GARCIA v Minister for Home Affairs

[2020] FCCA 1521

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARCIA & ANOR v MINISTER FOR HOME AFFAIRS [2020] FCCA 1521

Catchwords:
MIGRATION – Application in a case arising out of a consent orders – where consent orders for a writ in the nature of certiorari and writ of mandamus – where it is not generally the practice of the registry to issue actual writs – where the Minister responds that orders were wrongly made – where a party does not seek to rely on the slip rule in making consent orders between the parties this Court has completed its function.

Legislation:

Migration Act 1958 (Cth)

First Applicant: MIKAEL GARCIA

Second Applicant: JOCELYN VILLENO GARCIA

Respondent: MINISTER FOR HOME AFFAIRS

File Number: DNG 11 of 2019

Judgment of: Judge Young

Hearing date: 1 June 2020

Date of Last Submission: 1 June 2020

Delivered at: Darwin

Delivered on: 1 June 2020

REPRESENTATION

Counsel for the first and second Applicants: Mr McMillan

Solicitors for the first and second Applicants: Diaspora Legal

Counsel for the Respondent: Mr Riley

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application in a case filed 6 May 2020 by the first and second applicant and the response filed 28 May 2020 by the respondent be dismissed.

2. All extant applications be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 11 of 2019

MIKAEL GARCIA

First Applicant

JOCELYN VILLENO GARCIA

Second Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application in a case arising out of a consent order made between the applicants and the Minister on 27 August 2019.  There was no hearing before this Court beyond the making of consent orders.  The order contains the notation agreed upon by the parties, which reads as follows:

   The respondent accepts that the decision of the respondent’s delegate was affected by jurisdictional error as the delegate should have, but did not, consider the statement of the first applicant dated 5 March 2018 in response to the respondent’s invitation to comment sent on 9 February 2018. 

3. I made the consent order provided by the parties without further consideration beyond having regard to that note.  I see there is one error in the order, which I will correct – in order 3, the reference should be to “him” rather than to “them”. 

4. The background is as follows.  The second applicant is an applicant for a visa.  The first applicant made an application to be permitted to be a sponsor of the second applicant.  The first applicant’s sponsorship application was refused by the Minister’s delegate on 6 March 2019. 

5. On 1 April 2019 the second applicant’s application for a visa was refused by the same delegate of the Minister, on the basis that a necessary criterion was not satisfied, that is, the existence of an approved sponsorship.  On 18 April 2019 there was an application for judicial review of the decision to refuse the sponsorship application, that is, the decision made on 6 March.  The application made to this Court related only to that decision.

6. The consent orders entered into by the parties properly identified the decision to refuse the sponsorship application made on 6 March 2019.  Consent orders were made that there be a writ in the nature of certiorari quashing the decision of the delegate and, secondly, an order for the issue of a writ of mandamus directed to the respondent requiring him to determine the first applicant’s application according to law.

7. As is customary in my experience sitting in this jurisdiction and in this Court for the past five years no actual writ was issued by the Registrar.  This is a practice that has developed when the Minister is the respondent because invariably the Minister has accepted the making of the order as sufficient for considering the relevant decision to be invalid and, if need be, making the decision again. 

8. In this case the applicants are dissatisfied with aspects of the Minister’s response.  I have had some difficulty identifying precisely what the dissatisfaction is as on the face of it the dissatisfaction relates to the fact that actual writs have not been issued.  As I explained to Mr McMillan, who appears for the applicants, while it has not in my experience been the practice of the registry to actually issue writs with the Court stamp, there is probably no reason why that cannot happen.  That is very much a matter for the Registrar however as the order has been made. 

9. The real point of the application is I am afraid lost on me, as the Minister says it will act on the orders and I have no reason to doubt that.  Perhaps the difficulty is this.  The argument that was mounted before me, or at least the description by the Minister of its decision, was that for technical reasons, which I do not need to go into because I do not consider that it is necessary for me to determine, the delegate who made the decision to reject the sponsorship application is not required in all the circumstances to make the decision again.  

10. To put it another way, the Minister is not required to make the decision again.  As best I can understand the applicant’s argument this is because the refusal of the visa application by the second applicant on 1 April has been sent to the Administrative Appeals Tribunal (“AAT”) for review.  Presumably the second applicant sought a review in the AAT and that is where her application is at the moment. 

11. The Minister’s argument was that the sponsorship application and a visa application of the kind made by these applicants necessarily travels in tandem and while there are superficially at least two decisions, the power, according to Mr Riley appearing for the Minister, is only exercised when the decisions are made together or jointly.  I did not fully understand that argument because I was not satisfied that I needed to. 

12. The result of that was that the Minister said the orders made by consent on 27 August 2019 ought not to have been made.  The Minister says that order 3 in particular, a writ of mandamus directed to the Minister requiring him to determine the application, ought not to have been made and he says notwithstanding the agreement of the Minister at the time to the making of the order, the Minister’s advisers have subsequently realised that there is a technical problem of the kind that I have attempted to describe.  The applicant does not accept that position and is not willing to have the orders varied in any way. 

13. It appears to me that the Minister has subsequently formed a view that the orders of a Court were inappropriately made and does not seek to rely on the slip rule.  The Minister does not say that there was a slip or an inadvertent error.  The Minister says, having received subsequent advice, he believes the order was wrongly made. 

14. In my view, where this Court has made such orders by consent to fully dispose of the issue between the parties that this Court’s function is complete, it is functus officio.  It does not appear appropriate to me that the Minister should come back to this Court and attempt to re-agitate matters in the way that he does.  If an order of this Court was wrongly made, for whatever reason other than a slip, it appears to me the Minister’s real remedy is to appeal to the Federal Court which has jurisdiction to correct error made in this Court. 

15. For that reason I decline to hear the Minister’s application.  I propose to dismiss both the application in a case raised by the applicants and the Minister’s response which seeks to vary the orders in the way that I have mentioned. 

16. The other issue that I should mention is that the applicants sought an order for substituted service of the writs that they seek to have issued by the Registrar in conformity with the orders of this Court.  This is an order for substituted service on the Australian Government Solicitor rather than personal service on the Minister.  Mr Riley, who appeared for the Minister today, said that the Australian Government Solicitor has instructions to accept any process in relation to this particular matter and I infer he has had such instructions all along.  There is no evidence before me that the Minister is insisting on personal service.  That being the case I dismiss both applications.  I do not propose to make any order for costs as I consider that both applications have been misconceived.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 10 June 2020