CWW17 v Minister for Immigration

[2018] FCCA 582

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWW17 v MINISTER FOR IMMIGRATION [2018] FCCA 582

Catchwords:
MIGRATION – Application for judicial review of decision not to refer application for the exercise of the power conferred by s.48B of the Migration Act 1958 (Cth) (Act) to dispense with s.48A of the Act – whether decision not to refer is a “migration decision” within the meaning of s.476 of the Act – decision not a “migration decision” and, for that reason, the Court has no jurisdiction to determine application for judicial review of the decision.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Migration Act 1958 (Cth), ss.48A, 48B, 474, 474A, 476, 477

Cases cited:

AOA16 v Minister for Immigration and Border Protection [2017] FCA 6973

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31

Applicant: CWW17

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2058 of 2017

Judgment of: Judge Manousaridis

Hearing date: 22 February 2018

Date of Last Submission: 22 February 2018

Delivered at: Sydney

Delivered on: 22 February 2018

REPRESENTATION

No appearance by or on behalf of the applicant

Solicitors for the Respondent: Mr C Robertson of DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2058 of 2017

CWW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. Before the Court is an application purportedly pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) for an order extending the time provided for by s.477(1) of the Act for making an application for the granting of a remedy under s.476 of the Act. The application is directed to a decision (Decision) that was communicated to the applicant in a letter dated 6 April 2017 from the Department of Immigration and Border Protection (Department). 

2. The matter came before a Registrar on 28 September 2017 on a first court date.  On that day the Registrar made directions and ordered that the matter be listed for hearing as to the competency of the application before me on 22 February 2018 at 10.15 am, that is to say, today. At around 10.15 am, being the appointed time of the hearing, I was informed by my associate while I was in chambers that there was no sign of the applicant in the court precinct.  As is my usual practice, I decided to wait for 15 minutes before I came on the bench and had the matter called.  I came on the bench at 10.30 am.  The matter was called, and there was no appearance by or on behalf of the applicant.  In those circumstances Mr Robertson, who appears for the respondent (Minister) applied for an order for dismissing the application for non-appearance.

3. The powers that are available to this Court if a party to a proceeding is absent from the hearing are set out in r.13.03C of the Federal Circuit Court Rules 2001 (Cth). One of the powers available to the Court is simply to dismiss the application where the non-appearing party is the applicant to the proceeding. The Court, however, also has the power to proceed with the hearing generally or in relation to any claim for relief in the proceeding. In the circumstances of this case, I consider it would be appropriate that the matter proceed to a hearing.

4. The only material that was read into evidence was the affidavit the applicant filed at the time he filed his application in this Court. That affidavit simply attached a copy of the Decision which, as I have said, is contained in the letter dated 6 April 2017 from the Department. That letter refers to an application the applicant made under s.48B of the Act that the Minister determine that s.48A of the Act does not apply to prevent the applicant from making an application for a protection visa.

5. Subsection 48A(1) of the Act relevantly provides that:

   Subject to s.48B, a non-citizen who, while in the migration zone has made:

   (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

   (b) applications for protection visas where the grant of the visas have been refused (whether or not the applciations have been finally determined),

   may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf while the non-citizen is in the migration zone.

   There is no direct evidence that s.48A applies to the applicant. That the applicant, however, applied to the Minister under s.48B of the Act is a basis on which I readily infer that s.48A of the Act does apply to the applicant.

6. The Minister submits this Court does not have jurisdiction to entertain the applicant’s application for review because the effect of the Decision is that the applicant’s request for intervention under s.48B was not referred to the Minister for his consideration, and the Minister was under no legal duty to respond to a request made under s.48B. That means, so the Minister submits, that there was no “migration decision” within the meaning of s.476 of the Act. The Minister relies on the judgment of Pagone J in AOA16 v Minister for Immigration and Border Protection[1] which, in turn, relied on the High Court’s judgment in Plaintiff S10/2011 v Minister for Immigration and Citizenship.[2]

   [1] [2017] FCA 697

   [2] [2012] HCA 31, particularly [50] and [51]

7. I accept the Minister’s submissions. This Court’s jurisdiction in relation to matters arising under or in relation to the Act is conferred by s.476 of the Act. Subject to exceptions which it is unnecessary to set out here, the Court’s jurisdiction is limited to granting relief “in relation to migration decisions”. The expression “migration decision” is defined in s.5 of the Act to mean a “privative clause decision” or a “purported privative clause decision” or a “non-privative clause decision” or an “AAT Act migration decision”. These expressions, in turn, are defined in s.474(2), (3), (4) and (6), and s.474A of the Act respectively.

8. A “non-privative clause decision” is defined as a decision made under the provisions of the Act listed in s. 474(4) of the Act, and an “AAT Act migration decision” is defined in s. 474A as a decision made or a function exercised by the Administrative Appeals Tribunal, in relation to Part 5 or Part 7 reviewable decisions under the provisions of the Administrative Appeals Tribunal Act (1975) (Cth) specified in s.474A(c) of the Act; and a “privative clause decision” is defined in s.474(2) of the Act to mean:

   a decision of an administrative character made, proposed to be made, or required to be made, as the case may be under this Act or under a  regulation or other instrument made under this Act (whether in the exercise of a discretion or not) other than a decision referred to in subsection (4) and (5).

9. The question that arises is whether the Decision is a “migration decision” within the meaning of s.476 of the Act. It plainly is not a decision made or purported to be made under any of the provisions listed in s.474(4) of the Act, or a decision that is made by the Administrative Appeals Tribunal. Thus the decision is not a “non-privative clause decision” or an “AAT Act migration decision”. Nor can it be said that the Decision was made under s.48B of the Act because the power to make a decision under s.48B is reposed in the Minister, and the applicant’s request for intervention under section 48B was not referred to the Minister. Finally, it cannot be said that the Minister was required to make a decision under s.48B of the Act in response to the applicant’s request for intervention. That follows from Plaintiff S10/2011. As was noted by French CJ and Kiefel J (as her Honour then was),[3] the power conferred by s.48B of the Act is a dispensing power which imposes no duty on the Minister to respond to a request made under that section that he or she exercise that power. Thus the applicant’s request for Ministerial Intervention in the circumstances of this case did not give rise to circumstances in which a decision was required to be made under the Act.

   [3] [2012] HCA 31 , at[50] and [51]

10. For these reasons, I propose to order that the application be dismissed for want of jurisdiction in this Court.  The Minister also seeks an order for costs.  Costs should follow the event, and I propose to order costs.  The amount of costs the Minister seeks is $3,606, which is the scale amount.  I am satisfied it is appropriate that costs be set in the scale amount.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  14 March 2018