Ewa19 v Minister for Home Affairs

[2021] FCCA 295

FEDERAL CIRCUIT COURT OF AUSTRALIA

EWA19 v MINISTER FOR HOME AFFAIRS & ORS [2021] FCCA 295

Catchwords:
MIGRATION – application for summary dismissal – whether there is no reasonable prospects of success – whether the Federal Circuit Court of Australia has jurisdiction to hear the applicant’s application – application for summary dismissal dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Commonwealth of Australia Constitution Act 1900 (Imp), s. 75

Federal Circuit Court of Australia Act 1999 (Cth) s. 17A

Federal Circuit Court Rules 2001 (Cth), r. 13.10

Federal Court of Australia Act 1976 (Cth), s. 31A

Migration Act 1958 (Cth), ss. 5, 109, 474, 476, 477

Cases cited:

EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230

Griffith University v Tang [2005] HCA 7

Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Whim Creek Consolidated NL v Coglan (1991) 31 FCR 469

Applicant: EWA19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: SECRETARY, DEPARTMENT OF HOME AFFAIRS

Third Respondent: COMMONWEALTH OF AUSTRALIA

File Number: MLG 4340 of 2019

Judgment of: Judge Mercuri

Hearing date: 13 July 2020

Date of Last Submission: 13 July 2020

Delivered at: Melbourne

Delivered on: 19 February 2021

REPRESENTATION

Counsel for the applicant: Mr Aleksov

Solicitors for the applicant: Russell Kennedy

Counsel for the respondents: Mr Knowles (SC)

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The first respondent’s application in a case filed on 11 May 2020 be dismissed.

AND THE COURT NOTES THAT:

(A)The matter remains listed on 28 September 2022 at 10:00am for directions before Registrar Carlton.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 4340 of 2019

EWA19

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

SECRETARY, DEPARTMENT OF HOME AFFAIRS

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

REASONS FOR JUDGMENT

1. This was an interlocutory application in which the first respondent sought for the applicant’s application filed on 10 December 2019 to be summarily dismissed pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).[1]

   [1] First respondent’s application in a case filed 11 May 2020.

2. By his substantive application, the applicant seeks orders pursuant to section 477(2) of the Migration Act 1958 (Cth) (“the Act”) to extend the time for him to apply for judicial review of an email sent by an officer of the Department of Home Affairs (“the Department”) to the applicant’s representative on 21 October 2019 (“the email”).[2]

   [2] Applicant’s application filed 10 December 2019.

3. On 15 May 2020, the applicant filed a subpoena seeking the release of all documents relating to the Department of Home Affair’s review of the decision to cancel the applicant’s Resident Return (subclass 155) visa.

4. The first respondent filed a notice of objection in relation to that subpoena.[3]  It was agreed in the course of the hearing before me that the question of the subpoena and the objection taken to it was a matter for another day.  Indeed, it seemed from the submissions made on behalf of the applicant that that subpoena may have been withdrawn, although that was not an unequivocal statement.[4]  In any event, the subpoena issue was not pressed at this stage.

   [3] First respondent’s application in a case filed 21 May 2020.

   [4] Transcript page 3 at lines 20 to 25.

5. That said, the issue before me was whether the first respondent’s application for the summary dismissal of the applicant’s application ought to be granted.

Background

1. The material facts in this case were not largely in dispute.

2. The applicant is a citizen of Iran and arrived in Australia as an unauthorised arrival on 16 May 2011.[5]  He was granted a protection (class XA) subclass 866 visa (“protection visa”) on 22 October 2012.[6]

   [5] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraphs 6 and 7.

   [6] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraphs 6 and 7 and annexure MZH-1.

3. On 27 November 2017, a delegate of the first respondent issued a Notice of Intention to Consider Cancellation to the applicant pursuant to section 109 of the Act, advising that the first respondent was considering revoking the applicant’s protection visa.[7]  A further Notice of Intention to Consider Cancellation in relation to the applicant’s protection visa was issued on 28 February 2018.[8]  It was common ground that it was the February Notice of Intention to Consider Cancellation which was relied upon.

   [7] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraph 8 and annexure MZH-2.

   [8] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraph 9 and annexure MZH-3.

4. On 5 March 2018, the applicant applied for a resident return (subclass 155) visa (“RR visa”).[9]

   [9] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraph 10 and annexure MZH-4.

5. On 19 April 2018, the applicant was notified that:

   a)a delegate of the first respondent (“the delegate”) had decided to cancel the protection visa pursuant to section 109 of the Act;[10]

   b)his application for the RR visa was granted;[11] and

   c)the first respondent was considering cancelling the applicant’s RR visa, and a Notice of Intention to Consider Cancellation of the applicant’s RR visa was issued (“the NOICC”).[12]

   [10] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraph 11 and annexure MZH-5.

   [11] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraph 12 and annexure MZH-6.

   [12] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraph 13 and annexure MZH-7.

6. It was common ground that these actions, which all occurred on 19 April 2018, occurred in that sequential order.  Importantly, it was argued for the applicant that the decision to cancel the applicant’s protection visa occurred and was communicated to him before he was advised that the RR visa had been granted.  I will return to the significance of the timing of this below.

7. On 23 April 2018, the applicant applied to the Administrative Appeals Tribunal (“the tribunal”) for review of the delegate’s decision to cancel the protection visa.  The applicant did not have legal representation at that time[13] and only later retained legal representation in November 2018.[14]

   [13] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraph 16.

   [14] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraph 17.

8. The applicant wrote to the Department by email on 11 May 2018 in response to the NOICC regarding the applicant’s RR visa.[15]  Relevantly, in that correspondence he stated, amongst other things:

   As the particulars and evidence in the new NOICC are the same as the NOICC dated 28 February 2018 associated with cancellation of my protection visa, I would like to rely on the same submissions that I have already provided to the Department. Therefore, I would like to request you to consider all submissions provided to the department (sic) in response to the previous NOICC (linked to the protection visa) as my submission for this new NOICC (Linked to the Resident Return visa). (sic) In particular, please consider the submissions made by my previous agent on my behalf on 14/03/2018 and 23/03/2018.[16]

   [15] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraph 14 and annexure MZH-8.

   [16] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at annexure MZH-8.

9. On 8 June 2018, the delegate decided to cancel the applicant’s RR visa pursuant to section 109 of the Act.[17]

   [17] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at annexure MZH-9.

10. On 26 September 2019, the tribunal set aside the delegate’s decision to cancel the applicant’s protection visa and substituted a decision not to cancel the applicant’s protection visa (“the tribunal’s decision”).[18]  As the applicant had not filed an application for review of the RR visa, the tribunal’s decision was silent on that issue and the interaction (if any) between the decision to reinstate the protection visa on the one hand and the status of the RR visa on the other.

    [18] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraph 18 and annexures MZH-10 and MZH-11.

11. Between 18 October 2019 and 21 October 2019, emails were exchanged between the applicant’s representative and the delegate in relation to the applicant’s status appearing as ‘unlawful’ on the Department’s system.[19]  In that correspondence, the email from the delegate stated:

    [19] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at paragraphs 20 and 21 and annexure MZH-12.

    I note that according to Departmental records, the visa holder’s Protection visa was cancelled on 19/04/2018 and his Resident Return visa (RR) was granted the same day.

    The visa holder’s Resident Return visa was cancelled on 08/06/2018.

    On 26 September 2019 AAT made the decision to set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

    However, as the grant of the visa holder’s RRV on 19/04/2018 would have caused his Protection visa to naturally cease on the same day, the departmental records now reflect that the visa holder’s Protection visa “ceased” on 19/04/2018, and no longer reflects a cancellation.

    However, as the visa holder’s RRV was granted on 19/04/2018 and cancelled on 08/06/2018, he is still currently unlawful.[20]

    [20] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at annexure MZH-12.

12. On 19 November 2019, the delegate confirmed that the applicant’s RR visa “was granted at 12:33pm on 19/04/2018”.[21]

    [21] Affidavit of Malvina Zofia Hagedorn affirmed 6 December 2019 and filed 10 December 2019 at annexure MZH-13.

13. On 16 January 2020, the applicant’s RR visa was reinstated and consequently, the applicant is presently a lawful non-citizen holding a RR visa.[22]

    [22] First respondent’s written submissions filed 7 July 2020 page 4 paragraph 16.

The applicant’s application

1. As stated, the applicant seeks an extension of time in which to press his application for judicial review.

2. The applicant’s application for review contains one ground of review:

   By reason of the decision of the Tribunal dated 29 September 2019, setting aside the decision to cancel the applicant’s protection visa and substituting a decision that the applicant’s protection visa not be cancelled, the applicant currently is the holder of a protection visa.[23]

   [23] Applicant’s application filed 10 December 2019 on page 4.

3. In relation to the extension of time application, the applicant raised the following grounds:

   1.This application has reasonable prospects of success.

   2.An extension of time will not prejudice the Respondent.

   3.There is a reasonable explanation for the Applicant’s delay. Namely, the Applicant is obtaining pro bono legal assistance and the legal question at hand is novel and required time to consider.  Furthermore, a key element of this Applicant is the time of grant of the Applicant’s Resident Return (subclass 155) visa.  This information was only obtained from the Department of Home Affairs on 19 November 2019.

   4.The Applicant has taken all possible steps to progress the Application expeditiously.

   5.An extension of time to permit the Applicant to challenge the migration decision is necessary in the interests of justice, because the Applicant is otherwise liable to being detained and returned to Iran where he claims to fear persecution.[24]

   [24] Applicant’s application filed 10 December 2019 at page 3.

Application for summary dismissal

1. As stated, the first respondent seeks orders of the court to summarily dismiss the applicant’s application pursuant to rule 13.10(a) of the Rules.[25]

   [25] First respondent’s application in a case filed 11 May 2020 at page 3.

2. Rule 13.10(a) of the Rules provides:

   The Court or a Registrar may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court or the Registrar is satisfied that:

   (a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

   …

3. This court’s power to summarily dismiss a proceeding under rule 13.10(a) is similar to the powers available to it under section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and section 31A of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”).

4. The court’s power to summarily dismiss all or part of a proceeding is one which ought not to be exercised lightly.  In Spencer v Commonwealth of Australia (2010) 241 CLR 118 (“Spencer”), which considered the Federal Court’s power for summary dismissal under section 31A of the FCA Act, French CJ and Gummow J noted:

   A proceeding need not be ‘hopeless’ or ‘bound to fail’ for it to have no reasonable prospect of success.[26]  …

   …

   The exercise of powers to summarily terminate proceedings must always be attended with caution.  That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process.[27]  …

   [26] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [17].

   [27] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24].

   …

   Section 31A(2) requires a practical judgement by the Federal Court as to whether the applicant has more than a ‘fanciful’ prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law.   …

5. In addition, their Honours Hayne, Crennan, Keifel and Bell JJ noted that the wording used in section 31A of the FCA Act, which was there being considered, makes it clear that the provision:

   departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.  Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail.[29]

   [29] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [53].

6. The plurality went on to say:

   How then should the expression ‘no reasonable prospect’ be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content.[30] …

   [30] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [58].

   …

   Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is ‘no reasonable prospect’ of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. … At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.[31]

   [31] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [60].

7. Similarly, as noted by French CJ and Gummow J in Spencer with regard to section 31A of the FCA Act:

   The section … will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is an unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. … The application of s 31A is not, in terms, limited to those categories.[32]

   [32] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [22].

8. It is clear from the court’s reasoning in Spencer that the respondent need not show that the applicant’s case is ‘hopeless’ or ‘bound to fail’, but rather, that it has no reasonable prospect of success.

9. Therefore, the question before this court is whether, having regard to the applicant’s claim and, importantly, the context in which that claim has been brought, the applicant has ‘no reasonable prospect’ of success.

10. As noted in Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 (“Kowalski”), section 31A of the FCA Act is discretionary, not mandatory.[33] So too is rule 13.10(a) of the Rules.

    [33] Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [28].

11. In Kowalski the Full Court also said that:

    the preconditions for the exercise of the relevant power, which require value judgements to be made in the absence of a full and complete factual matrix and full argument thereon, lead us to the view that a discretion is reposed in the judge hearing the relevant application to grant summary judgement.[34]

    [34] Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [28].

12. Relevantly, the Full Court continued:

    It remains a matter for a judge hearing a summary dismissal application to exercise some discretion as to whether questions of law that have been raised are so difficult that they ought not to be decided summarily.[35]

    [35] Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [31].

13. The applicant did not take issue with these general principles regarding the court’s discretion in a summary dismissal application.  Rather, the applicant argued that this matter gives rise to complex legal and factual issues which ought not to be dispensed with on a summary basis, but which ought to be resolved on a final basis.

14. There is much force to this submission.  For the reasons which follow, I agree that it is premature to deal with these issues on a summary basis at this preliminary stage.

The first respondent’s submissions

1. The first respondent submitted that the applicant’s application must fail because the court does not have jurisdiction under section 476(1) of the Act to review the ‘decision’ which is the subject of this proceeding. It was further submitted for the first respondent that if the court lacks jurisdiction to review a decision under section 476(1), then it does not have the power to grant an extension of time pursuant to section 477(1) of the Act.

2. Section 476 of the Act sets out this court’s jurisdiction in relation to migration decisions. Relevantly, it provides at subsection (1) that this court has the same original jurisdiction in relation to such decisions as does the High Court under section 75(v) of the Commonwealth of Australia Constitution Act 1900 (Imp).

3. A ‘migration decision’ is defined in section 5(a) of the Act to mean:

   (a)    a privative clause decision; or

   (b)    a purported privative clause decision; or

   (c)     a non-privative clause decision; or

   (d)    an AAT Act migration decision.

4. A ‘privative clause decision’ in turn is defined in section 474(2) 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) or (5).

1. Section 474(3) then goes on to effectively extend the concept of what falls within the notion of a ‘decision’ per se and expressly includes:

   (g)    doing or refusing to do any other act or thing;

   (h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

   …

   (j)     a failure or refusal to make a decision.

2. The applicant’s substantive application does not clearly identify what decision (within the broader definition of that term) the applicant takes issue with and seeks reviewed.  Rather, it simply asserts that the applicant was, as at the date of the application, a holder of a protection visa.

3. In its written submissions in support of its application for summary dismissal, the first respondent asserted that the applicant seeks a review of ‘an email of an officer of the Department of Home Affairs sent to the Applicant’s solicitors on 21 October 2019 (the Email).’[36]  The first respondent then asserted that this court has no jurisdiction on the basis that ‘the Email is not a ‘migration decision’...’ [37]

   [36] Respondent’s outline of submissions filed 7 July 2020 at paragraph 2.

   [37] Respondent’s outline of submissions filed 7 July 2020 at paragraph 3.

4. The applicant submitted that, by his application to this court, he does not expressly make reference to the Email as the ‘decision’ from which review is being sought.  It is noted that in his application for review, the applicant identified the decision from which review is being sought as a ‘Decision made by the Minister or another person under the Migration Act.’[38]  It also provides the following further identifying details:

   [38] Applicant’s application filed 10 December 2019 at page 3.

   Name of decision maker: Annette, Position number 00002737;

   Office Held:  Visa Cancellation Officer, Visa Cancellation Unit – NSW, General Cancellations Network, Department of Home Affairs

   Date of the decision: 21/10/2019[39]

   [39] Applicant’s application filed 10 December 2019 at page 3.

5. This information is equivalent to the information in the email sent from the Department to the applicant’s representative.

6. On 18 October 2019, the applicant’s representative wrote to the Department in the following terms:

   We act for [the applicant] in relation to the cancellation of his Subclass 866 (Protection) visa.  …

   … We note that as of today’s date, VEVO continues to state that [the applicant] does not have a current Australian visa.  We request that you amend your records immediately in line with the AAT’s decision.  Our client is currently attempting to re-enrol is (sic) his architecture degree at RMIT university and urgently requires evidence of his visa.

   Please … advise once your records have been updated.

   …[40]

   [40] Affidavit of Malvina Zofia Hagedorn sworn 6 December 2019 and filed 10 December 2019 at annexure MZH-12.

7. It was in response to this request that the Department responded on 21 October 2019 in the following terms:

   Dear …

   Thank you for your email.

   I note that according to Departmental records, the visa holder’s Protection visa was cancelled on 19/04/2018 and his Resident Return visa (RRV) was granted the same day.

   The visa holder’s Resident Return visa was cancelled on 08/06/2018.

   On 26 September 2019 AAT made the decision to set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

   However, as the grant of the visa holder’s RRV on 19/04/2018 would have caused his Protection visa to naturally cease on the same day, departmental records now reflect that the visa holder’s Protection visa ‘ceased’ on 19/04/2018, and no longer reflects a cancellation.

   However, as the visa holder’s RRV was granted on 19/04/2018 and cancelled on 08/06/2018, he is still currently unlawful.

   Kind regards

   Annette

   Position Number 00002737

   Visa Cancellation Officer

   Visa Cancellation Unit – NSW

   General Cancellations Network

   Department of Home Affairs[41]

   [41] Affidavit of Malvina Zofia Hagedorn sworn 6 December 2019 and filed 10 December 2019 at annexure MZH-12.

8. It was submitted for the first respondent that the threshold issue of whether the applicant’s claim falls within the court’s jurisdiction comes down to a very confined question.  That question, put simply, is whether the applicant has asked this court to review a ‘migration decision’ under section 476 of the Act. It was submitted that even putting the applicant’s case at its highest, the answer to this is no.[42]

   [42] Transcript page 7 at lines 41 to 47 and page 8 at lines 1 to 3.

9. When one has regard to the definition of a privative clause decision, the first respondent submitted that there are four elements that need to be satisfied by the applicant, namely:

   a)there needs to be a ‘decision’;

   b)the decision must be of an ‘administrative character’;

   c)the decision must be made, proposed to be made or required to be made under the Act, a regulation or other instrument; and

   d)the decision must not be a decision under section 474(4) or section 474(5).[43]

   [43] Transcript page 9 at lines 14 to 22.

10. The first respondent conceded that:

    a)section 474(4) and section 474(5) are not relevant;[44] and

    b)the definition of ‘privative clause decision’ in section 474(3) is inclusive, non-exhaustive and very broad.[45]

    [44] Transcript page 9 at lines 24 to 26.

    [45] Transcript page 9 at lines 26 to 31.

11. However, notwithstanding the broad definition of a ‘privative clause decision’, the first respondent submitted that the applicant was still required to point to a decision which is of an ‘administrative character’ and which is made under the Act.[46]

    [46] Transcript page 9 at lines 33 to 37.

12. It was submitted that neither of these two criteria are met in this instance.[47]

    [47] Transcript page 9 at lines 38 to 40.

13. The first respondent relied upon the decision in EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230 (“EFX17”) where Greenwood J said:

    … s 474(3)(g)… is an obligation required of the Minister of his delegate (sic) which is ‘substantive in character’. It is not merely procedural. … In the statutory setting of the Migration Act, s 474(3)(g) should be read as referring to ‘the exercise or refusal to exercise a power or obligation’. Nor is it part of a reasoning process leading to a decision.  It calls for the discharge of a statutory duty or obligation which engages, as directly as language can, the ‘doing or refusing to do any other act or thing.’[48]

    [48] EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230 at [68].

14. In addition, the first respondent pointed to the further comments by Greenwood J in EFX17 where, after referring to Griffith University v Tang [2005] HCA 7, he said:

    [69]In Griffith University v Tang … Gummow, Callinan and Heydon JJ at [79] and [80], in construing the elements of the definition of the phrase ‘decision to which this Act applies’, in the ADJR Act, noted that the ‘decision’ made, proposed to be made or required to be made, must be ‘of an administrative character’ and observed that this phrase casts some light on the ‘force’ to be given to the phrase ‘under an enactment’ … Their Honours observed that the relationship between those two phrases gives rise to the question: ‘What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved …

    [70]  Their Honours answered the question in this way …

    The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement.[49]

    [49] EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230 at [69] and [70].

15. The first respondent conceded that Greenwood J’s comments were obiter.  However, it was submitted for the first respondent that those comments were sound and rest with established case law.[50]

    [50] Transcript page 11 at lines 43 to 45.

16. Applying those comments then to the facts before this court, it was submitted for the first respondent that the refusal to recognise the applicant holds a protection visa was not substantive in character, rather, it was simply an interpretation of the operation of the Act. It was not substantive in that it does not engage with or discharge a statutory duty or obligation.

17. In the course of the first respondent’s submissions, the following exchange occurred:

    Mr Knowles: … let’s just say … a person interprets the Act incorrectly, that does not affect whether in truth, in law, the person has a visa or doesn’t have a visa.

    HH:But the Minister’s position, in relation to this applicant, is that he does not have … a protection visa.

    Mr Knowles:     Yes.  That’s true.

    …

    HH:… the effect of that interpretation is that the Minister, through his Department, is refusing to acknowledge that state of affairs.

    Mr Knowles: But that doesn’t, in my respectful submission, alter the … legal fact of whether or not there is or is not a protection visa. That interpretation does not alter the underlying visa status in law of the applicant. … Now, it’s not to say that somebody couldn’t seek declaratory relief in respect of what visa status this person has. But that would not attach to anything that could … possibly be described as a migration decision for the purposes of the Act.

    That’s the subtle distinction here, your Honour, … and it’s an important distinction because if one falls over one side of the line, no jurisdiction.  If you fall over the other side, jurisdiction.[51]

    [51] Transcript page 13 at lines 2 to 35.

18. In addition, the first respondent submitted that the consequences to the applicant in this case was akin to the consequence of forfeiture in the customs area.[52]  As noted in Whim Creek Consolidated NL v Coglan (1991) 31 FCR 469, the court distinguished between the consequence of forfeiture and an administrative decision which would amenable to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).  O’Loughlin J said:

    The concept of forfeiture does not evolve out of any administrative decision to which the provisions of the Judicial Review Act might attach.  On the contrary, it arises by force of statue upon the happening of certain prior events.  That this is so has already been recognised on several occasions, for example, Northrop J said ‘No person makes a decision that goods are forfeited.’[53]

    [52] Transcript page 15 at lines 20 to 25.

    [53] Whim Creek Consolidated NL v Coglan (1991) 31 FCR 469 at page 476.

19. The first respondent pointed to this case, and other similar decisions to make the distinction between a ‘decision’ and something which flows by operation of legislation.[54]

    [54] Transcript page 15 at lines 20 to 43 and page 16 at lines 12 to 35.

20. Taking the applicant’s submissions at their highest, the applicant argued that the first respondent had refused to accept and continued to refuse to accept that the protection visa remained in force, noting that its cancellation was reversed by the tribunal.  At the very least, the decision to refuse to acknowledge that situation was made at or about the time of the Email.  It appears that it is this refusal upon which the applicant relied as affording jurisdiction to bring his application, which he argued falls within the extended definition of a ‘privative clause decision’.

21. To the extent that the application itself does not clearly articulate this position, the applicant submitted that was not surprising.  Given how early in the proceedings this summary dismissal application had been brought, it was submitted for the applicant that he had not yet had the opportunity to articulate his case beyond the application document.[55]

    [55] Applicant’s outline of submissions filed 9 July 2020 at paragraph 45(iii).

22. Put at its highest, the first respondent’s submission was that:

    a)there has been no ‘privative clause decision’, and

    b)if the court is satisfied of this, then the court must find that there has been no ‘migration decision’, and

    c)consequently, there is no jurisdiction for the applicant to bring his application.[56]

    [56] Transcript page 17 at lines 34 to 37.

23. The applicant submitted that it was not necessary for it to establish that there had in fact been a ‘privative clause decision’.  Rather, in a summary dismissal application, all that the applicant needed to show was that he has a reasonable prospect of establishing that there has been such a decision.  Or rather, the party seeking a summary dismissal needs to show that the applicant has no reasonable prospects of establishing that there was such a decision.

24. I agree with the applicant’s submission in this regard. 

25. Ultimately, there was some circularity to the arguments advanced in this matter for both parties. 

26. For the first respondent, it was submitted that the applicant’s visa status was the result of the operation of the Act and a consequence of his application for the RR visa. As such, it was submitted that there was therefore no ‘migration decision’ made by the first respondent which was capable of review under the Act, and therefore, the court has no jurisdiction. If the court has no jurisdiction, the applicant can have no reasonable prospects of success.

27. For the applicant, it was said that it was the act of the first respondent failing to acknowledge the applicant’s status as the holder of a protection visa which is the issue.

Analysis and conclusion

1. The present question for this court is whether the applicant’s case has no reasonable prospect of success.  If the court were satisfied that the first respondent’s conduct amounted to ‘refusing to do any other act or thing’, it could arguably be conduct which falls within the extended definition of ‘privative clause decision’ under section 474(3)(g) of the Act.

2. Importantly, the applicant made the point that his complaint was not, and never had been, about a Department official’s interpretation of the effect of the Act, but rather, the applicant’s complaint was about the first respondent’s refusal to recognise that the applicant held a protection visa.[57]

   [57] Transcript page 18 at lines 8 to 13.

3. The applicant conceded that ultimately, he may not be successful at trial.  However, he maintained that it was not necessary for him to establish that his argument would be successful.[58]  All that he needed to do was show that the first respondent had not established that he had ‘no reasonable prospects of success.’[59]

   [58] Transcript page 23 at lines 13 to 17.

   [59] Transcript page 17 at lines 46 and 47.

4. This is not a distinction without a difference.  The first respondent has not established that the applicant had no reasonable prospects of identifying a ‘migration decision’ and establishing that there was a jurisdictional error in the making of that decision.

5. Moreover, given the legal and factual complexity involved in this matter, and the early stage at which the summary dismissal application has been made, I am of the view that the court ought not exercise its discretion to dismiss this application at such a preliminary stage.

6. Having come to this view:

   a)I order that the first respondent’s application in a case filed on 11 May 2020 be dismissed; and

   b)I note that the matter remains listed on 28 September 2022 at 10:00am for directions before Registrar Carlton.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:    

Date:     19 February 2021

[28] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [25].