Halal Restaurant Supplies Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCA 1589

FEDERAL COURT OF AUSTRALIA

Halal Restaurant Supplies Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1589  

Appeal from:

Halal Restaurant Supples Pty Ltd v Minister for Immigration & Anor [2020] FCCA 956

Halal Restaurant Supples Pty Ltd v Minister for Immigration & Anor [2020] FCCA 958

File numbers:

QUD 151 of 2020
QUD 152 of 2020

Judgment of:

ALLSOP CJ

Date of judgment:

2 November 2020

Legislation:

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 476A, 477

Cases cited:

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194

Craigv The State of South Australia [1995] HCA 58; 184 CLR 163

Division:

General Division

Registry:

Queensland

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

7

Date of hearing:

2 November 2020

Solicitor for the Appellant:

Mr R Tien of Guru Legal

Solicitor for the First Respondent:

Ms B Rayment of Sparke Helmore

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

QUD 151 of 2020
QUD 152 of 2020

BETWEEN:

HALAL RESTAURANT SUPPLIES PTY LTD

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	ALLSOP CJ
DATE OF ORDER:	2 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The matters be stood over to Monday 16 November 2020 at 10:30am AEDT for the making of any orders or the hearing of any application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ

1. On 20 September 2019 the Administrative Appeals Tribunal affirmed the decision of a delegate of the Minister in relation to the nomination for a Temporary Residence Transition nomination stream visa. The reasons of the Tribunal need not be discussed today. They were as to the failure of the appellant in each matter to satisfy the delegate and the Tribunal of matters in reg 5.19 of the Migration Regulations 1994 (Cth).

2. Judicial review proceedings were taken in the Federal Circuit Court of Australia.  A judge of that court on 28 April 2020 dismissed two identical applications for extension of time to bring those judicial review proceedings.  Those applications were necessary because in each case the applicant was four days out of time.  The reason for the refusal of the Court to extend time was the Court’s view, after analysis of the Tribunal’s reasons, that the complaints about the Tribunal’s reasons had no reasonable prospect of success.  The reasons of the Federal Circuit Court judge sought to analyse carefully the Tribunal’s reasons and the complaints about them in the submissions underneath the applications for judicial review.

3. In the ordinary course, decisions or orders of the Federal Circuit Court of Australia in their original jurisdiction can be challenged on appeal in this Court. There are restrictions, however. Section 476A(3)(a) of the Migration Act 1958 (Cth) (the Act) provides that no appeal is to be brought to this Court from a judgment of the Federal Circuit Court that makes an order, or refuses to make an order, under s 477(2) of the Act. That section is the extension of time provision dealing with applications for review made (as these ones were) more than 35 days after the migration decision. The first respondent filed a notice of objection to competency in each matter and filed those notices promptly. For those reasons, the appeals in their current form are incompetent.

4. These matters were listed for case management today, not for final orders, so I do not propose to make final orders today. In circumstances such as the present, the fact that the appellate jurisdiction of the Court cannot be engaged because of the statute does not mean that the original jurisdiction of the Court might not be engaged under s 39B of the Judiciary Act 1903 (Cth). That said, such applications are of a different kind and would require it to be demonstrated that the Federal Circuit Court judge so misunderstood his task as to have committed jurisdictional error as a judge in refusing to extend time in which to file and serve the applications for judicial review. In fairness to the appellant in each case, that matter should be drawn to their attention if it was not drawn to their attention by the Commonwealth.

5. Without forming a final view, may I say, given the close attention the learned Federal Circuit Court judge placed on the terms of the Tribunal’s decision and his other reasons, it would be a not insignificant task to detect jurisdictional error of a judge in the exercise of his task even if legal error could be shown: see Craigv The State of South Australia [1995] HCA 58; 184 CLR 163; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194.

6. To allow any consideration of those matters and to finalise agreement as to costs in relation to the appeals, I propose to stand the matters for two weeks for the making of orders.  If there be any application in relation to the matters to which I have referred, or any further written submissions as to why a course should be taken other than dismissing the appeals with orders for costs, that application or those submissions should be made no later than Wednesday 11 November 2020.

7. For those reasons, I will stand the matters over to Monday 16 November 2020 at a time to be fixed for the making of any orders or the hearing of any application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop.

Associate:

Dated:       2 November 2020