GCLV v Minister for Immigration and Anor (No.2)

[2020] FCCA 372

FEDERAL CIRCUIT COURT OF AUSTRALIA

GCLV v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 372

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Judgments and orders – order purportedly made under s.477(2) of the Migration Act 1948 (Cth) in circumstances where order to that effect had previously been made by a different judge – whether orders that include the second order extending time liable to be amended under the slip rule so as to remove second order extending time – order made.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.05(2)(h)

Migration Act 1958 (Cth), ss.476, 477(2)

Applicant: GCLV

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1384 of 2019

Judgment of: Judge Manousaridis

Hearing date: 19 February 2020

Date of Last Submission: 19 February 2020

Delivered at: Sydney

Delivered on: 19 February 2020

REPRESENTATION

No appearance by or on behalf of the Applicant

No appearance by or on behalf of the First Respondent

ORDERS

1. Pursuant to r.16.05(2)(h) of the Federal Circuit Court Rules 2001 (Cth):

   (a)the order made on 20 August 2019 will be amended by replacing “29 July 2019” with “6 June 2019”;

   (b)order 1 of the orders made on 14 February 2020 will be deleted;

   (c)order 2 of the orders made on 14 February 2020 will be amended by deleting “Tribunal” and substituting “second respondent (Tribunal)”; and

   (d)orders 2, 3, and 4 of the orders made on 14 February 2020 shall be read as orders 1, 2, and 3.

2. The orders made on 20 August 2019, and the orders made on 14 February 2020, when amended, shall each bear the following notation:

   “The Court notes that:

   These orders have been amended pursuant to r.16.05(2)(h) of the Federal Circuit Court Rules 2001 (Cth) by orders made on 19 February 2020.”

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1384 of 2019

GCLV

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. On 14 February 2020 I made final orders in this matter. One of the orders purported to be an order under s.477(2) of the Migration Act 1958 (Cth) (Act) extending the time for making an application for relief under s.476 of that Act.

2. On the evening of that day my associate received an email from the lawyer for the Minister, stating as follows:

   We wish to draw to the Court’s attention for completeness that no order extending time was required, as such an order was made on 20 August 2019 by Judge Nicholls following a hearing on the question.

3. On Monday 17 February 2020 my associate brought that email to my attention, and it became clear that, as was stated in the email from the Minister’s lawyer, Judge Nicholls did indeed make an order extending time.  That order, as stated in the email, was made on 20 August 2019 and provided for an extension of time “up to and including 29 July 2019”. 

4. When preparing my reasons for judgment I proceeded on the assumption that an order under s.477(2) of the Act was required, because the written submissions the parties had filed made submissions in relation to that question. I was not aware that, after those submissions had been filed, an order was made under s.477(2) extending time. In any event, after the error was brought to my attention, I formed the view that I needed to rectify the orders I made on 14 February 2020, and in particular, to remove from that order the order purporting to extend time.

5. I also, however, formed the view that the order made on 20 August 2019 also needed to be rectified. The reason for my view is that, as I have already said, the order was to extend time up to and including 29 July 2019. That is not the day on which the applicant made his application to this Court for remedies under s.476 of the Act in relation to the decision of the Administrative Appeals Tribunal. The date on which the applicant made such application was 6 June 2019. I formed the view that, under s.477(2) of the Act, the time to which an order extending time can be made is the day on which an application is made to the Court, such date being the date on which the initiating application is filed with the Court.

6. Having formed these views, I instructed my associate to send to the parties the following email, which was sent on 17 February 2020.

   Dear Practitioners,

   The below email has been brought to his Honour’s attention.

   His Honour proposes to make an order under r.16.05(2)(h) of Federal Circuit Court Rules 2001 (Cth) as follows:

   a)the order made on 20 August 2019 is amended by replacing “29 July 2019” with “6 June 2019”;

   b)order 1 of the orders made on 14 February 2020 (Orders) is deleted;

   c)order 2 of the Orders will be amended by deleting “Tribunal” and substituting “second respondent (Tribunal)”; and

   d)orders 2, 3, and 4 of the Orders shall be read as orders 1, 2, and 3.

   His Honour proposes to deliver a short judgment at 2:15 pm on 19 February 2020 before he makes these orders. There is no need for the parties to attend unless any of the parties have any objection to his Honour making these orders. If the parties do have any objection the parties may notify their objection to chambers before 2:15 pm on 19 February 2020.

7. The legal representatives of both parties responded to that email, and each of the parties said that he did not have any objection to the Court proceeding in the manner proposed in the email my associate sent, and that they would not attend the delivery of the judgment I indicated I proposed to give. 

8. In those circumstances, I am satisfied that the orders as they currently stand contained errors and slips which are liable to be rectified by exercise of the power conferred under r.16.05(2)(h) of the Federal Circuit Court Rules 2001 (Cth), and I propose to make orders to the effect I indicated I would make in the email my associate sent to the parties.

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

Associate: 

Date:  24 February 2020