KRJF v Minister for Immigration
[2018] FCCA 150
•24 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KRJF v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 150 |
| Catchwords: COURTS AND JURISDICTION – Whether the Court has jurisdiction to hear judicial review application – where decision of Administrative Appeals Tribunal concerning cancellation of bridging visa on character grounds. PRACTICE AND PROCEDURE – Whether necessary to consider extension of time application – whether pro bono referral to be made – where Court has no jurisdiction. PRACTICE AND PROCEDURE – Whether judicial review application to be transferred to the Federal Court where Court has no jurisdiction to hear judicial review application – factors for consideration. WORDS AND PHRASES – “question of general importance”. |
| Legislation: Constitution (Cth), s.75(v) Migration Act 1958 (Cth), ss.476, 476A, 477, 500, 501, 501CA Migration Litigation Reform Bill 2005 (Cth), Explanatory Memorandum |
| Cases cited: Acquino v Minister for Immigration [2013] FCCA 897 |
| Applicant: | KRJF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 500 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 20 December 2017 |
| Date of Last Submission: | 20 December 2017 |
| Delivered at: | Perth |
| Delivered on: | 24 January 2018 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr A Burgess |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the originating application be dismissed for want of jurisdiction.
That the applicant’s oral application for transfer of the proceedings to the Federal Court of Australia be dismissed.
That the applicant pay the first respondent’s costs in the sum of $1,467 by 24 February 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 500 of 2017
| KRJF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is an Iraqi citizen who arrived in Australia as an unauthorised maritime arrival in August 2001: Re:KRJF v Ministerfor Immigration & Border Protection [2017] AATA 1223 (“Tribunal Decision”) at [1].
The applicant was granted a Class XA Subclass 785 (Temporary Protection Visa) (“TP Visa”) on 31 January 2002. The TP Visa expired on 15 February 2006, and the applicant held a Bridging Visa from that date until it was cancelled by the Minister pursuant to s.501(3A) of the Migration Act 1958 (Cth) (“Migration Act”) on 5 October 2016: Tribunal Decision at [55].
The applicant seeks judicial review (“Judicial Review Application”), seemingly under s.476 of the Migration Act, of the Tribunal Decision made on 4 August 2017. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) affirming the Minister’s decision to invoke the mandatory cancellation of the applicant’s Class WA Subclass 010 (Bridging A) visa (“Bridging Visa”) effective from 5 October 2016.
The applicant lodged the Judicial Review Application on 13 September 2017, outside of the time limit under s.477 of the Migration Act of 35 days for lodging an application for judicial review in this Court. This resulted in the applicant applying for an extension of time (“Extension of Time Application”). For reasons which follow the Court need not consider the Judicial Review Application or the Extension of Time Application as there is no jurisdiction for it to do so.
Cancellation of the Bridging Visa
The cancellation of the applicant’s Bridging Visa was made pursuant to s.501(3A) of the Migration Act which reads as follows:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory ….
The Minister cancelled the applicant’s Bridging Visa under the character test primarily because of the applicant’s criminal convictions. The applicant’s first offence was on 12 February 2003, and since then he has:
a)committed eight driving offences, including a conviction for dangerous driving: Tribunal Decision at [11]
b)been convicted of “Assault Occasioning Bodily Harm (Victim over 60 years)”: Tribunal Decision at [12];
c)breached a Community Based Order on two occasions: Tribunal Decision at [13];
d)been convicted of “Assault Occasioning Bodily Harm” and “Common Assault” and sentenced to “imprisonment for 8 months concurrent…” and had a further Community Based Order imposed: Tribunal Decision at [13]-[14];
e)been convicted of “Being Armed Or Pretending To Be Armed In A Way That May Cause Fear”: Tribunal Decision at [15];
f)been convicted of "Detained Another With Intent to Gain a Benefit” and sentenced to 4 years imprisonment: Tribunal Decision at [16];
g)been convicted for each of "Assault Occasioning Bodily Harm" and "Demanding Property by Oral Threats" and sentenced to imprisonment for "one year cumulative": Tribunal Decision at [17];
h)been convicted of “Assaulting person performing a public function” and sentenced to imprisonment for six months “concurrent”: Tribunal Decision at [22];
i)been convicted of the following drug offences:
i)“Driving With Prescribed Illicit Drug in Oral Fluid”: Tribunal Decision at [23];
ii)two offences of possessing a prohibited drug (methyl amphetamine and cannabis): Tribunal Decision at [23];
iii)possessing a utensil for smoking prohibited drug: Tribunal Decision at [23]; and
iv)possession of a prohibited drug – Amphetamine: Tribunal Decision at [24];
j)been fined for “Disorderly Behaviour In A Police Station”: Tribunal Decision at [24]; and
k)been convicted of two offences relating to stealing: Tribunal Decision at [25];
In the applicant’s circumstances it was mandatory for the Minister to cancel his Bridging Visa: Migration Act, s.501(3A). Having conceded he did not pass the character test, the issue before the Tribunal was if, pursuant to s.501CA(4)(b)(ii) of the Migration Act, there was another reason why the decision to cancel the Bridging Visa should be revoked: Tribunal Decision at [3]-[5]; Brown v Minister for Immigration & Citizenship [2009] FCA 1098; (2009) 112 ALD 67 at [16] per Edmonds J. The Tribunal considered this issue, and when exercising this discretion expressly acknowledged it must follow ‘Direction No. 65, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under S501CA’ (“Direction 65”): Tribunal Decision at [6].
The Tribunal affirmed the Delegate’s Decision not to revoke the cancellation of the applicant’s Bridging Visa: Tribunal Decision at [93].
Judicial Review Application
The Judicial Review Application seeks that the Tribunal Decision be set aside and remitted for reconsideration on the following grounds:
1. NOT SATISFIED WITH THE OUTCOME OF ADMINISTRATIVE APPEALS TRIBUNAL
2. THE SECOND RESPONDENT ERRED IN ITS DETERMINATION AS TO WHETHER THE APPLICANT FACED A REAL CHANCE OF PERSECUTION BECAUSE IT FAILED TO CONSIDER THE POSSIBILITY OF ERROR IN ITS EVALUATION OF THE APPLICANT'S CLAIMS. IN PATICULAR, THE SECOND RESPONDENT FAILED TO ASK ITSELF THEQUESTION " WHAT IF I AM WRONG " IN ITS ASSESSMENT OF THE APPLICANT'S CLAIMS AND CREDIBILITY
3. THE SECOND RESPONDENT FAILED TO ACKNOWLEDGE THE FEAR I WOULD FACED FOR MY LIFE IF I BE SENT BACK TO MY COUNTRY.
4. THE SECOND RESPONDENT DID NOT TAKE INTO ACCOUNT THAT I WOULD LIVED IN A MISERY LIFE IN MY COUTRY DUE THERE IS NO FAMILY, FRIENDS WHO WOULD BE THERE FOR ME.
5. THE SECOND RESPONDENT DID NOT RECONSIDERING ABOUT THE DIFFICULTIES MY KIDS AND MY FIANCE WOULD FACED IF I GET DOPORTED TO MY COUNTRY BY IMMIGRATION DEPERTMENT.
[copied verbatim].
In support of the Extension of Time Application the applicant asserted he is in immigration detention and thus lacked legal representation and the ability to complete the Judicial Review Application on time.
The Court wrote to both parties on 13 December 2017 indicating that at the hearing on 20 December 2017 (which was the first court date) the parties should be prepared to make oral submissions on the following preliminary issues:
a)whether this Court has jurisdiction to hear the Judicial Review Application;
b)whether the Extension of Time Application ought to be granted; and
c)whether the proceedings should be transferred to the Federal Court.
At hearing the applicant’s submissions, in summary, were that:
a)he does not have a lawyer and the Court needs to provide him with pro-bono assistance;
b)because he does not have a lawyer he did not know where he had to submit the Judicial Review Application or what he needed to say. When it was put to the applicant he was advised by the Registry of the Court on three separate occasions this Court would likely not have jurisdiction to hear the Judicial Review Application, the applicant re-iterated that he needs pro-bono assistance; and
c)if this Court does not have jurisdiction, then if the matter is transferred to the Federal Court he still needs a lawyer and an extension of time.
At hearing the Minister, in summary, submitted that:
a)this Court does not have jurisdiction to hear the Judicial Review Application: Migration Act, s.476(2)(b);
b)only the Federal Court has jurisdiction to hear an application of the type contained in the Judicial Review Application: Migration Act, s.476A;
c)the Minister’s lawyers had written to the applicant on 10 October 2017 advising that the Minister was of the opinion that the Court did not have jurisdiction, and inviting the applicant to discontinue the Judicial Review Application, failing which there would be an application for a show cause hearing and for costs (and the letter from the Minister’s lawyers was tendered into evidence as Exhibit 1);
d)the Court had power to transfer the proceedings to the Federal Court, even if the Court did not have jurisdiction to hear the Judicial Review Application: Acquino v Minister for Immigration [2013] FCCA 897 at [4] per Judge Jarrett (“Acquino”), applying Fisher v Minister for Immigration & Citizenship & Anor [2007] FCA 591; (2007) 162 FCR 299; (2007) 95 ALD 66 (“Fisher”); and
e)whether the matter was transferred to the Federal Court or dismissed costs should be awarded to the Minister in the sum of $1,467.
Consideration
Jurisdiction
It is the first duty of every Court to determine whether or not it has jurisdiction: Federated Engine-Drivers & Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285; CLR at 415 per Griffith CJ, 428 per Barton J and 454 per Isaacs J; Re Boulton; Ex parte Construction, Forestry, Mining & Energy Union (1998) 85 IR 468; (1998) 73 ALJR 129 at 133 per Kirby J.
The Tribunal had jurisdiction to review the Delegate’s Decision under s.500(1)(ba) of the Migration Act.
For relevant purposes the jurisdiction of this Court is found in s.476 of the Migration Act:
(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;
The High Court enjoys original jurisdiction under s.75(v) of the Constitution to hear matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth.
This Court does not have jurisdiction to hear the Judicial Review Application by reason of s.476(1) and (2)(b) of the Migration Act: McVey v Minister for Immigration & Anor [2012] FMCA 924; (2012) 269 FLR 379 at [31] per Judge Lucev; Huynh v Minister for Immigration & Anor [2011] FMCA 404 at [4]-[6] per Scarlett FM; Migration Litigation Reform Bill 2005 (Cth), Explanatory Memorandum at [8]-[9].
It is only the Federal Court which has jurisdiction to consider a judicial review application in relation to the Tribunal Decision which was made under s.500 of the Migration Act, as provided by s.476A(1)(b) and (c) of the Migration Act, which provides as follows:
(1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977 , the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
… or
(b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or
(c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or
….
In ARJ17 v Minister for Immigration & Border Protection [2017] FCA 263 at [17] and [83] per Rares J (“ARJ17”) the Federal Court observed that:
Both s 476(2)(b) and (c) exclude the jurisdiction of the Federal Circuit Court “in relation to” the particular classes of migration decisions that s 476A(1)(b) and (c) provide are in this Court’s original jurisdiction …
… And, if the relief under s 75(v) was sought in a matter “on a ground that a particular migration decision is affected by jurisdictional error where that particular migration decision answers a description in s 476(2)”, then s 476 did not confer jurisdiction on the Federal Circuit Court in relation to that migration decision (SZSSJ 90 ALJR at 912 [59]-[62]).
An appeal from ARJ17 was dismissed: Minister for Immigration & Border Protection v ARJ17 [2017] FCAFC 125; (2017) 347 ALR 477, but nothing there said affected the above cited observations from ARJ17. See also BMX15 v Minister for Immigration & Border Protection [2016] FCA 1183; (2016) 244 FCR 153 at [85] per Bromberg J.
The Court having no jurisdiction to hear the Judicial Review Application it follows that the Judicial Review Application ought to be dismissed, subject, however, to the Court’s findings with respect to the oral application to transfer the proceedings to the Federal Court (as to which see below at [25]-[37]).
Extension of Time Application
As the Court has no jurisdiction to hear the Judicial Review Application it follows that it has no jurisdiction to deal with the Extension of Time Application. If the Judicial Review Application is to be dismissed: see [21] above and [38(a)] below, it is unnecessary to make a further order that the Extension of Time Application contained in the Judicial Review Application be dismissed.
Pro bono referral
The applicant re-iterated a number of times he needs the Court to provide him a lawyer to prepare his case. There is no right to legal representation in judicial review proceedings under the Migration Act: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ; SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; WZASY v Minister for Immigration & Anor [2017] FCA 1623 at [20]-[21] per Judge Lucev. It is not a requirement of procedural fairness for an applicant to have publically funded legal representation, nor is it a reasonable ground for an application or proceeding to be stayed in the absence of such representation: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551 at [51] per Flick, Griffiths and Perry JJ.
This Court may refer a person for pro bono legal assistance: Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) r.12.02(1), but there is no right to a referral, or to apply for a referral: FCC Rules r.12.03; WZATG v Minister for Immigration & Anor [2014] FCCA 2730 at [21] per Judge Lucev. Insofar as the applicant wishes the Court to ‘give him a lawyer,’ the Court has already determined it does not have jurisdiction to hear the Judicial Review Application, and thus it is without jurisdiction to make a referral under r.12.02 of the FCC Rules.
Transfer to the Federal Court
The Court has power to transfer the proceedings to the Federal Court: s.39(1) and (2) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”): Acquino; Fisher. In determining whether to exercise the transfer power, or not, the Court must consider s.39(3) of the FCCA Act which provides as follows:
(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
Having regard to s.39(3)(a) of the FCCA Act, r.8.02(4) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) requires the Court to consider the following:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c) whether the proceeding will be heard earlier in the Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
The Court observes as follows:
a)there is no evidence to suggest similar proceedings have been commenced in the Federal Court: FCCA Act, s.39(3)(b);
b)the sufficiency of the resources of this Court to hear and determine the matter is irrelevant where the Court has no jurisdiction to hear the matter: FCCA Act, s.39(3)(c); and
c)the factors in r.8.02(4)(b)-(d) of the FCC Rules need not be considered as it is irrelevant to make such determinations and assessments where this Court has no jurisdiction to hear the matter and the Federal Court exercises original jurisdiction in relation to the subject matter of the Judicial Review Application.
In relation to whether or not there is a question of general importance arising in these proceedings the Court observes that whether or not a jurisdictional error has occurred in relation to the revocation of a visa on character grounds, or whether or not a jurisdictional error has occurred in any event, does not of itself raise a question of general importance.
In Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [13] per Lucev FM (“Genovese”) the Federal Magistrates Court said that a question of general importance might arise where:
a)the issue to be determined is of general importance to the public at large or a significant class of persons or type or series of cases: MZXJR v The Minister for Immigration [2006] FMCA 652 at [38] per McInnis FM;
b)the case relates to the revenues of a Commonwealth or State: Noble v Cotton in Dowling, Proceedings of the Supreme Court, Vol 34 1 at p.10 (and in that case relating to revenues of the then colony of New South Wales);
c)significant human rights issues are at stake, such as in Karner v Austria (2003) ECHR 395, where the European Court of Human Rights had to deal with differential treatment of homosexuals in succession to tenants under Austrian law as involving a question of general importance not just for Austria but for other state parties to the relevant convention;
d)an issue as to the proper construction of legislation arises: Baumer v R (1988) 166 CLR 51;
e)some important or exceptional point of principle arises: Veen v R (1979) 143 CLR 458 at 461 per Stephen J, 468 per Mason J and 497-498 per Aickin J; and
f)the particular area of law or the case law concerning that area is, “an area of some complexity”: Spencer & Rutherford v Horizon Holidays & Ors [2006] FMCA 386 at [7] per Connolly FM (“Spencer & Rutherford”), or there is a “substantial commercial dispute which involves a number of complex issues”: Spencer & Rutherford at [10] per Connolly FM.
In Genovese the Federal Magistrates Court held that there was nothing in the particular bankruptcy notice in issue which involved a question of general importance or sufficient complexity to warrant transfer to the Federal Court: at [14] per Lucev FM.
In Van Efferen v CMA Corporation Ltd [2008] FMCA 875; (2008) 173 IR 456 the identification of a question of general important set out in Genovese at [13] per Lucev FM was set out and followed in a case where issues as to whether a dispute settlement procedure in an Australian Workplace Agreement could be enforced, whether damages for a breach of the dispute settlement procedure flow, and if so how damages would be calculated if there was found to be a breach, and how Australian Workplace Agreements containing such dispute settlement procedures interact with contracts of employment (at least insofar as there were said to be implied duties in the common law contract of employment) were held to be questions of general importance warranting the transfer of a matter from the Federal Magistrates Court to the Federal Court.
In Mason & Anor v Methodist Ladies College [2009] FMCA 570 (“Mason”) the Federal Magistrates Court ordered the transfer of proceedings to the Federal Court because there was a question of general importance arising in relation to the application of the Disability Standards for Education 2005 (Cth) in relation to which there were no relevant cases, and those Standards were considered to be important in the context of the obligations of educational institutions to students with disabilities: Mason at [7]-[8] per Lucev FM. The issues of general importance identified in that case also included:
a)the alleged right of disabled persons and disabled students to be educated in accordance with the Standards in both the State and private school systems: at [9] per Lucev FM; and
b)issues associated with the proper construction of not only the Standards, but the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the Disability Discrimination Act 2005 (Cth) and the applicable international convention: Mason at [11]-[12] per Lucev FM.
There is nothing in the Judicial Review Application which, even if jurisdictional error were to be established on the grounds of the Judicial Review Application, appears to raise a question of general importance. Likewise, nothing said by the applicant (or by the Minister who disavowed that there was a question of general importance arising) at hearing suggests that there is a question of general importance arising in this matter.
In the Court’s view no question of general importance arises in this matter.
In relation to the wishes of the parties the applicant was emailed twice by the Court’s Registry, and called by a Registry staff member, to say that he may be lodging the Judicial Review Application in the wrong jurisdiction, but the applicant said he wanted his matter heard in this Court: FCC Rules, r.8.02(4)(e). At hearing the applicant appeared relatively unconcerned about the issue of jurisdiction, and in which Court the matter should be heard, and far more concerned with whether he would be provided with a lawyer.
The Court notes that the interests of the “management” of justice, being the management by the Court of proceedings pending before the Court, is to be distinguished from the “interests of justice”: Genovese at [28] per Lucev FM; Australian Municipal, Administrative, Clerical & Services Union v Brimbank City Council [2009] FMCA 1213; (2009) 190 IR 358 at [15] per Turner FM. When considering if a transfer is in the interests of the administration of justice the Court notes the following:
a)the Judicial Review Application will still have been lodged out of time: Migration Act, s.477(2);
b)ground 1 would likely be dismissed for inviting impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J (“Quin”);
c)grounds 2 and 3 refer to the Tribunal’s assessment of the Australia’s non-refoulement obligations that are to be assessed at a lesser standard than those for a TP Visa: Ayoub v Minister for Immigration & Border Protection (2015) FCAFC 83; (2015) 231 FCR 513 at [28] per Flick, Griffiths and Perry JJ;
d)the Tribunal expressly dealt with the applicant’s return to Iraq (ground 4), and the strength, nature and ties he shares with his child (ground 5): Tribunal Decision at [77]-[80] and at [83]-[91] and these grounds again appear to invite impermissible merits review: Wu Shan Liang; Quin; and
e)any ground of review that might be arguable, reasonably arguable, or have a reasonable prospect of success should weigh in favour of the applicant: Mladenov v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J.
In the above circumstances, and in particular where the applicant appears to have ignored advice about pursuing the Judicial Review Application in this Court, and where the Judicial Review Application was lodged out of time, does not obviously demonstrate an arguable case or raise any question of general importance, the Court is not satisfied the present proceeding warrants the Court exercising its discretion under s.39(1) and (2) of the FCCA Act to transfer these proceedings to the Federal Court. The applicant’s oral application for a transfer of the proceedings to the Federal Court will be dismissed.
Conclusion and orders
The Court has concluded that:
a)it has no jurisdiction to hear the Judicial Review Application, and that that application, being the originating application in these proceedings, is to be dismissed for want of jurisdiction;
b)the applicant’s Extension of Time Application need not be determined in circumstances where the Court does not have jurisdiction to determine the Judicial Review Application;
c)the applicant’s oral application for referral to a Registrar of this Court for pro bono legal assistance need not be determined in circumstances where the Court does not have jurisdiction to determine the Judicial Review Application; and
d)the proceedings ought not be transferred to the Federal Court of Australia, and the applicant’s oral application for that transfer should be dismissed.
It follows that there will be orders for the dismissal of:
a)the originating application (the Judicial Review Application); and
b)the oral application for transfer of the proceedings to the Federal Court of Australia.
It follows from the forgoing orders for dismissal that the Minister ought to have his costs in the sum of $1,467 as sought at hearing, and there will be a further order to that effect, with the costs being payable by 24 February 2018.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 24 January 2018
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