CLA15 v Minister for Home Affairs (No.2)

[2018] FCCA 1497

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLA15 v MINISTER FOR HOME AFFAIRS (No.2) [2018] FCCA 1497

Catchwords:
PRACTICE AND PROCEDURE – Whether the Court has jurisdiction to hear the matter – notice of objection of competency filed by the respondent – request for Ministerial Intervention finalised with no referral to respondent – letter does not contain a migration decision – no jurisdiction – application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), Part 6B Division 2

Migration Act 1958 (Cth), ss.48B, 476

Applicant: CLA15

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 1193 of 2018

Judgment of: Judge Street

Hearing date: 4 June 2018

Date of Last Submission: 4 June 2018

Delivered at: Sydney

Delivered on: 4 June 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent: Ms H Dejean
Australian Government Solicitor

ORDERS

1. The oral application for an adjournment is dismissed.

2. The application is dismissed.

3. The applicant pay the respondent’s costs fixed in the amount of $2,500.00.

4. Direct that any application in a case and affidavit evidence by the respondent under Part 6B of Division 2 of the Federal Circuit Court of Australia Act 1999 (Cth) be filed and served on or before 13 June 2018.

5. Direct the applicant to file and serve if there is such application, any affidavit and submissions in answer on or before 20 June 2018.

6. Any application under order 5 above will be made returnable for hearing at 2:15pm on 26 June 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1193 of 2018

CLA15

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced on 24 April 2018 seeking to challenge a decision of the respondent refusing to engage in consideration of an application for Ministerial Intervention. The letter was sent on the 5 April 2018 to the applicant, being a request that was finalised under s 48B of the Migration Act 1958 (Cth) (“the Act”). The letter was not a decision pursuant to s 48B of the Act and there was no migration decision within the Court’s jurisdiction under s 476 of the Act.

2. It is in general the first duty of any Court to ensure that its jurisdiction has been properly invoked. Following the commencement of the proceedings, on 18 May 2018, the respondent filed and served a notice of objection to competency that succinctly identified the grounds upon which this Court did not have jurisdiction. As a result of the filing of that notice, on 22 May 2018 this Court made orders expressly fixing the matter for determination of the issue of jurisdiction.

3. The Court also made orders permitting the applicant an opportunity to file any application the applicant wished to file. The applicant filed an affidavit and an application seeking to have the matter transferred to another docket as well as recusal order. The orders made on 22 May 2018 identify that any such application would also be heard and determined today.  The Court has earlier heard and rejected the application in a case filed on 1 June 2018.

4. The applicant identified that the basis upon which he asserted there was jurisdiction was because there had been an alleged denial of procedural fairness by the delegate. In the applicant’s submission, this did not address any basis upon which it could be said there was a “migration decision” under s 476 of the Act. The Court told the applicant that the issue in the present case was how this Court’s jurisdiction under s 476 of the Act could be said to be invoked in circumstances where there was no “migration decision”.

Oral application for an adjournment

1. The applicant then asserted that he was not prepared for today and that he had not had an opportunity to prepare. The notice of objection to competency clearly put the applicant on notice that these proceedings were ones in respect of which the issue was whether this Court had no jurisdiction. Moreover, the orders made by the court on 22 May 2018 were clear and unequivocal in identifying that the jurisdictional issue raised as a result of a notice of an objection to competency was to be heard today.

2. The applicant suggested that he was not in a position to deal with the matter, albeit the applicant sought to rely upon the submissions he had identified in his application in a case. It is apparent that the applicant was well aware of the nature of the orders that were made and was well aware that the matter was listed for hearing. I do not accept that any proper basis has been made out why the matter should be adjourned. I am not satisfied that an adjournment is warranted in the interests of the administration of justice.

3. Further, the proceedings are ones in respect of which it is apparent they are doomed to failure. These proceedings were ones in respect of which the Court does not have jurisdiction. To bring proceedings before the Court in circumstances where they are doomed to failure is in essence, to bring vexatious proceedings. On their face, these proceedings were vexatious and this is a further reason why an adjournment is not warranted.

Conclusion

1. No jurisdiction of the Court has been properly invoked. This Court has no jurisdiction to consider the letter dated 5 April 2018. The application is dismissed.

2. The Court is however, concerned that the applicant has brought proceedings before this Court which on their face, were vexatious. The Court will consider whether or not an order ought to be made giving the applicant an opportunity to be heard in respect of any application under Part 6B Division 2 of the Federal Circuit Court of Australia Act 1999 (Cth) in respect of any other proceedings currently on foot or to be commenced by the applicant.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  7 September 2018