FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1116 |
| Catchwords: PRACTICE AND PROCEDURE – Non-appearance at first court date – review of Registrar’s decision not to exercise the power under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) – no reasonable explanation for failure to attend first court date – Registrars have power under r.16.05(2) because of s.102(6) of the Federal Circuit Court of Australia Act 1999 (Cth). MIGRATION – Application for Temporary Business Entry (Class UC) visa – whether the Tribunal had the power to hear the applicant’s application under s.29(8) of the Administrative Appeals Tribunal Act 1975 (Cth) – application to Tribunal was not made in time – Registrars orders upheld and application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.15A, 18A |
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- Case
- [2017] FCCA 1116
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were: (1) whether the Administrative Appeals Tribunal correctly determined it lacked jurisdiction to hear the applicant's visa review application, and (2) whether a Registrar of the Federal Circuit Court possessed the power to dismiss an application for non-appearance at a first court date, and subsequently, to refuse to set aside such an order.
The Court found that the AAT's decision regarding its lack of jurisdiction was correct, as the application was made outside the statutory time limits. Regarding the Registrar's powers, the Court analysed the Federal Circuit Court Act 1999 (Cth) and the Federal Circuit Court Rules 2001 (Cth). It concluded that Rule 10.01(3)(s) of the Rules, which allows a Registrar to make orders in relation to "any other matter that the Court or Registrar considers appropriate," was broad enough to encompass the power to dismiss proceedings for non-appearance at a first court date. This interpretation was supported by the objects of the Act and Rules, which aim for streamlined and efficient resolution of proceedings. The Court also considered and distinguished prior decisions, finding that the Registrar's actions were within their power, and that constitutional validity was maintained through the Court's power of review under section 104 of the Act.
The application was dismissed.
Orders
Orders of the court
1.
The application be dismissed.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY
SYG 2214 of 2016
SANJEEV KUMAR
Applicant
And
MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
1.
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal decided that it did not have jurisdiction to review a decision of a delegate of the Minister to refuse to grant the applicant a visa. The Tribunal’s decision was unquestionably correct and this application must fail. The Tribunal only has jurisdiction to review a decision if an application is made to it within the prescribed time. The applicant’s application to the Tribunal was made outside that time.
2.
However, the correctness of the Tribunal’s decision is not the only issue in the proceedings. These proceedings were initially dismissed by a Registrar of the Court because the applicant failed to appear at the first court date. There is an issue as to whether the Registrar had the power to make such an order. The issue arises because the express power to dismiss an application when an applicant is absent at a hearing (including a first court date), is found in r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). However, that rule states that, when a party is absent, “the Court” may do one or more things, including dismiss the application. “Court” is defined for the purposes of the FCC Rules to mean the Federal Circuit Court of Australia which consists of the Chief Judge and such other Judges as from time to time hold office in accordance with the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act): Dictionary to the FCC Rules and s.8(4) of the FCC Act. As such, the reference to “Court” in r.13.03C(1)(c) does not include a reference to the Registrars of the Court.
3.
The resolution of the issue is that, on its proper construction, r.10.01(3)(s) of the FCC Rules empowers the Registrars of the Court to dismiss proceedings when an applicant is absent from a first court date. An alternative avenue to the same conclusion is provided by the decision of Judge Street in Uddin v Minister for Immigration & Border Protection [2017] FCCA 500 (Uddin). In Uddin, his Honour held that the Registrars of the Court were delegated the relevant power pursuant to r.20.00A of the FCC Rules. As neither conclusion is consistent with the decision of Judge Riley in this Court in Singh v Minister for Immigration & Border Protection [2017] FCCA 522 (Singh), it is necessary to explain the outcome in some detail.
Applying or departing from earlier decisions made in the Federal Circuit Court
4.
The decision in Singh is a recent and considered decision of a Judge of this Court. Whether or not a Court should depart from one of its earlier decisions, and the basis on which it will do so, is a matter of practice for that Court: see Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 at 268–9 (Dawson J, Toohey J and McHugh J). Other Courts in this country have adopted the practice of only departing from one of its earlier decisions if that decision is clearly or plainly wrong: see, for example, Chamberlain v The Queen (1983) 72 FLR 1; (1983) 46 ALR 493. In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2 Allsop J (as his Honour then was) explained that:
[191] … the question is not whether the error is obvious or patent, that is whether the error appears obvious or plain to see on the face of the judgment. Rather, the use of words such as ‘plainly’ or ‘clearly’ as qualifying the word ‘wrong’ (see Transurban[1] at [29]) is merely another way of expressing what both Chamberlain and Transurban convey: the need for being convinced or persuaded of the earlier Full Court’s error.
[192] The approach in Chamberlain, as adopted and explained in Transurban, is simple and clear, requires caution in its exercise and conforms with the public policy of certainty of decision making tempered by the public policy of justice according to law, not according to perpetuated error. It contains more than an exhortation to caution; it sets out the proper approach to be undertaken and advises against unnecessary prescription of criteria. It has strong sources in the approaches of judges in Australia: see, eg Jordan CJ (speaking for himself, Davidson and Halse Rogers JJ) in Bridges v Bridges (1944) 45 SR (NSW) 164 and Wallace P (with whom Holmes JA agreed) in Bennett & Wood Ltd v Orange City Council (1967) 67 SR (NSW) 426 (at 503-504).
5.
This Court has adopted a similar practice: see for example, Stuke v Rost Capital Group Pty Ltd (2011) 202 IR 442; [2011] FMCA 79.
6.
I must then apply the decision in Singh unless I consider that it is clearly wrong. Uddin is different because the Registrar in that case did not purport to dismiss the proceedings under r.13.03C(1)(c), but rather, referred the matter to Judge Street for determination. That means that what his Honour said in respect of the Registrars’ powers was not part of the ratio of that decision. That said, as his Honour gave considered reasons in respect of the question that arises in this matter, I will afford that decision the respect that any judgment of this Court deserves.
Background
7.
The applicant applied for a Temporary Business Entry (Class UC) visa on 18 January 2016. On 15 April 2016 a delegate of the Minister made a decision not to grant the applicant the visa and notified the applicant in writing of that decision on the same day. On 12 July 2016 the applicant applied to the Administrative Appeals Tribunal for review of that decision. By letter dated 25 July 2016 the Tribunal informed the applicant that it considered that his application for review was invalid because it was made outside the time prescribed by the Migration Act 1958 (Cth) (Migration Act), and because he had not paid the application fee. The applicant replied to the Tribunal’s letter, accepting that his application was late, but arguing that the delay was not his fault and that he had been denied procedural fairness. On 12 August 2016 the Tribunal decided that it had no jurisdiction for the reasons it had given in its letter to the applicant.
8.
On 16 August 2016 the applicant applied to this Court for judicial review of the Tribunal’s decision. The matter was listed for a first court date before a Registrar on 10 November 2016. The applicant did not appear on that day and the Registrar made an order under r.13.03C(1)(c) of the FCC Rules dismissing the application for that reason.
9.
The applicant then applied for the Registrar’s orders of 10 November 2016 to be set aside under r.16.05 of the FCC Rules. That application was heard by the Registrar on 8 December 2016 and dismissed.
10.
The applicant has now applied for review of the Registrar’s decision to refuse to make an order under r.16.05.
11.
That application first came before me on 15 February 2017. At that time, I raised the question whether the Registrar had the power to dismiss an application for failure to appear, or to set aside such an order. The matter was adjourned in order for submissions to be prepared in relation to that question.
12.
Both Singh and Uddin were decided before this matter next came on for hearing. I will consider those decisions in due course. However, first, I will consider for myself the question whether, on the proper construction of the FCC Rules, the Registrar had the power to dismiss the application because the applicant was absent from the first court date.
The Registrars’ powers to dismiss for non-appearance at a first court date
13.
The first matter to consider is the plain meaning of the text of the FCC Rules. That meaning, of course, can be affected by the context including the scope and purpose of the Rules as well as the fact that they are Rules and not primary legislation[2].
14.
The provisions of the FCC Act relating to Registrars of the Court are found in Div.4 of Pt.7 of the FCC Act. There are two sources of powers of Registrars in that Division: ss.102 and 103. Section 102 deals with powers and s.103 deals with delegation of power. It is not entirely clear why there are two separate provisions or, at a high level of generality, what the difference between them is. The Federal Court of Australia Act 1976 (Cth) (FCA Act) includes a provision (s.35A) similar to that in s.102 in that it speaks in terms of directions whereas the Family Law Act 1975 (Cth) includes provisions in respect of the Family Court (ss.26B and 37A) similar to that in s.103 in that they are in terms of delegation.
15.
The stated purpose of s.102 is to allow certain powers of the Court to be exercised by a Registrar: s.102(1). Subsection 102(2) specifies certain powers that may be exercised by a Registrar “if the Federal Circuit Court of Australia or a Judge so directs”. One of the enumerated powers is “a power of the Federal Circuit Court of Australia prescribed by the Rules of Court”: sub-s.102(2)(i).
16.
Subsection 102(6) provides that when a Registrar has the power under s.102(2) to exercise any power in any law of the Commonwealth, Rule or provision of the Act, a reference to the Court in the FCC Act, FCC Rules or any other law that relates to the exercise of that power is taken to be a reference to the Registrar.
17.
Subsection 103(1) provides that the Rules of Court may delegate to the Registrars “any of the powers of the Federal Circuit Court of Australia, including (but not limited to) all or any of the powers mentioned in subsection 102(2).” As will be seen, the option taken under this provision has been to delegate all of the powers mentioned in s.102(2).
18.
Subsection 103(7), like s.102(6), provides that, in any power delegated, the reference in any relevant provision to the Court is taken to be a reference to the Registrar. It will be necessary to return to these provisions in more detail later in these reasons.
19.
As Judge Street noted in Uddin, there are two further important provisions in Div.4 of Pt.7 of the FCC Act: ss.104(1) and 104(2). The first of these requires a Registrar to act independently. The second, together with s.104(3), enables the Court to review any exercise by a Registrar of a power under s.102(2) or one delegated under s.103(1).
20.
The Judges, or a majority of the Judges, of the Court are empowered to make Rules to make provision for, or in relation to, the practice and procedure to be followed in the Court and all matters and things incidental to such practice and procedure: FCC Act s.81(1). In light of that, the FCC Rules must advance the objects of the FCC Act itself which include the exercise of judicial power in as informal manner as possible and to enable the use of streamlined procedures: s.3(2) FCC Act. The FCC Rules expressly adopt these objectives as well as the assistance of the just, efficient and economical resolution of the proceedings: r.1.03.
21.
The two specific provisions in the FCC Rules which may operate to give the Registrars power to dismiss an application in the absence of a party are r.10.01, in particular, r.10.01(3)(s), and item 2(i) of r.20.00A.
22.
Part 10 of the FCC Rules is divided into three divisions:
i) 10.1 First court date;
ii) 10.2 Dispute Resolution; and
ii) 10.3 Notice of Constitutional matter.
This manner of division emphasises the importance of the first court date as being one of three critical matters in the conduct of proceedings. That importance is further emphasised by the content of the rules in Div.10.1.
23.
I note in passing that the term “first court date” is not defined in the Rules. The phrase simply means what it says: the first time at which the matter is listed, whether that is before a Judge or a Registrar.
24.
Division 10.1 is, in turn, divided into three parts: 10.01 “Directions and Orders”; 10.02 “Adjournment of first court date”; and 10.03 “Fixing date for final hearing”. The breadth of these provisions gives further emphasis to the importance placed by the FCC Rules on the first court date.
25.
The first Rule in the part, r.10.01(1) provides for what, in the ordinary course, must be done: “the Court or a Registrar is to give orders …”.
26.
The second and third provisions, rr.10.01(2) and (3) make provision for what the Court or Registrars may do. They neither purport to limit what must be done under r.10.01(1) nor are they limited by that provision. For example, the power to hear and determine all or part of the proceedings under r.10.01(2) goes well beyond the making of orders for the conduct of the proceedings. Similarly, the power to make an order for costs under r.10.01(3)(q) goes beyond an order for the conduct of proceedings. That suggests that the matters listed in r.10.01(3) are not all of the same kind.
27.
The question is whether the power in r.10.01(3)(s) to make orders in relation to “any other matter that the Court or Registrar considers appropriate”, includes the power to dismiss proceedings in the absence of the applicant.
28.
The plain words of that provision are broad enough to include such a power. The context supports that conclusion. As I have observed, the other powers in r.10.01(3) do not all purport to be of the same kind and so do not suggest a construction that would limit the broad power.
29.
The purpose of the FCC Act and Rules is to enable streamlined procedures and the just, efficient and economical resolution of proceedings. This purpose is advanced by a construction that allows a Registrar to exercise the power to dismiss at the first court date when an applicant is absent. The emphasis given to the first court date advances the purpose of streamlined procedures. That is also consistent with the limits in the FCC Act placed on interlocutory procedures, such as discovery and interrogatories (s.45) and the availability of powers to simplify and condense hearings (eg. ss.51, 55, and 62).
30.
By contrast, if r.10.01 were construed not to include the power to dismiss a proceeding if an applicant is absent from the first court date, the proceeding would be complicated. That is because they would have to be referred to a Judge to consider whether to make an order under r.13.03C(1)(c) or, for that matter, an order under any of the other orders found in r.13.03C(1). That would not be a referral under s.104(4) as envisaged by Judge Riley in Singh (at [25]) because that provision only applies when the Registrar is actually able to exercise the power in question.
31.
The procedure for referral to a Judge may be complicated by the usual requirement of procedural fairness of putting the applicant on notice that the referral was being made, and that the Judge might make an order dismissing the proceedings. The obligation to notify an applicant is not, in my view, necessarily overcome by the power of the Court to set aside an order made in the absence of a party: r.16.05(2)(a). Query, in any event, whether the Judge would be exercising the power under r.13.03C(1). On one view, that power is one that arises at the hearing (including the first court date) from which the applicant is absent. If that view were correct, which I do not need to decide, there would be no power to dismiss proceedings at a first court date at which a Registrar presides and from which the applicant is absent. Rule 13.03B, for example, would not assist.
32.
Such an outcome reveals that the narrower view of r.10.01(3)(s) would not advance the objects of the FCC Act and Rules, as well as the broader construction does and, for that reason, the broader construction is to be preferred.
33.
The next step in construction is to determine whether there are any other obstacles to the broad construction of the power given to Registrars under r.10.01. There are three possible obstacles, the first two of which were not the subject of any detailed submission by the Minister.
34.
The first is the existence of the more specific provision in r.13.03C(1)(c).
35.
In Anthony Hordern & Sons Limited v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 1 (Anthony Hordern) Gavan Duffy CJ and Dixon J said, at 7:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
(Emphasis added)
36.
In Minister for Immigration & Multicultural & Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 the principle in Anthony Hordern was considered in detail by Gummow and Hayne at [52] – [59]. Their Honours said, at [59]:
Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power,” or are with respect to the same subject-matter, or whether the general power encroaches upon the subject-matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
(Citations omitted)
37.
It could be said that the power in r.13.03C(1)(c) is restricted in the sense that, on its face, it is only exercisable by the Court and not by a Registrar. It might also be said that there is only one power in the FCC Rules to dismiss proceedings at a first court date when the applicant is absent. However, that is not the correct characterisation of the power in r.13.03C(1)(c). Essentially, that is because that power is not limited in its operation to first court dates but operates in respect of any hearing and, for that reason, cannot be said to come wholly within the ambit of the power in r.10.01 which is limited to first court dates. In any event, there is no true repugnancy between the two provisions. The fact that the power in r.13.03C(1)(c) can, on its face, only be exercised by the Court does not mean that both powers cannot be obeyed or would produce irreconcilable legal rights or obligations. For those reasons, the presence of r.13.03C(1)(c) does not derogate from the power in r.10.01 as I have construed it.
38.
The second possible obstacle is the Constitution. Section 71 of the Constitution vests the judicial power of the Commonwealth in the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The Court is a federal court. While Registrars are not Judges of the Court, there is no breach of the limits imposed by s.71 of the Constitution by an exercise of power by them so long as the judges of the Court continue to bear the major responsibility for the exercise of judicial power and the exercise of power by the Registrars is subject to a de novo review by the Court: Harris v Caladine (1990) 172 CLR 84; [1990] HCA 9.
39.
The Court has power to review decisions of the Registrars under ss.104(2) and (3) of the FCC Act which provide:
Registrars- additional provisions
…
(2) A party to proceedings in which a Registrar has exercised any of the powers of the Federal Circuit Court of Australia under subsection 102(2) or under a delegation under subsection 103(1) may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Federal Circuit Court of Australia for review of that exercise of power.
(3) The Federal Circuit Court of Australia may, on application under subsection (2) or on its own initiative, review an exercise of power by a Registrar under subsection 102(2) or under a delegation under subsection 103(1), and may make an order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
40.
The power to review is limited, on its face, to proceedings in which a Registrar has exercised any of the powers of the Federal Circuit Court “under s 102(2) or under a delegation under subsection 103(1).” The question is whether the power of a Registrar under r.10.01 falls within that description.
41.
Rule 10.01 is expressed neither in terms of a delegation nor direction. Rather, it appears to be a direct conferral by the Rules of the stated powers on both the Courts and Registrars. The rule making power is vested by s.81 of the FCC Act in the “Judges, or a majority of them”. The question is whether rules made by the Judges or a majority of them may be construed to be a direction by the “Federal Circuit Court of Australia or a Judge” within the meaning of s.102(2) or a delegation under s.103(1).
42.
These provisions must be read and construed subject to the Constitution: s.15A Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act). That means that, where more than one interpretation is available, the Court should favour the interpretation that ensures the constitutional validity of the provision: Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64 at 14 (Mason CJ).
43.
The word “Judge” in s.102(2) also means “Judges” (s.18A Acts Interpretation Act), so that Rules made by the Judges or a majority of Judges may be understood to be a direction within the meaning of s.102(2). If that is the case, the availability of review under s.104 of the FCC Act ensures the constitutional validity of r.10.01. To construe s.102(2) to exclude the FCC Rules would, at least arguably, mean that r.10.01 was invalid to the extent that it empowers the Registrars to exercise judicial powers. That construction is to be avoided.
44.
One difficulty with that conclusion is that a direction under s.102(2) can only be in respect of the powers listed in the paragraphs to that sub-section. One of those, sub-s.102(2)(i), refers to a power of the Court “prescribed by the Rules of the Court.” This creates an inherent circularity in the conclusion that a direction can be given by way of the FCC Rules. However, such circularity is only one indication against a particular construction. In my view, the imperative of s.15A of the Acts Interpretation Act requires the construction regardless of that indication.
45.
Another path to the same conclusion is that the powers in r.10.01 are “prescribed by the Rules” and so fall within the delegation under s.103(1) found in item 2(i) of r.20.00A of the FCC Rules. On that basis, the availability of review of a decision would ensure the constitutional validity of r.10.01.
46.
For those reasons there is no constitutional obstacle to the construction of r.10.01 outlined above.
47.
On a proper construction of the Rules, the powers of the Registrars under r.10.01 include the power to dismiss an application if the applicant does not appear at the first court date.
48.
The other possible basis for the exercise by a Registrar of the power to dismiss proceedings for non-appearance is item 2(i) in the table set out in r.20.00A. That was the provision relied on by Judge Street in Uddin. I will consider that provision by reference to his Honour’s reasons.
Uddin v Minister for Immigration & Border Protection [2017] FCCA 500
49.
In Uddin the matter had been listed for a first court date before a Registrar of the Court and, when the applicant did not appear, the matter was referred to Judge Street. His Honour explained that that course had been taken because a Judge of the Court had, on 17 February 2017, made the following declaration in the matter of BJC16 v Minister for Immigration & Border Protection (MLG1164/2016):
The order made by the registrar on 9 November 2016 dismissing the proceedings for non-appearance was invalid as there was no appropriate delegation.
50.
No reasons appear to have been given for that declaration[4]. Judge Street found in Uddin, at [7], that there was no power to make such a declaration and held, in any event, that the proposition that there is no delegated legislation permitting a Registrar of the Court to exercise the powers of this Court under the Rules was clearly wrong: [8].
51.
It is an interesting question whether the declaration itself was invalid. It is unusual, to say the least, for any Court to engage in judicial review of its own decisions (see, for example, Bird v Free (1994) 126 ALR 475; [1994] ALD 553 at 478 and Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554; [2000] FCA 599 at [14] – [17]), let alone for an inferior court to do so. Unlike the Federal Court, apart from its jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth), this Court has no broad or general power of judicial review and the power under that Act is limited to the review of decisions of an administrative nature.
52.
The critical reasoning in Uddin is contained in the following passages of his Honour’s reasons:
[15] … Section 102(2) of the Federal Circuit Court Act expressly refers to the fact that the powers of the Federal Circuit Court of Australia may be exercised by a Registrar of the Court and relevantly, under paragraph (i), a power to exercise a power of the Court prescribed by these Rules.
[16] The Federal Circuit Court Rules have a further provision that, relevantly, prescribes the Registrar’s powers, found in Part 20 of the Rules Part 20, r.20.00A(1)(Item 2(h) expressly provides that a Registrar has power to make an order exempting a party to proceedings from compliance with a provision of these Rules.
Application of the Registrars’ powers and r.13.03C(1)(c)
[17] The Federal Circuit Court Rules prescribe various powers of the Court, including the powers found in Division 13.1A, which includes r.13.03C of the Federal Circuit Court Rules. The effect of the delegation found in Part 20, r.20.00A of the Federal Circuit Court Rules is to confer on the Registrar the powers of the Court that are prescribed in the Federal Circuit Court Rules. Rule 13.03C Federal Circuit Court Rules is one of the powers of the Court prescribed by the Rules.
[18] In essence, what r.20.00A(1)(Item 2(i) of the Federal Circuit Court Rules does is to confer on the Registrar the powers that the Court has under the Federal Circuit Court Rules. …
53.
The FCC Rules provide for Registrars’ powers in Pt.20. There are two sections in this Part: the first deals with the delegation of power under s.103(1) and the second deals with reviews under s.104(2).
54.
Rule 20.00A, which falls in the first section of Pt.20, relevantly provides:
Delegation of powers to Registrars
(1) For subsection 103(1) of the Act, a power of the Court mentioned in an item of the following table is delegated to a Registrar who is approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of power.
Item
Legislative provision
Description of power (for information only)
…
2
Subsection 102(2)
All of the following
…
(i) to exercise a power of the Court prescribed by these Rules
55.
The history of this Rule can be briefly summarised. At first, the delegation of powers under s.103(1) of the FCC Act was dealt with in separate Rules, namely, the
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The applicant applied for a Temporary Business Entry (Class UC) visa on 18 January 2016. On 15 April 2016 a delegate of the Minister made a decision not to grant the applicant the visa and notified the applicant in writing of that decision on the same day. On 12 July 2016 the applicant applied to the Administrative Appeals Tribunal for review of that decision. By letter dated 25 July 2016 the Tribunal informed the applicant that it considered that his application for review was invalid because it was made outside the time prescribed by the Migration Act 1958 (Cth) (Migration Act), and because he had not paid the application fee. The applicant replied to the Tribunal’s letter, accepting that his application was late, but arguing that the delay was not his fault and that he had been denied procedural fairness. On 12 August 2016 the Tribunal decided that it had no jurisdiction for the reasons it had given in its letter to the applicant. On 16 August 2016 the applicant applied to this Court for judicial review of the Tribunal’s decision. The matter was listed for a first court date before a Registrar on 10 November 2016. The applicant did not appear on that day and the Registrar made an order under r.13.03C(1)(c) of the FCC Rules dismissing the application for that reason. The applicant then applied for the Registrar’s orders of 10 November 2016 to be set aside under r.16.05 of the FCC Rules. That application was heard by the Registrar on 8 December 2016 and dismissed. The applicant has now applied for review of the Registrar’s decision to refuse to make an order under r.16.05. That application first came before me on 15 February 2017. At that time, I raised the question whether the Registrar had the power to dismiss an application for failure to appear, or to set aside such an order. The matter was adjourned in order for submissions to be prepared in relation to that question. Both Singh and Uddin were decided before this matter next came on for hearing. I will consider those decisions in due course. However, first, I will consider for myself the question whether, on the proper construction of the FCC Rules, the Registrar had the power to dismiss the application because the applicant was absent from the first court date. The first matter to consider is the plain meaning of the text of the FCC Rules. That meaning, of course, can be affected by the context including the scope and purpose of the Rules as well as the fact that they are Rules and not primary legislation[2].[2] See Environment Protection Authority v Orchard Holdings (NSW) Pty Ltd (in Liq) (2014) 86 NSWLR 499 at [44]; Day v Harness Racing New South Wales [2014] 88 NSWLR 594 at 610 [79]; but see Stephen Argument, ‘Delegated legislation not of lesser importance to primary legislation – but is it subject to the same standards of scrutiny?’ (2015) 26 Public Law Review 137. The provisions of the FCC Act relating to Registrars of the Court are found in Div.4 of Pt.7 of the FCC Act. There are two sources of powers of Registrars in that Division: ss.102 and 103. Section 102 deals with powers and s.103 deals with delegation of power. It is not entirely clear why there are two separate provisions or, at a high level of generality, what the difference between them is. The Federal Court of Australia Act1976 (Cth) (FCA Act) includes a provision (s.35A) similar to that in s.102 in that it speaks in terms of directions whereas the Family Law Act1975 (Cth) includes provisions in respect of the Family Court (ss.26B and 37A) similar to that in s.103 in that they are in terms of delegation.