Respondent:	Blake Dawson Waldron

ORDERS

That the matter be transferred to the Federal Court, pursuant to s.39 of the Federal Magistrates Act 1999 (Cth) and the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ543 of 2002

JAE HO CHUNG

First Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This matter came before me today for hearing. An application was filed in this Court on 16 July 2002 seeking judicial review of what it said by the applicant to be a decision by an officer of the Department of the respondent Minister to notify the applicant of a decision of the delegate of the Minister to refuse his application for a visa. It is alleged by the applicant that the notification was not sent to the last address notified by the applicant's migration agent as the address for services and notices and that, in consequence, a procedure required by the Migration Act 1958 (Cth) (“the Migration Act”) and the Migration Regulations (“the Migration Regulations”) was not followed.
There is an issue of fact whether the applicant's migration agent did change the address for service of notices, by letter to the Department of Immigration and, if so, when that was done. That issue of fact may well determine the outcome of the question whether proper notification was given by the Department and whether the applicant applied within time to the Migration Review Tribunal (“the MRT”) to review the decision of the delegate.
The applicant has applied to the MRT to review the delegate's decision and the MRT has not to this point decided whether the application was made within the time fixed for such applications. Written submissions have been filed on behalf of the respondent identifying two issues of significance. One is whether this Court has jurisdiction to review a decision of the respondent's delegate to refuse to grant a visa pursuant the Migration Act. The second is whether this Court has jurisdiction to review the notification of a delegate's decision to refuse to grant a visa.
It is apparent from the legislation that ordinarily this Court and the Federal Court do not have jurisdiction to review a decision which is reviewable by the MRT or the Refugee Review Tribunal (“the RRT”) until such time as the decision has been reviewed by one or other of those tribunals. However, there is what appears to be an unresolved question of whether the Court has jurisdiction to review a primary decision in the event that the review tribunal itself has no jurisdiction to review the primary decision. The answer to that question probably depends upon the interpretation of the second part of the definition of “primary decision” in s.476(6).
The second issue, and on my brief search I could find no authority on it, is whether this Court has jurisdiction to review a “decision” to notify the delegate's decision to refuse to grant the visa to the applicant. Ms Allars, in her written submissions, has referred to relevant provisions of the Migration Act, in particular ss.483A, 476 and 475A of the Migration Act.
The last section is of particular significance. That section provides s.476 does not affect the jurisdiction of the Federal Court under ss.39B or 44 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) or s.39 of the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”), or the jurisdiction of the Federal Magistrates Court under s.483A of the Migration Act, s.44 of the Judiciary Act or s.32AB of the Federal Court of Australia Act 1976 (Cth) in relation to a privative clause decision that is a decision made on review by a tribunal under part 5 or 7 or section 500 or any other decision in respect of which the court's jurisdiction is not excluded by s.476 [emphasis added].
I have not today found any authority of this Court or the Federal Court on the question whether the courts are able to review a notification decision. The answer to that question may influence the answer to the broader question of whether this Court and the Federal Court have jurisdiction to review a primary decision that cannot be reviewed by a review tribunal, due to those tribunals lacking jurisdiction, where no application for review is made within the prescribed time period.
That brings me to the issue of whether these proceedings should be transferred to the Federal Court. Section 39(1) of the Federal Magistrates Act provides that if a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may by order transfer the proceeding from the Federal Magistrates Court to the Federal Court. Section 39(2) provides that the transfer may be effected on the application of a party or by the court on its own initiative.
Section 39(3) requires the Court, in deciding whether to transfer a proceeding to the Federal Court, to have regard to any rules of court made for the purpose of s.40(2), and whether proceedings in respect of an associated matter are pending in the Federal Court, whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceedings, and the interests of the administration of justice. Rules of court have been made in relation to transfer and they appear as part of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Those rules appear in part 8 of the Federal Magistrates Court Rules. Rule 8.02 provides that the Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court. Rule 8.02(4) provides that in addition to the factors required to be considered by the Court under s.39(3) of the Act relating to transfer, the following factors are relevant:
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 the Federal Court on one or more of the points in issue;
b)whether, if the proceeding is transferred, there 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 proceedings will be heard earlier in the Federal Magistrates Court;
d)the availability of particular procedures appropriate for the class of proceeding;
e)the wishes of the parties.
In this matter it is obvious that the proceeding would be resolved earlier in this Court than the Federal Court if heard by me today. However, it is also highly likely that the outcome of the proceeding in this Court would lead to an appeal to the Federal Court. The jurisdictional issues raised are important and of general application. They relate to the jurisdiction not only of this Court, but also to the jurisdiction of the Federal Court. This Court cannot bind the Federal Court by its decision. However, the Federal Court can bind this Court.
Given the likelihood of an appeal from any decision made by me and the importance of the jurisdictional issue, it is in my view preferable that the matter be transferred to the Federal Court in order for an authoritative decision to be made. I note, in that connection, in the matter of NAFZ v Minister for Immigration [2002] FCA 1291, on 22 October 2002, his Honour Gyles J dealt with the issue of notification of a decision to refuse a protection visa, subsequent to a decision on jurisdiction by the RRT. His Honour found that this was a privative clause decision and that given that the decision was made by the RRT purely as an issue of fact (of when the refusal decision was notified to the applicant) there was no basis for the decision to be reviewed by the Federal Court. At paragraph 17 his Honour said:
There is, however, an insuperable difficulty in the path of the applicant if it is correct that the decision here was a decision under the Act because that would carry the implication with it that it was a kind of decision in which the Act authorised the Tribunal to make. If that is the case then it is not possible to find any lack of jurisdiction for the Tribunal to do what it did. There was simply a factual decision within jurisdiction. That would provide no foundation for a claim that the Tribunal failed to comply within an inviolable statutory condition such as to arguably give rise to the relief based upon the decision in Wang. This leads to the practical effect that the Tribunal is able to make a decision as to the validity of an application to it and by reason of section 474, that decision cannot be challenged by the grant of mandamus or any other like relief.
His Honour dismissed the application before him with costs. Then he went on to say in paragraph 18:
It will be apparent from the foregoing in that in my opinion it is time for the Full Court to give these issues proper consideration. It seems to me that a questionable practice which was favourable to the position of applicants developed in this court and that has now come back to disadvantage applicants under the new regime.
His Honour was referring in particular to the question of whether the decision on jurisdiction made by the RRT was a decision made under the Migration Act and whether it was thereby a privative clause decision.
Given that his Honour felt that the issue when it arose subsequent to a decision by the RRT was an important issue meriting consideration by the Full Federal Court, it seems to me that the issue arising in these proceedings today is related and requires consideration by the Federal Court, and if the Chief Justice considers it appropriate, by the Full Federal Court. That would provide an opportunity to determine authoritatively what jurisdiction exists in this Court and the Federal Court to determine issues relating to the notification of primary decisions either before or after a decision is made by a review tribunal.
I will therefore transfer the matter to the Federal Court pursuant to s.39 of the Federal Magistrates Act.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 29 November 2002