DVY17 v Minister for Immigration
[2018] FCCA 3239
•12 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DVY17 v MINISTER FOR IMMIGRATION | [2018] FCCA 3239 |
| Catchwords: MIGRATION – Application purportedly made pursuant to s.487ZK(1) of the Act – notice of objection to competency – whether the Court has jurisdiction – meaning of institutes proceedings – whether the application was made within the prescribed time limit – application of the Rules of the Court with regard to filing of applications – notice of objection to competency upheld – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.36 Migration Act 1958 (Cth), ss.5, 474, 476, 477, 487ZI, 487ZJ, 487ZK Vexatious Proceedings Act 2008 (NSW), ss.4, 5 |
| Cases cited: Potier v Attorney General [2015] NSWCA 129 |
| Applicant: | DVY17 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2250 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 1 May 2018 |
| Date of Last Submission: | 1 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | M Mando by direct access |
| Counsel for the Respondent: | B D Kaplan |
| Solicitors for the Respondent: | HWL Ebsworth Lawyers |
ORDERS
The Notice of Objection to Competency filed on 7 November 2017 is upheld.
The substantive application is dismissed.
The applicant pay the respondent’s costs as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2250 of 2017
| DVY17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
By a Notice of Objection to Competency (“NOC”) filed in these proceedings on 7 November 2017, the Minister objects to the competency of an application made by the applicant on 14 July 2017, purportedly made pursuant to s.487ZK(1) of the Migration Act 1958 (Cth) (“the Act”) (see further below on the Court’s jurisdiction).
The evidence before the Court is as follows:
a)The affidavit of the applicant made on 11 April 2018. The Minister objected to [6] (save for the part of [6] that refers to pages 113 to 185 of exhibit “MD1”), [8] and [10] on the basis of relevance, and to [9] on the basis of relevance and that it is argumentative. The applicant did not press these paragraphs so far as they related to the hearing of the NOC, and on the basis that the question of their admissibility would be revisited in the consideration of the substantive application (depending on the outcome of the NOC).
b)The applicant tendered page 116 of exhibit “MD1” to the applicant’s affidavit of 11 April 2018, being the “e-lodgment page” relating to the electronic filing of the substantive application with the Court’s registry (“AE1”).
c)The applicant tendered a document with a screen shot of the applicant’s credit card payment in relation to the filing of the substantive application with the Court’s registry (“AE2”).
d)The examination in chief of the applicant’s former solicitor, Mr George Hanna (the Minister did not cross-examine Mr Hanna).
Background
The background to the substantive application is as follows. The applicant claimed to be a citizen of the Republic of Iraq. He arrived in Australia on 23 May 2013 as an unauthorised maritime arrival. After the Minister “lifted the bar” in s.46A of the Act, the applicant applied for a Safe Haven Enterprise visa (“SHEV”) on 28 July 2016 (pp.119 – 185 of exhibit “MD1” to the applicant’s affidavit).
The applicant provided the Minister’s department with a Republic of Iraq identity card (“the identity card”) in support of his visa application on 1 March 2017 (see pp. 1-2, 18 – 20 of exhibit “MD1” to the applicant’s affidavit).
On 13 April 2017, the applicant was given notice that the identity card had been seized pursuant to s.487ZJ(1) of the Act, on the basis that an officer of the Minister’s department “reasonably suspect[ed]” that the document was forfeited under s.487ZI(2) of the Act, as the document was a “bogus document” (as that term is defined in s.5(1) of the Act) which had been provided to the Minister’s department in contravention of s.487ZI(1) of the Act (see pp.1 – 8 of exhibit “MD1” to the applicant’s affidavit).
The applicant then filed an application to the Court (see further below). The grounds of the application are as follows:
“1. On 1 March 2017, the Applicant provided a Republic of Iraq Identity card numbered 00472233 (hereinafter referred to as "document'') to officer and/or agent of the Respondent in respect to a Safe Haven Enterprises (subclass 790) visa application lodged with the Respondent.
2. On 13 April 2017, a decision was made by officer and/or agent of the Respondent under subsection 487ZJ(1) of the Migration Act 1958 (Cth) to seize the document on the suspicion that the document was a 'bogus document' as defined in subsection 5(1) of the Migration Act 1958 (Cth), being a document that is counterfeit. A notice of seizure of bogus documents was subsequently issued to the Applicant under subsection 487ZJ(2) of the Migration Act 1958 (Cth).
3. The Applicant now relies upon subsection 487ZK(4)(b) of the Migration Act 1958 (Cth) to seek a declaration be made by this Court that the document is not forfeited.
Particulars
(a) The Applicant made a claim that the document is neither bogus and/or counterfeit and the Respondent through its officer and/or agent has no grounds to seize the document.
(b) There is no conclusive determination by a Court of competent jurisdiction that the document is in fact "bogus".
(c) It is in the interests of justice and fairness that the Applicant being the legal tittle holder to the document be restored to physical possession of the document.”
[Errors in original.]
Before the Court
At the time of filing his application to the Court, the applicant was represented by a solicitor. However, there was no appearance by, or on behalf of the applicant at the directions hearing before the Court on 16 August 2017. The Minister was represented by a solicitor on this day. The directions hearing was adjourned until 18 August 2017.
On that day, a solicitor appeared on behalf of the applicant. He was unable to explain the non-attendance at the previous directions hearing. The Minister sought costs in relation to that directions hearing. The hearing of that costs application was adjourned to 1 November 2017. Orders were also made for the progress of the matter, including that the applicant file and serve written submissions on whether this was a “Court of competent jurisdiction” for the purposes of s.487ZK of the Act and the Minister file and serve written submissions in reply. The “timetable” set out in these orders was later amended by orders made, by consent, on 25 October 2017.
Neither party filed submissions pursuant to those orders. The Minister filed the NOC on 7 November 2017.
The next directions hearing was adjourned, at the parties’ request, to 15 December 2017. Both parties were represented by solicitors on this day. They asked that the matter be further adjourned to 7 February 2018 to allow for the applicant to confirm some “outstanding matters” with the Minister’s department, which may have impacted in some way on the progression of these proceedings.
On 19 January 2018, the applicant’s former solicitor filed a Notice of Intention to Withdraw as Lawyer. On 1 February 2018, the applicant’s former solicitor filed a Notice of Withdrawal of Lawyer.
On 7 February 2018, the parties appeared before the Court for directions. The applicant appeared in person and the Minister was represented by a solicitor. Orders were made for the parties to file written submissions on the Minister’s NOC and the NOC was set down for hearing on 1 May 2018. The Minister filed written submissions on 15 March 2018 and the applicant filed written submissions on 11 April 2018.
The matter of the Minister’s application for costs of the directions hearing on 16 August 2017 was also adjourned to 1 May 2018, however, no submissions were made by either party on this matter.
At the hearing of the NOC, the Minister was represented by counsel. The applicant was also represented by counsel, was appeared on a direct access basis.
Relevant Legislation
Section 487ZJ of the Act relevantly provides:
“487ZJ Seizure of bogus documents
(1) If an officer reasonably suspects that a document is forfeited under subsection 487ZI(2), then the officer may seize the document.
(2) As soon as practicable after seizing the document, the officer must give written notice of the seizure to the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1).
(3) The notice must:
(a) identify the document; and
(b) state that the document has been seized; and
(c) specify the reason for the seizure; and
(d) state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice:
(i) to recover the document; or
(ii) for a declaration that the document is not forfeited.
(4) For the purposes of paragraph (3)(d), the period must:
(a) start on the date of the notice; and
(b) end 90 days after that date.”
Section 487ZI of the Act relevantly provides:
“487ZI Prohibition on, and forfeiture of, bogus documents
(1) A person (whether a citizen or non-citizen) must not give, present, produce or provide a bogus document to an officer, an authorised system, the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the official), or cause such a document to be so given, presented, produced or provided.
(2) A bogus document given, presented, produced or provided in contravention of subsection (1) is forfeited to the Commonwealth.”
Section 5(1) of the Act defines “bogus documents” as follows:
“’bogus document’, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.”
Section 487ZK of the Act is in the following terms.
“487ZK Document condemned as forfeited
(1) If a document is seized under subsection 487ZJ(1), then:
(a) the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1); and
(b) if that person is not the owner of the document--the owner;
may, subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction:
(c) to recover the document; or
(d) for a declaration that the document is not forfeited.
(2) The proceedings:
(a) may be instituted even if the seizure notice required to be given under subsection 487ZJ(2) in relation to the document has not yet been given; and
(b) may only be instituted before the end of the period specified in the seizure notice.
(3) If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period.
(4) If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is:
(a) an order for the person or owner to recover the document; or
(b) a declaration that the document is not forfeited.
(5) For the purposes of subsection (4), if the proceedings go to judgment, they end:
(a) if no appeal against the judgment is lodged within the period for lodging such an appeal--at the end of that period; or
(b) if an appeal against the judgment is lodged within that period--when the appeal lapses or is finally determined.”
Section 477 of the Act is in the following terms:
“477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
‘date of the migration decision’ means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or
(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5--the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca) in the case of a migration decision made by the Immigration Assessment Authority--the date of the written statement under subsection 473EA(1); or
(d) in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”
Consideration
The grounds of the Minister’s NOC are as follows:
“1. By application filed on 14 July 2017, the applicant seeks orders that the decision of the respondent be quashed, a writ of mandamus directed to the respondent, and a declaration that his Republic of Iraq identity card not be forfeited.
2. In so far as the proceeding is characterised as an application for orders in the nature of constitutional writs with respect to a 'migration decision' or 'migration decisions', as defined (section 5 of the Migration Act 1958 (Cth) (the Act)) the Federal Circuit Court has jurisdiction pursuant to section 476 of the Act. However pursuant to section 477 of the Act, an application for review to the Federal Circuit Court was required to be lodged within 35 days of the date of the decision, that being 35 days from 13 April 2017. The application filed on 14 July 2017 was not lodged within 35 days of the date of the decision.
3. This Honourable Court has jurisdiction to extend the time period in section 476, pursuant to section 477. However it is a prerequisite to the Court's exercise of jurisdiction to extend time that an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order: section 477(2)(a). The application, filed on 14 July 2017, does not seek an order extending time for commencing proceedings. The respondent objects to the competency of the application, accordingly.
4. Further, the present proceeding is incompetent for the reason that the applicant did not file the application before the end of the period specified in sections 487ZJ(3)(d) and (4), that is, within 90 days of the date of the ‘Notice of seizure of bogus documents’.”
Broadly, the Minister objected to the competency of the application on two bases. One, the applicant applied for a declaration from this Court that the identity card was not forfeited. That application was made outside the time required by the Act for the making of such applications, and is not subject to any consideration for an extension of time (see s.487ZJ(3)(d) of the Act, s.487ZJ(4) of the Act and s.487ZK(2)(b) of the Act).
Two, the application also, in essence, raised the question of judicial review of the decision to seize the identity card. Section 477(1) of the Act requires that an application seeking review of a “migration decision” be made within 35 days of the date of the decision. In the current case, the application was not made within that time. Further, no application to extend time pursuant to s.477(2)(a) of the Act has been made by the applicant, such as to enliven the question of the exercise of the Court’s discretion pursuant to s.477(2) of the Act to extend time.
The parties broadly agreed on the relevant statutory regime other than for two important matters. The first matter concerns the meaning of the words “institute proceedings” as they appear in s.487ZK and s.487ZJ of the Act. The second matter is regarding the relevance of s.477 of the Act in the circumstances of this case.
In the grounds of the substantive application to the Court, the applicant pleads that on 1 March 2017, he provided the identity card to an officer of the Minister’s department.
He then pleads that on 13 April 2017, an officer of the Minister’s department made a “decision” (this was the word used on the application document) to seize the identity card on suspicion that it was a “bogus document” as that term is defined in s.5(1) of the Act. A notice of seizure was issued to the applicant on 13 April 2017 (“the notice”) (see pp.1-2 of exhibit “MD1” of the applicant’s affidavit).
The Minister does not dispute that these events occurred. In the context of the Minister’s NOC, these facts immediately direct attention to Division 1 of Part 9 of the Act.
The officer of the Minister’s department proceeded pursuant to s.487ZJ(1) of the Act (“seize the document”) and s.487ZJ(2) of the Act (“give written notice of the seizure”).
For current purposes, the applicant does not dispute that the notice complied with the requirements of s.487ZJ of the Act, and in particular, the requirement of s.487ZJ(3)(d) of the Act. That is, that the applicant was given notice (in the notice of seizure dated 13 April 2017) that the identity card would be “condemned as forfeited” unless the applicant “institutes proceedings against the Commonwealth before the end of the period specified in the notice”. That period is as set out at s.487ZJ(4) of the Act.
The Minister’s NOC is based on the proposition that the relevant proceedings were instituted after the period set out in the notice, and as specified in s.487ZJ(4) of the Act. The applicant argued it was made within that period. The dispute between the parties centred on the meaning of the words “institute proceedings” as they appear in s.487ZK of the Act (and see also the reference to “institutes proceedings” at s.487ZJ(3)(d) of the Act).
The following facts emerge from the evidence in this matter. Neither party disputes these facts:
a)One, the applicant gave the identity card to an officer of the Minister’s department on 1 March 2017.
b)Two, a “decision” was made to seize the identity card pursuant to s.487ZJ(1) of the Act on the basis that an officer of the Minister’s department had a reasonable suspicion that the document was forfeited under s.487ZI(2) of the Act for being a “bogus document”(as that term is defined in s.5(1) of the Act).
c)Three, a notice of seizure was issued to the applicant on 13 April 2017.
d)Four, the notice complied with all of the relevant statutory requirements.
e)Five, on 11 July 2017 at 4:38 pm, the applicant’s then legal representative electronically transmitted, or sent, the substantive application to the Court’s registry.
I note further that the Court’s records reveal that the application was “lodged electronically” on 14 July 2017 for filing (see further below).
There was no dispute that the date of the notice was 13 April 2017. There was some exchange before the Court as to when the relevant 90 day period was said to commence, with reference to 13 April 2017 and s.487ZJ(4)(a) and (b) of the Act.
The importance of this is that proceedings instituted within the 90 day period specified in s.487ZJ(4) of the Act, and in the notice, would render the substantive application competent. It would not be competent after that time.
One exchange before the Court centred on the seeming contradiction in s.487ZJ(4) of the Act between: “the period must…start on the date of the notice” (s.487ZJ(4)(a) of the Act) and: “end 90 days after that date” (s.487ZJ(4)(b) of the Act). That is, is the first day of the 90 day period the date of the notice, or is it the day after that date, such as to comply with s.487ZJ(4)(b) of the Act: “end 90 days after that date”. That date being 90 days “after” the date of the notice.
The matter is resolved with reference to the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”). Section 36(1) of the Acts Interpretation Act provides prescription for the calculation of time in relevantly, the Act. At item two, of column one, of the table set out at s.36(1) of the Acts Interpretation Act, the phrase “begin at, on or with a specified day” is said, by virtue of item two of column two, to “include[s] that day”.
The word “start” as it appears at s.487ZJ(4)(a) of the Act is, in context, indistinguishable in meaning from the word “begin”. In that light, for the purposes of s.487ZJ(4)(a) of the Act, the “start” of the 90 day period is the date of the notice. For current purposes, that is 13 April 2017. The notice period ends 90 days after, which includes the 90th day (see item four, column one, of the table at s.36(1) of the Acts Interpretation Act when read with the item four, column two, of the table at s.36(1) of the Acts Interpretation Act).
In the current case therefore, the 90 day period ended on 11 July 2017. In his argument before the Court, the applicant appeared to proceed on this basis.
As noted above, the dispute between the parties arose in relation to the meaning of the words “institute proceedings”, or “institutes proceedings”, as they appear in s.487ZK of the Act, and in s.487ZJ of the Act.
The words “institute proceedings” are not defined in the Act, or for that matter, the Acts Interpretation Act. Before the Court, the Minister argued that the words are given meaning by the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), or rather, the Minister argued that it is to the FCC Rules (in the absence of any other legislative definition) that regard must be had as to the question of when the proceedings in the current case can be said to have been “instituted”.
Division 2.2 of Part 2 of the FCC Rules is concerned with the filing of documents in this Court. Rule 2.05(1) of the FCC Rules permits documents to be filed electronically.
Rule 2.05(2) and (3) of the FCC Rules are in the following terms:
“2.05 How documents may be filed
…
(2) A document is filed when it is accepted for filing by a Registrar and sealed with the seal of the Court or marked with a Court stamp, as required by Division 2.4.
Note: For the design, custody and affixation of the seal and validity of stamps: see sections 47 and 48 of the Act.
(3) However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:
(a) if the whole document is received by 4.30 pm on a day the Registry is open for business--on that day; and
(b) in any other case--on the next day the Registry is open for business.
Note: Because of the Court's computer security firewall, there may be a delay between the time a document is sent by electronic communication and the time the document is filed”
[Emphasis added.]
The Minister’s argument was that a document sent electronically to the Court (as in the current case) is taken to have been filed, if received before 4:30 pm on a day that the Court’s registry is open for business, on that day. However, if (as in this case) it is received after 4.30 pm on a day that the Court’s registry is open for business, then it is taken to have been received the following day that the Court’s registry is open for business.
The Minister emphasised that the “note” beneath r.2.05(3) of the FCC Rules is instructive for the current case. That is, the note that there may be a “delay” between the sending of a document by electronic communication and the time the document is “filed”.
Further, r.2.05(3) of the FCC Rules differentiates between when a document is “sent” (by electronic means), and when it is “received”.
The Minister’s submission, when applying this rule to the facts of this case, was as follows. For the purposes of r.2.05(3) of the FCC Rules, the substantive application in this case (“the application document”) was received by the Court’s registry at 12.27 pm on 14 July 2017 (see the “Notice of Filing and Hearing” which is the first page of the application document (as inserted by the Court’s registry) and with reference to r.2.07B of the FCC Rules).
The Minister argued that on the evidence, and pursuant to r.2.05(2) of the FCC Rules, the substantive application was “commenced” on 18 July 2017 at 11:30am. However, given r.2.05(3) of the FCC Rules (dealing with electronic transmission and filing), the application document was taken to have been received by the Court’s registry on 14 July 2017 at 11:02 am, and upon that receipt, was filed. At that point, the proceedings were “instituted” in this Court.
Pursuant to the FCC Rules (see r.2.05(3) of the FCC Rules), the day of the lodging of a document (if the document is lodged before 4:30 pm), is the day of filing. If that is on a business day, and it was received after 4:30 pm, then it is “filed” the next day.
The Minister’s submission was that the applicant’s evidence, and his argument before the Court, was focused on when the application document was sent for filing, rather than when it was received for filing by the Court’s registry. Therefore, in the Minister’s submission, even though the applicant’s evidence is that the application document was sent electronically on 11 July 2017 at 4:38 pm, it was not received and accepted for filing (in circumstances where the FCC Rules contemplate a delay) until, “at best” (for the applicant), 12 July 2017, and most probably 14 July 2017 which is the date applied by the Court’s registry on the “Notice of Filing and Hearing” as the day of filing.
Therefore, given that the 90 day period for the time within which to institute proceedings, as stipulated in s.487ZJ(4) of the Act, ended on 11 July 2017, the proceedings in the current case were not instituted within that time, and are therefore not competent.
Nor, given the words “may only be instituted”, as they appear at s.487ZK(2)(b) of the Act, could that be extended.
The applicant was not able to refer to any definition of the term “institute proceedings” in the Act, the Acts Interpretation Act, or any other statute. Nor did the applicant refer to any case authority (see further below). Nor did the applicant satisfactorily engage with the Minister’s argument as to the application of the FCC Rules to the facts of this case.
I pause to note that the term “institute proceedings” was the subject of consideration by the Supreme Court of New South Wales, Court of Appeal in Potier v Attorney General [2015] NSWCA 129 (“Potier”). However, that consideration was in the context of the Vexatious Proceedings Act 2008 (NSW) which defined both the words “institute” and “proceedings” in s.4 and s.5 of that Act (see Potier at [67]). That is plainly distinguishable from the current case where no such definitions are found in the Act. The Court’s consideration in that case, in my respectful view, emanated, or was shaped by, those definitions in the relevant statute. In that light, that consideration does not advance the applicant’s case in the current proceedings. Again, I note no submissions were made by the parties on any consideration of the term “institute proceedings” in Potier, or any other case.
Before the Court, both parties made submissions about the notification placed by the Court’s registry on the “Notice of Filing and Hearing” (which forms a part of the application document). The notation, relevantly, is:
“This document was lodged electronically in the FEDERAL CIRCUIT COURT OF AUSTRALIA (FCC) on 14/07/2017, 12:27:58 PM AEST and has been accepted for filing under the Court’s rules...”
The applicant’s argument is that even if the FCC Rules were to be applied to the circumstances of this case (which he otherwise was not clear that they should be in the circumstances presented), then the notification (as extracted above) “misrepresents” the relevant rule (r.2.05(3) of the FCC Rules) because that rule refers to when a document is “received”. Therefore, the reference to “lodged” is not consistent with that rule.
In short, the applicant’s position in response to the Minister’s argument on this point, was that that note was “erroneous” because it “misrepresents” r.2.05(3) of the FCC Rules, and relevant to the circumstances of the current case, the application was “lodged” on 11 July 2017.
In his submissions, the applicant equated the electronic transmission of the application document with the concept of “lodgement”, and with the “filing” of the document. This argument was that “lodgment is a different concept to receiving”. The applicant’s argument was that the application was “lodged” on 11 July 2017. Because it was subsequently accepted for filing, there is no reason it should not be taken to have been filed, and the proceedings “instituted” on 11 July 2017.
It is important to remember that the key concept arising from the relevant legislation is that of “institute proceedings”.
The applicant’s central argument in the current case is that, the proceedings were instituted when the application document was sent, electronically, to the Court’s registry. The height of the applicant’s explanation of this is that the term “institution of proceedings” involves an applicant “taking action” or when an applicant “moves forward” against another party. Therefore, in the current case, the applicant (through his then solicitor) instituted the proceedings on 11 July 2017 when the solicitor took action against the Minister by sending, by electronic means, the application document to the Court’s registry.
Further, even in the context of the FCC Rules, he took that step when the solicitor “lodged” the application document by using the Court’s electronic filing portal. Thus, the application was “instituted” within the prescribed 90 day period.
I do not agree with the applicant’s submission.
First, the applicant’s submission that the words “instituted the proceeding” implies that a party has taken some action must, obviously, be accepted. However, what the applicant’s submission does not do is satisfactorily explain how that proposition provides a complete, or full, answer to the Minister’s argument as to his objection to competency in this case. In particular, as to how that “action”, in all the circumstances, constitutes, of itself, the institution of the proceedings for the purposes of s.487ZK of the Act.
What the applicant’s argument has failed to understand, and to address, is that the term “proceeding” can only be given relevant meaning in context. The focus on the words “institute proceedings” to mean only “the first step” (taken by the applicant’s then solicitor) ignores that the initiating of a proceeding does not, and cannot, occur in a vacuum.
In the current case, as the Act makes clear, if a document is seized under s.487ZJ(1) of the Act, the “owner” (in this case the applicant) may “institute proceedings”, but this is to be done “in a Court of competent jurisdiction” (s.487ZK(1)(b) of the Act). The references to “instituted” or “not institute” (as they appear in s.487ZK of the Act) and “institutes proceedings” (as it appears in s.487ZJ of the Act), must be read in that light.
Second, while there are a number of different ordinary meanings of the word “proceeding” (for example, “onward movement; conduct, behaviour”, “the fact or manner of taking legal action; a legal action; an act done by authority of a court of law; a step taken by a party in a case” (Shorter Oxford Dictionary, 6th edition, 2007), “a step taken by a party in a case” appears closest to the current applicable meaning, given the context of this case.
While the applicant’s former solicitor may have taken a “step” by electronically transmitting the application to the Court’s registry, it cannot be said to be a “step taken in a case” until a “case” can be said to exist.
To attain that latter character, the institution of a proceeding must involve the commencement of an action in a Court. I note that traditionally, the term “proceeding” was interpreted to mean: “the invocation of jurisdiction of a Court…” (Herbert Berry Associates Limited v Inland Revenue Commissioners [1977] 1 WLR 1437 at 1446).
At the very least therefore, even on the ordinary, or usual, meaning of the term, as contended for by the applicant now, the first “step” of the transmission of the application, cannot be said of, and by, itself, to invoke the jurisdiction of the Court. That invocation can only occur when the application document is accepted by the Court’s registry and taken to have been filed in the Court. It is at that point that the proceeding can be said to have been instituted.
The Court’s own processes and requirements cannot be ignored. To reduce it to its simplest form, the applicant may seek to invoke the jurisdiction of the Court by sending, or electronically transmitting, a document. However, it is only on acceptance by the Court that it can be said that the proceedings have been instituted.
To argue otherwise, as the applicant’s argument intends, or implies, would lead to some curious results. For example, if a person, say, were to post a hard copy of an application to the Court’s registry, but with some error in the postal address, and it is returned to that person, it cannot be said that any proceeding has been instituted. A further example. If a solicitor drafts an application and commences the process to electronically transmit the application. If that transmission is delayed, say by some malfunction or power outage, or misdirected because of some error in the address, it cannot be said that the proceedings were instituted at the time the solicitor commenced the process of transmission.
That is, the sending of a document may be seen as a “first step” in the process of commencing the institution of the proceedings, but the proceedings are actually only instituted when the “second” step of receipt and acceptance by the Court’s registry has taken place.
The purpose of the above examples (though somewhat different to the factual scenario currently before the Court), is to emphasise the distinction between the mere act of sending, or commencing to send, or transmitting a document, and completion of the process of instituting the proceeding through the acceptance by the Court, of an application which seeks to invoke its jurisdiction.
Third, in the current case there is a clear legislative basis for how the completion of the process of instituting a proceeding is to be successfully effected.
Section 81 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”) provides that Rules of Court may be made “with respect to the practice and procedure in particular matters” (s.81(2) of the FCCA Act).
Commencing, or instituting, a proceeding in this Court is governed by the FCC Rules, given that such action is part of the practice and procedure of the Court.
Rule 1.07 of the FCC Rules provides that a “person who wants to start a proceeding” may apply to this Court for an order about the procedure to be followed if:
“(a) the procedure is not prescribed by the Act, these Rules or by or under any other Act; or
b) the person is in doubt about the procedure.”
For current purposes, what arises from this is that the FCC Rules do contemplate, amongst other things, that the “starting” or the “initiation” of proceedings is a matter for relevantly, the Rules of this Court.
The FCC Rules establish the procedural requirements for documents that are to be “filed” with the Court as a part of the practice of this Court (r.2.01 of the FCC Rules).
Division 2.2 of Part 2 of the FCC Rules set out the practice and procedure for the filing of documents.
As set out above, such filing may be done by electronic communication (r.2.05(1)(c) of the FCC Rules). The “note” to r.2.05(1) of the FCC Rules makes clear that “a document may not be filed in a registry of the Court unless the fee payable for the filing has been paid…”. In my view, this lends weight to the view I have set out above as to the relevant elements in “instituting” a proceeding. It is clear that more than just the “first step” taken by the applicant (in this case, the electronic transmission of his application) is required for proceedings to be considered to have been “instituted”.
That is, the transmission of a document said to be an application seeking to invoke the jurisdiction of this Court, also contemplates at least another element before it can be said to have been accepted for filing.
Rule 2.05(2) of the FCC Rules makes clear the need for “acceptance” for filing by a Registrar of the Court.
Rule 2.05(3) of the FCC Rules, on which the Minister relied emphasises the distinction between each of the elements of an electronic communication, and in particular and relevantly, the acceptance for filing by a Registrar, and the concept of “filing” (r.2.05(3) of the FCC Rules):
Similarly, and as a further example, r.2.06(c) of the FCC Rules provides:
“2.06 A Registrar may refuse to accept a document for filing if:
…
(c) the rules relating to the electronic filing of documents have not been complied with.”
On the evidence, and the information before the Court, there are three possible relevant dates regarding the possible institution of proceedings in this case. These are 11 July 2017 (the date the applicant says he “lodged” the application document, 14 July 2017 (the date on the top of the “Notice of Filing and Hearing” as applied by the Court’s registry) and 18 July 2017 (the date just above the heading: “Important Information” on the: “Notice of Filing and Hearing”, as applied by the Court’s registry).
In the context of the FCC Rules, these dates can be explained as follows. On 11 July 2017, the applicant’s solicitor sought to send the application document to the Court’s registry. On 14 July 2017, after a “delay” due to the Court’s “computer firewall”, or due to payment of any application fee (as contemplated in the FCC Rules in relation to documents that are electronically transmitted), the application document reached the Court’s registry. On 18 July 2017, the “Notice of Filing and Hearing” required by the FCC Rules was created by the Court’s registry.
While there were some alternatives put by the Minister as to when the application document in the current case can be said to have been “filed” (that is, to institute the proceedings) at best, on the applicant’s evidence, and for the applicant, the following can be said.
The applicant’s then solicitor did act to electronically submit the application document seeking to invoke this Court’s jurisdiction pursuant to s.487ZK(1) of the Act.
That step was taken on 11 July 2017. Ninety days from (including the first day) the date of the relevant decision (13 April 2017) was 11 July 2017.
That is the date by which the applicant was required, by s.487ZJ(4) of the Act, to have instituted proceedings for the purposes of s.487ZK of the Act.
However, as set out above, r.2.05(3) of the FCC Rules (see [41] above), which deals specifically with the practice and procedure of this Court as to how documents may be filed electronically, and thereby constitute the process of instituting proceedings electronically, provides that a document, if accepted for filing, is taken to have been filed on that day, “if the whole of the document is received by 4:30 pm on the day the Registry is open for business”. For current purposes, there was no dispute that the Court’s registry was open for business on that day (see further below).
However, as set out above, under the FCC Rules the commencement of the act of transmission is not sufficient such as to say that that act, of itself, constitutes the institution of the proceedings in the Court.
Further, “lodging” a document is also not a sufficient “step” in the institution of proceedings. As the FCC Rules make clear, what is also required is that a document (in this case the application document) has been “accepted for filing”.
A part of the application document now before the Court is the “Notice of Filing and Hearing” inserted as the first page of the document. As set out above, that “Notice” was “inserted” on 18 July 2017.
However, what is important for current purposes is what appears at the top of that “Notice” (see [53] above). It is as at 14 July 2017 (at “12:27:58 PM” that the application document which the applicant’s former solicitor caused to be electronically transmitted to the Court’s registry on 11 July 2017, was received (by the act of “lodgement”) by the Court’s registry, and also, importantly, was accepted for filing at that time.
It is with the relevant compliance with the FCC Rules that the application document can be said to have sought to invoke the jurisdiction of the Court and thereby, at that point, the proceedings have been instituted.
Therefore, on what is before the Court, the proceedings currently under consideration were instituted on 14 July 2017. This is after the expiry of the 90 day period set out in s.487ZK(4) of the Act (11 July 2017). The application to the Court is not competent for that reason.
As set out above, in his submissions, the Minister raised the possibility that 18 July 2017 may be seen as the relevant date when the proceedings were instituted. In my view, that date is when the Court’s registry “inserted” the “Notice of Filing and Hearing” in the application document, as required by the FCC Rules.
By 18 July 2017, as is otherwise indicated by the contents of that “Notice”, the requirements under the FCC Rules for lodging the application document electronically, and the acceptance of that document for filing, occurred on 14 July 2017. That latter date is the date of the “institution” of the proceedings.
As set out above, the applicant argues that the date on which the proceedings were instituted was 11 July 2017. That is because that was the date the applicant’s then solicitor electronically transmitted the application document to the Court.
However, on the evidence, the application document was not received, nor could it have been so received, “by 4:30 pm” on 11 July 2017. This is because, on the evidence, it was transmitted to the Court’s registry at 4:38 pm. That is, after 4:30 pm on that day (11 July 2017).
In that light, given that fact, the electronic communication did not fall within the circumstance contemplated r.2.05(3)(a) of the FCC Rules and therefore enlivens r.2.05(3)(b) of the FCC Rules. The application document is therefore taken to have been filed on the “next day”, being a day the Court’s registry “is open for business” (r.2.05(3)(b) of the FCC Rules) (12 July 2017). That is, the document was filed on the day after the expiry of the 90 day period in circumstances where the Act does not contemplate any extension of that period. Even on the very best view of the circumstances before the Court for the applicant, the application to the Court cannot be said to be competent.
On one view, it may be said that this outcome is “harsh” in circumstances where the applicant’s then solicitor attempted to file the application document only eight minutes late. There are several points to note in this regard. First, and importantly, I note that even if any “harshness” is said to arise, this Court could not assist the applicant in circumstances where the legislation and the Rules of Court are clear.
Second, the fact is that it is certainly the case that the electronic filing of documents in the Court’s registry promotes efficiency in the conduct of litigation. If nothing else, electronic filing provides a comparative convenience access, than physical filing.
Nonetheless, an illustrative comparison may be drawn between the filing of a document after business hours and a person physically arriving at the Court’s registry after business hours, and finding it closed for business.
In a sense, that is what has happened in this case. It can only be presumed, in the absence of evidence to the contrary, that the applicant’s former solicitor (as a legal practitioner) would have known, or would have acquainted himself with, the rules relevant to this Court’s practices and procedures for the filing of documents when he sought to institute proceedings in this Court.
In my view, the question of “harshness” does not arise in circumstances where the applicant’s former solicitor should have known that by 4:30pm on 11 July 2017, the applicant was unable to institute the proceedings he then sought to institute.
In any event, it must also not be forgotten that the applicant’s former solicitor had nearly three months from the date of the notice to institute the proceedings. Why he waited until the final day to attempt to do so remains unexplained. The Parliament had clearly provided a “fair” and reasonable period within which applicants can institute proceedings. Ultimately, it was the applicant’s (and his then solicitor’s) conduct, not the Minister’s, that led to the attempt to electronically submit the application at 4:38 pm on 11 July 2017.
As set out above, s.487ZK(2)(b) of the Act makes clear, and in the absence of anything to the contrary in the Act, that the 90 day period cannot be extended either by the Minister, or by the Court. In all, even on the applicant’s own scenario as to relevant events, the application is not competent for the reasons set out above.
Third, a question that arises in the circumstances of this case, as presented by the applicant. That is, the matter of s.477 of the Act. The applicant chose to argue that the “decision” or “decisions” of the officer pursuant to s.487ZI and s.487ZJ of the Act (as referred to above) was not a “decision” under the Act, and therefore he did not apply for an extension of time pursuant to s.477(2) of the Act so as to seek to be able to put his complaint before the Court in that fashion.
The Minister’s position on this matter was clear. Section 476 of the Act vests jurisdiction in this Court in relation to a “migration decision”. Having regard to the definition of that term in s.5(1), of the Act, the terms of s.476(2) of the Act, and to s.474(2) of the Act, a “decision” includes a reference to “retaining, or refusing to deliver up, an article” (s.474(3)(f) of the Act) and “doing or refusing to do any other act or thing” (s.474(3)(g) of the Act).
In all, the Minister’s position was that it appears that the decision to determine that the identity card was a bogus document, and the decision to seize the identity card (and possibly to retain it) were decisions under the Act, and were amenable to an application to this Court pursuant to s.476 of the Act.
Of course, such applications must be made within 35 days of the date of such decisions (s.477(1) of the Act). In the current case no such application was made by the applicant in that time period.
However, s.477(2) of the Act provides that upon written application, the Court may extend the time for the making of an application pursuant to s.476 of the Act if it is in the interests of the administration of justice to do so.
It is now well-settled that while the factors relevant to the Court’s consideration in this regard are non-exhaustive, the reason for the delay in making the application, and importantly, whether there is any merit in the grounds of the proposed substantive application are relevant to the consideration of the extension of time (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751, and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158, see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) FCR 344 at [18] – [23]).
Why the applicant, it must be said adamantly, submitted that s.477 of the Act had no reference to, or “opportunity” for him, remains a matter for the applicant and his legal advisers.
The applicant’s argument was that, as a matter of statutory interpretation, s.477 of the Act did not apply to the current matter because as a “general” provision it is “exclu[ded]” by the more “specific” provision set out in s.487ZK of the Act ([33]) the applicant’s written submissions).
In my view, the Minister’s position is preferable. Section 487ZK of the Act is concerned with the institution of proceedings to recover a forfeited document, or a declaration relevant to such forfeiture. Section 477 of the Act is concerned with the time limits on the making of an application to this Court seeking judicial review of a migration decision under s.476 of the Act.
The focus of the two sections, while having some “overlap”, is different. But even if this proposition is not to be accepted, there is nothing in s.487ZK of the Act that alters the character of the “decisions” made by the officer of the Minister’s department (see [25] and [27] – [28] above).
They are decisions made under the Act, and are therefore, decisions with the relevant statutory basis for the purposes of s.476(1) and s.477 of the Act. They are decisions amenable to the Court’s jurisdiction pursuant to s.476(1) of the Act, and are not excluded by the operation of s.476(2) of the Act. In my view, s.477 of the Act on the one hand, and s.487ZJ and s.487ZK of the Act on the other hand, operate, and exist, in parallel to each other and are not inconsistent.
The very difficulty faced by the applicant now in this case (instituting the proceedings within time) could have been addressed through an application pursuant to s.477(2) of the Act.
The applicant’s objective in seeking to institute proceedings pursuant to s.487ZK of the Act was plainly to obtain the return of the forfeited document. That depended on the successful challenge to the “decisions” made by the officer of the Minister’s department.
That purpose, albeit initially on the basis of whether he had an arguable case, could have been achieved by instituting an application pursuant to s.477(2) of the Act.
For whatever reason, not only did the applicant elect not to pursue this, but even in the face of the Minister’s expressed position, persisted in that election. Any perception of “harshness” therefore vanishes with that conduct.
Conclusion
In all, the application is not competent. The NOC should be upheld. It is appropriate to dismiss the application on that basis. I will make the appropriate order.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 12 November 2018
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