Ekg18 v Minister for Home Affairs

[2018] FCCA 3356

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKG18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3356

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – applicants seek judicial review of Notices of Intention to Consider Cancellation – another Judge of this Court is reviewing the jurisdiction of the Court to do so in a separate proceeding commenced by the parents of the applicants – applicants have other rights of review of any adverse action taken against them pursuant to the Notices of Intention to Consider Cancellation – discretionary decision not to entertain applications at this point of time – this proceeding stood over to abide the outcome of the pending decision in the case brought by the parents as to whether this Court has jurisdiction.

Legislation:

Migration Act 1958 (Cth)

First Applicant: EKG18

Second Applicant: EKH18

Third Applicant: EKI18

Fourth Applicant: EKJ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: VISA CANCELLATIONS OFFICER POSITION 60029772

File Number: SYG 3182 of 2018

Judgment of: Judge Dowdy

Hearing date: 16 November 2018

Delivered at: Sydney

Delivered on: 16 November 2018

REPRESENTATION

Counsel for the Applicants: Mr D. Taylor

Solicitors for the Applicants: Sydney West Legal and Migration

Counsel for the First Respondent: Mr T. Galvin

Solicitors for the First Respondent: Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. Stand the proceeding over to a date to be fixed by the Court in consultation with the parties subsequent to his Honour Judge Smith’s judgment on the jurisdiction of this Court in SYG2155 of 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3182 of 2018

EKG18

First Applicant

EKH18

Second Applicant

EKI18

Third Applicant

EKJ18

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

VISA CANCELLATIONS OFFICER POSITION 60029772

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. Yesterday afternoon, Mr Taylor for Sydney West Legal and Migration approached the Registry seeking to approach the Duty Judge, which happens to be me this week, for the filing of an Amended Application which ultimately yesterday afternoon I gave leave to be made returnable before me today in my direction’s list.  The Amended Application is supported by a number of affidavits and Mr Taylor’s written submissions which I have read.

2. When the matter was called this morning Mr Galvin appeared for the Minister.  The situation is that the four Applicants in this case are the children of two Applicants, being their parents, in the separate matter of SYG2155 of 2018 (SYG2155). 

3. In the circumstances of the Applicants in this case as explained to me, and the Applicants in SYG2155, all have been served with Notifications Of Intention to Consider Cancellation (NOICCs). The parents were served earlier than the Applicants were in this case and, in fact, the visas of the parents have been cancelled.

4. SYG2155 has been before Judge Smith, and on 8 November 2018 his Honour made, inter alia, the following orders in that matter:

   (1) That the Minister file and serve written submissions concerning:

   (a) whether the Court must determine as a preliminary issue the question of jurisdiction;

   (b)     the question of jurisdiction; and

   (c) costs;

   by 23 November 2018.

   Mr Galvin, who also appears for the Minister in the case before Judge Smith, tells me that the written submissions will be filed in that matter.

5. I have a concern about jurisdiction. That concern is presumably similar to the concern of Judge Smith, and that is whether or not this Court has jurisdiction to make orders or grant judicial relief for jurisdictional error in a situation where it seems to be accepted that all six Applicants have the right, upon cancellation of their visas to, first approach the Administrative Appeals Tribunal for merits review of the decision to cancel the visa, and then from the Administrative Appeals Tribunal there lies, of course, the opportunity for seeking judicial review in this Court of any adverse decision of the Tribunal.

6. Mr Taylor has said that there are further and other complications arising in relation to the children who are the Applicants in this case and that there may be other side effects in terms of applications for permanent visas which they have made.  I do not think that in a matter of this nature, having regard to the jurisdictional issues when a Judge of this Court has already raised doubts about jurisdiction and when a decision on jurisdiction is pending, that I should entertain argument on that point and enter into it when another Judge of the Court is about to do so and, in particular, in relation to a matter in the Duty Judge’s list where time is unfortunately at a very great premium.

7. The fact of the matter is that I would have to be completely satisfied about jurisdiction before I would grant any form of relief and, in particular, relief of an injunctive nature. Further, as a discretionary matter, it does not seem to me to be appropriate that I should enter into a consideration of injuncting administrative decisions still pending before duly authorised officers of the Minister under the Migration Act 1958 (Cth), when my jurisdiction to do so is uncertain and the Applicants have other rights of review in relation to any adverse action taken against them under the Act.

8. Further, I am confirmed in my view in this regard because Mr Galvin for the Minister has given an assurance that no action will be taken to deport the Applicants in this case and that the Minister will not act to cancel the visas on the basis of the current NOICCs until Judge Smith has given his decision on whether or not this Court has jurisdiction to hear and determine the case and relief sought by Mr Taylor’s clients in this Court in SYG2155.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  26 November 2018