Dyankov v Minister for Immigration
[2015] FCCA 2535
•14 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DYANKOV & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2535 |
| Catchwords: MIGRATION – Judicial review of a Migration Review Tribunal decision – Applicant seeks to transfer the matter to the Federal Court of Australia – consideration of s.39 of the Federal Circuit Court of Australia Act 1999 (Cth) – consideration of r.8.02 of the Federal Circuit Court Regulations 2001 (Cth) – no transfer. |
| Legislation: Federal Circuit Court Act 1999 (Cth), ss.39, 39(3), 39(6), Federal Circuit Court Rules 2001 (Cth), rr.8.02, 8.02(4) Migration Act 1958 (Cth), ss.338(2)(d)(i), 338(2)(d)(ii) |
| Ahmad v Minister for Immigration and Ors [2015] FCCA 1486 Candel v Minister for Immigration & Ors [2015] FCCA 2013 Minister for Immigration and Border Protection v Lee [2014] FCCA 2881 |
| First Applicant: | TIHOMIR ENCHEV DYANKOV |
| Second Applicant: | SILVIA KRASIMIROVA DYANKOV |
| Third Applicant: | EMANUEL TIHOMIROV DYANKOV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 949 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 14 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 14 August 2015 |
REPRESENTATION
| Counsel for the applicants: | Ms Costello |
| Solicitors for the applicants: | Hanna Jackson Lawyers |
| Counsel for the First Respondent: | Mr Leerdal |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS MADE ON 14 AUGUST 2015
The name of the Second Respondent be amended to the Administrative Appeals Tribunal.
Pursuant to r.44.11(c) of the Federal Circuit Court Rules 2001 (Cth), a hearing under r.44.12 be dispensed with and the application be listed for final hearing.
The applicants file and serve by 15 January 2016:-
(a)any amended application including any additional grounds of review with complete particulars of each ground; and
(b)any affidavits.
The First Respondent file and serve any affidavits by 8 February 2016.
The applicants file and serve written submissions and list of authorities 28 days before the final hearing.
The First Respondent file and serve written submissions and list of authorities 14 days before the final hearing.
The Application be listed for final hearing on a date to be fixed in March 2016 at 10am for one day with priority.
The directions hearing listed on 19 August 2015 be vacated.
Costs reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 949 of 2015
| TIHOMIR ENCHEV DYANKOV |
First Applicant
| SILVIA KRASIMIROVA DYANKOV |
Second Applicant
| EMANUEL TIHOMIROV DYANKOV |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
The Applicant has filed an Application in this Court dated 4 May 2015 seeking judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 13 April 2015. It is useful to set out the grounds of Application here. They are as follows:-
“1. The Tribunal’s Decision was affected by jurisdictional error.
2. The Tribunal failed to exercise its jurisdiction by deciding, wrongly, that it did not have jurisdiction under s.338(2)(d)(i) to determine the application on its merits.
3. The Tribunal erred in construing s.338(2)(d)(i) by interpreting “sponsored by an approved sponsor” to mean there had to be an approved nomination in force.
4. The Tribunal erred by not finding that the primary applicant was sponsored by approved sponsor under s.338(2)(d)(i) at the time of his application to the Tribunal when in fact, at the time of the tribunal application:
a. he was sponsored by Sireb Pty Ltd (known as Malvern Hand Wash)(“the Sponsor”); and
b. he had been nominated by the Sponsor (although the nomination had been refused on 24 October 2014).
Particulars:
i. On 3 July 2014:
1. the Sponsor applied for approval as sponsor;
2. the Sponsor applied for approval of its nomination of the applicant; and
3. the main applicant applied for the relevant visa.
ii. On 28 July 2014, the Sponsor was approved as a standard business sponsor.
iii. On 24 October 2014:
1. the Sponsor’s application for approval of its nomination of the main applicant was refused; and
2. the main applicant’s visa application was refused.
iv. On 5 November 2014, the applicants applied to the tribunal to review the delegate’s visa refusal decision.
5. The decision applied by the Tribunal, Minister for Immigration and Border Protection v Lee (2014) FCCA 2881, is wrong in law.”
The First Respondent, in Response dated 22 May 2015, opposes the making of all the orders sought in the applicants’ Application and seeks costs in the event that the Application is dismissed. The grounds of opposition include that the First Respondent contends the Migration Review Tribunal (as it then was) was correct in finding that it did not have jurisdiction in the matter in its Decision Record dated 13 April 2015 (‘the Decision Record’). The First Respondent consented to the application to show cause and to the listing of the matter for final hearing.
Before the Court this day is an Application in a Case filed by the Applicant and dated 5 June 2015. The Applicant seeks an order pursuant to s.39 of the Federal Circuit Court Act 1999 (Cth) and r.8.02 of the Federal Circuit Court Rules 2001 (Cth) that the proceeding be transferred to the Federal Court of Australia. That Application was supported by an Affidavit made by Melinda Ann Jackson affirmed on
4 May 2015. That Affidavit annexed, and marked as exhibit “A”, a copy of the Decision Record.
In that decision, the Tribunal member expressed herself to be bound to apply the case law as set out in the Federal Circuit Court decision in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881 (‘Lee’). Applying the reasoning in Lee, the Tribunal found that the decision of the Delegate of the First Respondent to refuse the Applicant’s subclass 457 visa application was not a Migration Review Tribunal reviewable decision for the purposes of s.338(2)(d)(i) of the Migration Act 1958 (Cth) (‘the Act’).
Section 39 of the Federal Circuit Court of Australia Act1999 (Cth) is as follows:-
“(1) If a proceeding is pending in the Federal Circuit Court of Australia the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to the Federal Court or the Family Court.
(2) The Federal Circuit Court of Australia may transfer a proceeding under this section:
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(4) In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(4); and
(b) whether proceedings in respect of an associated matter are pending in the Family Court; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(5) If an order is made under subsection (1), the Federal Circuit Court of Australia may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Court or the Family Court, as the case requires.
(6) An appeal does not lie from a decision of the Federal Circuit Court of Australia in relation to the transfer of a proceeding under subsection (1).
(7) A reference in subsection (1) to a proceeding pending in the Federal Circuit Court of Australia includes a reference to a proceeding that was instituted in contravention of subsection 19(1).
(8) This section does not apply to proceedings of a kind specified in the regulations.”
Rule 8.02 of the Federal Circuit Court Rules 2001 (Cth) is as follows:-
“(1) The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.
(2) Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.
(3) Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.
(4) In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, 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 or the Family Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it 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 proceeding will be heard earlier in the Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.”
Consideration
A transfer of proceedings from this Court to the Federal Court of Australia is a discretionary matter. It is not subject to appeal.[1]
[1] Federal Circuit Court Act 1999 (Cth), s.39(6).
The factors to be considered by the Court in the circumstances of this case are those as set out in s.39(3) of the Federal Circuit Court of Australia Act 1999 (Cth). Additionally, the factors as set out in r.8.02(4) of the Federal Circuit Court Rules 2001 (Cth) are also relevant.
There are no proceedings in respect of an associated matter pending in the Federal Court of Australia. The resources of this Court are not sufficient to hear and determine many of the proceedings before the Court in what would reasonably be regarded as a timely fashion. If this matter were to be listed in my docket, in the ordinary course of events, it would not receive a listing until September 2016. Some of my colleagues are currently listed to a date to be fixed in 2017 in respect of judicial review of migration matters coming before this Court. Counsel for the Applicant submitted, after making inquiries this morning, that the hearing of this matter could occur in the Federal Court of Australia prior to the expiration of this year.
The Applicant wishes for the matter to be transferred to the Federal Court of Australia for a timely hearing. The Respondent opposes such transfer and submits, as contained in Affidavit filed by the First Respondent and affirmed by Ms Catherine Nicole Hooper on
21 July 2015, that it would be appropriate for the Full Federal Court appeal hearing in the matter of Rana Muktar Ahmad v Minister for Immigration and Border Protection & Ors (NSD708/2015) to be heard and determined prior to the hearing of this matter in this Court. Deputy District Registrar Morgan, on 19 June 2015, directed that the appeal be listed for hearing on a date to be fixed during the sitting period, 3 to 25 August 2015, unless the Court advises that the appeal will be heard on a different date. Neither party was able to advise this Court as to the precise listing, if any, in the Federal Court of Australia in the month of August 2015, of that appeal.
Despite the current difficulty with the resources of the Federal Circuit Court of Australia to hear and determine these proceedings in a timely fashion, there is capacity to hear matters that require more urgent hearings by the rearranging of a judicial officer’s docket. In this case, this matter can be accommodated in that way and listed in March 2016. It will take priority over other listed matters. It is the Court’s view that the interests of the administration of justice are served by this proceeding remaining in this Court. Currently, the proceeding does not involve questions of general importance such that it would be desirable for there to be a decision of the Federal Court of Australia on one or more of the points in issue.
The Application can be properly determined in this Court and, thereafter, the Applicant has the ability to challenge such decision in the Federal Court of Australia’s appellate jurisdiction where the Federal Court of Australia, on appeal, will have the assistance of this Court’s reasoning. The Court is also mindful that Parliament has intended that this should be the Court which deals with migration applications at first instance, generally speaking.
The Court considers that the restricted resources of this Court is a matter to be managed more appropriately by the Court’s head of jurisdiction in conjunction with the Chief Justice of the Federal Court of Australia, rather than by the transferring of proceedings.
It would seem that matters of cost and convenience do not favour either a transfer or no transfer outcome.
Materially similar issues concerning the correctness of Lee have been raised in a number of cases heard and determined by this Court. In particular, the Court was taken to the decision in Ahmad v Minister for Immigration and Ors [2015] FCCA 1486, a decision of Judge Street, delivered on 29 May 2015, and which is the subject of a current appeal to the Full Federal Court of Australia. Judge Street determined in that matter that in the particular facts of that proceeding, the Migration Review Tribunal was correct in holding that it had no jurisdiction, and correct in holding that s.338(2)(d)(ii) of the Act had no application in that case.
The Court was also taken to the more recent decision of Judge Street in Candel v Minister for Immigration & Ors [2015] FCCA 2013 (‘Candel’) which determined that the Migration Review Tribunal in that case erred in law in holding that it did not have jurisdiction. I note in that proceeding that the First Respondent accepted that the obiter dicta in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881 (Judge Nicholls), at paragraphs 44 to 45 of that decision, were incorrect to the extent that they suggest there must be an “approved” nomination of an occupation to satisfy s.338(2)(d)(i) of the Act. Having made that concession, the First Respondent nevertheless submitted that the decision in Lee was not incorrectly decided on its facts, as in Lee the relevant nomination had ceased before the application to the Tribunal for review. That was not the factual scenario in the proceedings before Judge Street in Candel. I note that both those matters proceeded in this Court and were determined appropriate matters for this Court at first instance.
The real issue here for the Applicant, who filed the substantive Application on 25 July 2014, is to obtain a timely hearing date. This Court has listed the matter in March and will endeavour to find an earlier hearing date in the event that other matters in the lists do not proceed and a space becomes available.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 16 September 2015
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