KUMAR v Minister for Immigration
[2017] FCCA 1116
•6 June 2017
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 |
| Cases cited: Anthony Hordern and Sons Limited v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 1 Chamberlain v The Queen (1983) 72 FLR 1; (1983) 46 ALR 493 Commissioners of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22 Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211; [1999] NSWCA 416 Singh v Minister for Immigration & Border Protection [2017] FCCA 522 Stuke v Rost Capital Group Pty Ltd (2011) 202 IR 442; [2011] FMCA 79 Uddin v Minister for Immigration & Border Protection [2017] FCCA 500 Articles and other material cited: 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 |
| Applicant: | SANJEEV KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2214 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 27 March 2017 |
| Date of Last Submission: | 1 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Ms M Youssef (Mona Youssef & Associates) |
| Counsel for the First Respondent: | Mr M Cleary |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
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
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.
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.
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
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).
[1] Transurban City Link v Allan (1999) 95 FCR 553; [1999] FCA 1723.
This Court has adopted a similar practice: see for example, Stuke v Rost Capital Group Pty Ltd (2011) 202 IR 442; [2011] FMCA 79.
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
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 Registrars’ powers to dismiss for non-appearance at a 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.
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).
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.
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).
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.
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).
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.
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.
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.
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.
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.
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 …”.
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.
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.
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.
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).
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.
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.
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.
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.
The first is the existence of the more specific provision in r.13.03C(1)(c).
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)
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)
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.
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.
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.
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.
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).
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).
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.
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.
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.
For those reasons there is no constitutional obstacle to the construction of r.10.01 outlined above.
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.
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
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.
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].
[4] There is an appeal pending in the Federal Court of Australia in respect of that matter: Minister for Immigration & Border Protection v BJC16 (VID192/2017).
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.
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. …
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).
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
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 Federal Magistrates Court (Delegation to Registrars) Rules2000 (Cth). Rule 1.4(3) of those Rules simply delegated to the Registrars “the powers mentioned in subsection 102(2) of the Act”. In 2003 that Rule was incorporated[5] into the FCC Rules as a new rule: r.20.00A. The blanket reference to s.102(2) of the FCC Act was amended in 2008 by the insertion of the table in mostly the same form as it currently stands: see Federal Magistrates Rules 2008 (No.2) (Cth). In effect, however, there has been no change. The rule now effectively incorporates all of the powers referred to in s.102(2) including, as the table at [54] shows, sub-s.102(2)(i), being any “power of the Court prescribed by the Rules.”
[5] By operation of the Federal Magistrates Court Amendment Rules 2003 (No.1) (Cth).
The reasoning of Judge Street, then, in Uddin can be summarised as follows: Rule 20.00A(1) delegates to a relevant Registrar[6] any “power prescribed by the Rules.” Rule 13.03C is a power prescribed by the FCC Rules. Therefore, the power under r.13.03C(1)(c) to dismiss an application if an applicant is absent from a hearing is delegated to the Registrar.
[6] That is, a Registrar who has been approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of the power.
This reasoning relies on reading the words “power prescribed by these Rules” to mean precisely what they say. Another possible construction would be to read the delegation as limited to “any power prescribed by these Rules for the purposes of this provision”. If that is the correct construction then the decision in Uddin would be incorrect and the Registrars would not have any delegated power to dismiss proceedings pursuant to r.13.03C(1)(c).
The broader construction favoured by Judge Street entails an element of redundancy. Why, it may be asked, is there any need to delegate any other specific power under the FCC Rules[7], if all of the powers in the FCC Rules have been delegated by item 2(i)? In order to avoid that redundancy, it is arguable that it is necessary to limit item 2(i) in the manner suggested in [57] above.
[7]As the majority of item 2 in the table in r.20.00A appears to do.
The combination of ss.102 and 103 appears to have created, or at least, enhanced this redundancy. The more straightforward provisions in the FCA Act and Federal Court Rules 2011 (Cth) (FCA Rules) highlight this. Section 35A of the FCA Act, like s.102(2) of the FCC Act, provides that certain powers of the Federal Court may “if the Court or a Judge so directs, be exercised by a Registrar.” The powers referred to are, again, like those set out in s.102(2) of the FCC Act. They include, at sub-s.35A(1)(h) “a power of the Court prescribed by the Rules of Court.” Unlike the FCC Rules, the FCA Rules do prescribe powers specifically for the purposes of sub-s.35A(1)(h).
Rule 3.01(1) of the FCA Rules prescribes certain powers “For section 35A(1)(h).” In Dahler v Australian Capital Territory [2016] FCA 257 (Dahler) Katzmann J said, at [25], that “Rule 3.01 provides that only the powers listed in that rule are prescribed for the purposes of s 35A(1)(h).”[8]
[8] See also Reaper v Luxton [2016] FCA 784 at [12].
The FCC Rules, by contrast, do not expressly prescribe any powers for the purposes of s.102(2) but, rather, only for the purposes of s.103(1). While item 2 in r.20.00A is addressed to s.102(2) of the FCC Act, r.20.00A itself is expressly made “[f]or subsection 103(1) of the Act”.
On the other hand, I have concluded that, while not expressly stated to be so, r.10.01 was a direction made pursuant to s.102(2). While this conclusion appears to be inconsistent with one statement made by Katzmann J at [25] in Dahler[9], her Honour was not construing the FCC Act or Rules and there was no constitutional element in that part of her decision. My conclusion in this respect arguably means that at least r.10.01 is picked up by item 2(i) of r.20.00A.
[9] “Self-evidently s.35A does not apply to a power given directly to a Registrar, such as the power conferred by r.40.21(2) to direct that the taxation of the bill proceed.”.
However, if a power is already given by virtue of a direction under s.102(2), there is no need for it to be delegated by r.20.00A.
Taking into account that circularity, in my view the preferable construction of item 2(i) in r.20.00A is that it only applies to powers prescribed for the purposes of s.103(1) of the FCC Act. Unlike a narrow construction of r.10.01, that construction does not undermine the objects of the Act and Rules. Rather, it allows for the availability of further flexibility by express or implicit directions under s.102(2). Given the scope of that provision, there is no need to read r.20.00A any more broadly.
If, however, I am wrong about the construction of r.10.01, the broader construction of r.20.00A would involve less circularity and, given its plain terms, I would agree with Judge Street that it provides for the exercise by the Registrar of the power under r.13.03C(1).
Singh v Minister for Immigration & Border Protection [2017] FCCA 522
In Singh, a Registrar of the Court dismissed a matter at its first court date because the applicant was absent. In her judgment, Judge Riley noted, at [1], that the applicant then filed an application for reinstatement. I take that to mean that he filed an application for an order under r.16.05 of the FCC Rules. It is not entirely clear how the matter then came before a Judge of the Court and, for that reason, what application the Court had before it. Nevertheless, the question addressed by the Court was whether the Registrar had the power to dismiss the matter for non-appearance under r.13.03C(1)(c) of the FCC Rules or under any other provision: [2]. Her Honour answered the question in the negative and made the following declaration:
The order made by a registrar on 7 December 2016 that the application filed on 1 June 2016 be dismissed for non-appearance was invalid.
Her Honour’s reasons were summarised succinctly at [30] of her reasons:
All in all, I am not persuaded by the Minister’s arguments. It seems to me that the registrars were correct in concluding that the Rules in their present form do not give the registrars power to dismiss for non-appearance. …
Apart from a brief reference to r.20.00A at [8] of her reasons, and to the decision in Uddin at [31], her Honour’s reasons are addressed to the arguments put forward by the Minister. As will be seen, I agree with some, but not all, of her Honour’s responses to those arguments. It is necessary to deal with each of those in turn.
The Minister relied on two alternative arguments in Singh.
The first argument was as follows. Rule 10.01 makes specific provisions in respect of first court dates including the following:
Directions and orders
(1)At the first court date, the Court or a Registrar is to give orders or directions for the conduct of the proceedings.
(2)Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceedings.
(3)The Court or a Registrar may make orders or directions in relation to the following:
…
(s) any other matter that the Court or Registrar considers appropriate.
These powers are expressed in terms of great generality which, it was argued, are apt to confer upon the Registrar the power to dismiss for non-appearance. The fact that r.13.03C makes express provision for that power without reference to the Registrars does not change that conclusion because of operation of ss.102(6) and 103(7). Those provisions are referred to in [16] and [18] above. It is convenient at this point to set the latter out in full:
Delegation of powers to Registrars
…
(7)The provisions of this Act, the Rules of Court and any other law of the Commonwealth that relate to the exercise by the Federal Circuit Court of Australia of a power that is, because of a delegation under subsection (1), exercisable by a Registrar, apply in relation to an exercise of the power by a Registrar under the delegation as if references in those provisions to the Federal Circuit Court of Australia were references to the Registrar.
The Minister argued that r.13.03C is a provision of the FCC Rules that “relate[s] to the exercise by the Federal Circuit Court of Australia of a power [r.10.01] that is, because of subsection (2), exercisable by a Registrar” and so, by operation of s.103(7), the word “Court” is taken to include a Registrar.
Judge Riley rejected that argument at [20]:
[20]Subsection 102(6) of the Act and its analogues do not give additional powers to the court or a registrar. Subsection 102(6) of the Act and its analogues mean that any conditions on the exercise of a power by a judge of the court also apply when a registrar exercises that power.
In rejecting the first of the Minister’s arguments, Judge Riley appears to have construed the words “relate to” in ss.102(6) and 103(7) as being words of limited import, namely, as requiring some limitation placed on the power exercisable by the Registrar. I cannot, with respect, agree with that construction.
The phrase “relate to” and its cognates are ones of great width. It has been said that ‘[t]here is no expression more general or far-reaching’ than ‘relating to’: Commissioners of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22, at 26 (Lord Macnaghten). Like the phrases “in relation to” and “in connection with” it is a prepositional phrase of indefinite content: O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; [1990] HCA 16 at 376 (McHugh J); Kostas v HIA Insurance Services Pty Ltd (2010) CLR 390; [2010] HCA 32 at [24] (French CJ). The phrase denotes a relationship between two matters, the nature and extent of which takes its content from its statutory context: K & M Prodanovski v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202; see also Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211; [1999] NSWCA 416, at 224-225 [56] (Fitzgerald JA).
There is nothing in the statutory context of ss.102(6) and 103(7) that requires the relationship described by the words “in relation to” to be limited to one in which a condition is imposed by one provision on the power exercisable due to another. No doubt, a provision which did impose conditions on the exercise of a particular power would “relate to” the exercise of that power; however, it is wrong, in my view, to restrict such a general phrase to such a circumstance.
One example of a provision of the FCC Rules which I consider might, subject to one possible qualification, “relate to” the exercise of a power exercisable by a Registrar is r.13.03A(1)(a). Rule 13.03A(1)(a) provides that an applicant is in default for the purposes of r.13.03B if the applicant fails to comply with an order of the Court in the proceeding. That does not impose a condition on the exercise of, say, the power of the Registrar to make directions under r.10.01, but it does act in aid of that power by providing for a summary means of enforcement of any breach of an order made under it.
The qualification mentioned at [77] is that either ss.102(6) or 103(7) of the FCC Act must apply to r.10.01. In order for s.102(6) to apply, the power in r.10.01 must be exercisable by a Registrar because of s.102(2). In order for s.103(7) to apply, the power must be exercisable by a Registrar because of a delegation under s.103(1).
For reasons set out above, the powers in r.10.01 are exercisable by Registrars because of s.102(2) or, alternatively, s.103(1). For that reason, either ss.102(6) or 103(7) applies to that rule.
Sections 102(6) and 103(7) act in aid of the exercise of powers exercisable by Registrars (whether that be by direction or delegation). They mean that other provisions apply to that exercise even though there is no express mention of the Registrar in the provision.
Further, a power delegated by the Rules of Court under s.103(1), when exercised by a Registrar, is taken for all purposes, to have been exercised by the Court or a Judge, as the case requires: s.103(2). This supports the conclusion that the relationship between the power to be exercised, and the related provision, is a broad one and the power may be any power that assists in, gives effect to or otherwise affects the exercise of the power.
Although there is no equivalent of s.103(2) in respect of powers exercisable because of a direction under s.102, the fact that ss.102(6) and 103(7) are almost identical suggests that they have the same purpose and must be construed to have the same effect. In any event, the consequential effect of the review provisions in ss.104(3) and 104(4) of the review provisions is to ensure that an order, though made by a Registrar, “can still be seen to be a decision of the Court”: Trustees of the Franciscan Missionaries of Mary v Weir (2000) 98 FCR 447; [2000] FCA 574 at [20] (dealing with a provision of the FCA Act, the equivalent of s.102 of the FCC Act).
The powers under r.10.01 are exercisable by Registrars. Those powers arise at the first court date, and include;
i)the power to give orders and directions for the conduct of the proceeding (r.10.01(1));
ii)to hear and determine all or part of the proceedings (r. 10.01(2)); and
iii)to make orders or direction in relation to any other matter that the Registrar considers appropriate (r.10.01(3)(s)).
The question is whether r.13.03C(1) “relates to” any of those powers in the sense that it assists in, or affects, the exercise of those powers. In my view it does not. Rather, it provides for a different power that is exercisable only by the Court and both at first court dates and other hearings.
That said, the effect of ss.102(6) or 103(7) is, in my view, not critical to the proper construction of r.10.01. The Minister only relied on it to overcome what he posited at the potential friction between the generality of that rule and the more specific r.13.03C(1). Her Honour did not expressly deal with the underlying submission about the breadth of r.10.01. I consider that, for the reasons I have given, that the underlying submission was correct.
The Minister’s alternative argument was that r.10.01 should be regarded as the leading provision in respect of first court dates so that r.13.03C should not be regarded as abstracting the power of Registrars to act when a party is absent from a first court date. This argument was based on the approach to statutory construction of apparently conflicting provisions discussed in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky), in particular at [70] (McHugh, Gummow, Kirby and Hayne JJ).
The Minister made four points in support of this contention. The first was that the text of the FCC Rules was equally consistent with both rr.10.01 and 13.03C being the leading provision. Judge Riley rejected that argument, saying, at [23];
… r.13.03C of the Rules is clearly the leading provision in relation to dismissals for non-appearance, and the general powers in r.10.01 of the Rules that may be exercised by registrars at first returns do not derogate from that.
It appears to me that the analysis by reference to Project Blue Sky was inappropriate. There is in fact no conflict between rr.10.01 and 13.03C in the same way that there was a conflict between cl.9 of the Australian Content Standard and Articles 4 and 5 of the Protocol to the Australia New Zealand Closer Economic Relations Trade Agreement in Project Blue Sky. The issue appears to be closer to, although not precisely the same as, the question that arose in Anthony Hordern. As I have explained, the principles in Anthony Hordern do not apply here and I conclude that the existence of the power in r.13.03C(1) does not affect the breadth of the powers in r.10.01.
The Minister’s second point was that the original version of the FCC Rules gave Registrars express power to dismiss for non-appearance and that the later amendments that appeared to remove that power, did not in fact have that effect. Judge Riley rejected that argument, saying that she did “not accept that the mere fact that the registrars had power to dismiss for non-appearance at an earlier point in time means that the Rules can be interpreted to given that power now”: see Singh at [24].
Her Honour’s statement was correct as far as it went. However, it was not a complete answer to the Minister’s submission. The submission was just one of several that supported the general submission that r.10.01, understood in its context, should be construed to include the power to dismiss for non-appearance. One aspect of that context was the history of the current form of the relevant FCC Rules. Taken at that level, the fact that the Registrars had, from the beginning, been given the power to dismiss proceedings at first court dates does lend support to the construction proffered by the Minister.
The Minister’s submissions were as follows.
[19]… In the original Federal Magistrates Court Rules 2001, rule 10.01 relevantly provided:
(1)At the first court date, the Court or a Registrar is to give orders or directions for the conduct of the proceeding.
(2)Without limiting the generality of subrule (1), the Court or a Registrar may do any of the following:
(a)hear and determine all or part of the proceedings;
(b)if no applicant appears, strike out or dismiss the application or make any other order that the Court or Registrar thinks fit;
(c)if no respondent appears, make the order sought by the applicant or make any other order, or give any direction, the Court or Registrar thinks fit.
[20]There was no separate provision about the making of orders for non-appearance. As at 2001, therefore, Registrars had the power to dismiss at a first court date for non-appearance. This was seen as important. The Explanatory Statement to the Rules explained that “[t]his rule covers a significant and extensive area of the work of the Court.”
[21]A specific rule about default of appearance was inserted into the Rules, as rule 13.03A, by the Federal Magistrates Court Amendment Rules 2003 (No 1). That rule provided:
If a party to a proceeding is absent from a hearing (other than the first court date), the Court may do any of the following:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing unless:
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the Court directs are taken;
(c) if the party absent is an applicant or a respondent who has made a cross-claim – dismiss the application or the cross-claim;
(d)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
NoteFor default of appearance at the first court date, see subrule 10.01(2).
[22]The Explanatory Statement made clear what is apparent from the face of the provision in any event: “New rule 13.03A sets out the powers of the Court if a party to a proceeding is absent from a hearing, other than the first court date which is dealt with under subrule 10.01 (2).”
[23]Accordingly, as at 2003, the power of Registrars to dismiss for non-appearance continued in existence.
[24]In 2006, the Federal Magistrates Court Amendment Rules 2006 (No 1) made two amendments of present significance.
[24.1]First, it deleted the original rule 10.01(2) and replaced it with the following:
Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceedings.
[24.2]Secondly, it amended rule 13.03A so that the rule did not exclude the first court date; to the contrary, it now provided that it was to apply at a hearing “(including a first court date)”.
[25]The Explanatory Statement explained that the first change was “a drafting amendment to better clarify the subrule”. It explained the second change as being “related” to the first. It continued:
The provisions about default of appearance at a first court date have been removed from subrule 10.01(2), and rule 13.03A now deals with default of appearance of a party generally.
[26]In the First Respondent’s submission, there is nothing in this context to indicate that it was intended, by these amendments, to remove from Registrars the power to dismiss for non-appearance at the first court date. These were mere drafting amendments only.
[27]To complete the history, although what remains is of no present importance, rule 13.03A became rule 13.03C in the Federal Magistrates Court Amendment Rules 2008 (No 2), which in turn formed the foundation for the current Federal Circuit Court Rules 2001.
[28]This history shows that Registrars had the power to dismiss for non-appearance at the first court date. While the amendments that have been made appear to take away that power, the history does not indicate that that was the intention. The history is consistent with amendments being made for the purposes of drafting clarity only.
Those arguments may be accepted to a certain extent; however, what stands against the Minister is that the express power that once existed was taken out of the rule concerning Registrars and first court dates and put into another rule that did not include Registrars. That aspect of the history of the Rules might suggest that there was a deliberate exclusion of Registrars from the power to dismiss. However, that history is only one factor that must be considered in construing the Rules.
In my view, the other factors I have discussed above outweigh that possible conclusion. In particular, when due weight is given, as it must be, to the objects of both the FCC Act and the FCC Rules, the changes made to rr.10.01 and 13.03C(1) do not necessitate the conclusion that the power was, in fact, taken from the Registrars.
The Minister’s third point was that, if the Registrars did not have the power to dismiss proceedings under r.13.03C(1)(c), they could not logically have any of the other powers in r.13.03C(1), including the power to adjourn the proceedings. Her Honour found that that was not insurmountable because, “under s.104(4) of the Act, the registrar can refer the matter to a judge”: see Singh at [25].
In this, her Honour was, with respect, clearly wrong. Section 104(4) only applies where the Registrar has the power to exercise a particular power. For that reason, it does not overcome the consequence posited by the Minister. That consequence, as I have observed, is inconsistent with the objects of the FCC Act and Rules. It is not a mere matter of inconvenience as suggested by Judge Riley in Singh at [32].
The Minister’s fourth point in support of the alternative argument was that, under r.10.01(2), Registrars are expressly empowered to hear and determine matters at first return and it was implicit in that power that Registrars have power to dismiss for non-appearance. Judge Riley rejected this point too. She said, at [26]:
It does not seem to me that a power to hear and determine extends to dismissing for non-appearance. There is a qualitative difference between hearing and determining a matter and dismissing it for non-appearance without any consideration of the merits.
Again, her Honour’s reasons are correct as far as they go. To “hear and determine” a matter requires consideration of the merits of the application. However, that did not completely answer the Minister’s submission, which was that the power to hear and determine carried with it the implied power to dismiss for non-appearance. I do not agree with the submission. While I would accept that the power to hear and determine might include or at least imply the power to hear and determine the matter in the absence of the party, it does not include the power to dismiss simply for non-appearance. That is not a “hearing” of a matter and it is not necessary to imply that power in order to give full effect to the stated power. Thus, while I consider that her Honour’s reasons did not fully deal with the Minister’s submission, I agree with her that r.10.01(2) does not carry any implied power to dismiss for non-appearance.
The Minister also argued that the power in r.10.01(1) to give orders for the conduct of the proceedings also entailed the power to dismiss for failure to appear. Her Honour rejected that, saying that orders and directions for the conduct of a matter concern the manner in which a matter is to be run; whereas an order dismissing a matter for non-appearance terminates it: [27]. The Minister contended in reply to that reasoning that the Registrar’s order was not final because an applicant could seek reinstatement; however this contention was rejected on the basis that, while the order dismissing the application for non-appearance stands, it does terminate the proceeding: [28]. I agree with her Honour’s reasons in this respect.
Judge Riley also rejected the contention that s.15 of the FCC Act empowered the Court to make such orders as it considers appropriate because it relied on the s.106(2) [sic: 102(6)] argument which had already been rejected: Singh at [29]. For the reasons I have given, I disagree with her Honour’s construction of s.102(6); however, I agree that that provision does not assist the Minister’s argument. Section 15 does not “relate to” the Registrars’ powers under r.10.01 in the relevant sense, but rather to the Court’s power in respect of matters in which it has jurisdiction.
Judge Riley next referred to the decision in Uddin but remained of the view, based on the arguments that were before her, that the FCC Rules did not give the Registrars power to dismiss for non-appearance: [31].
Uddin did not deal with the arguments that were before Judge Riley, but only with the effect of r.20.00A. Her Honour did not explain why she did not accept the reasoning of Judge Street in that respect.
Finally, her Honour noted that the decision would have practical consequences, but noted that the rule of law required that courts not contort the law to avoid inconvenience. As I have already observed, the real point was not one of inconvenience, but the advancement of the objects of the FCC Act and Rules.
Overall, having taken a cautious approach to her Honour’s reasons, I am convinced that her decision was clearly wrong in the sense discussed in the decisions of the Full Court of the Federal Court referred to above. For that reason, I consider that I should not follow the decision in Singh but that I should resolve this matter on the basis of the construction at which I have arrived for the reasons given at [13] – [48] above.
Consideration
The application before the Court is for review of the Registrar’s decision not to exercise the power under r.16.05(2)(a) to set aside the order dismissing the application at the first court date. I note that, while the Registrar’s orders was expressed to have been made pursuant to r.13.03C(1)(c), and the Registrar did not have power under that Rule, that does not invalidate the order because the power existed under another provision of the Rules.
While r.16.05 in its terms only refers to the “Court”, I am satisfied that the Registrar had the power under r.16.05(2) because of ss.102(6) of the FCC Act. The power to set aside an order clearly “relates to” the exercise of power to make the order in the sense discussed above. My review of that power is “de novo”.
There are two matters in these proceedings that are pertinent to the exercise of the power to set aside the order dismissing the proceedings: the reasons, if any, for the applicant’s absence at the first court date, and the prospects of success of the substantive application.
The applicant did not give any evidence to explain his failure to attend the first court date, but his solicitor stated that it was because nobody had told the applicant of the date and so he did not know about it. Even if I were to accept that statement in the absence of evidence, which I do not, and were to accept that it was a reasonable excuse for the applicant’s absence, it would make no difference to my decision. For the following reasons, the substantive application has no prospects of success and so, regardless of the reason for the applicant’s absence at the first court date, I would dismiss this application.
Manner of applying for review
The applicant conceded that his application to the Tribunal was outside the time prescribed under s.347 of the Migration Act and reg.4.10 of the Migration Regulations 1994 (Cth). However, he argued that the Tribunal had the power to hear his application under s.29(8) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The relevant subsections of s.29 provide:
…
(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
That provision is found in Pt.IV of the AAT Act. The provisions in that Part do not apply in relation to a proceeding in the Migration and Refugee Division: s.24Z AAT Act. The Tribunal’s powers to review a decision such as the one made by the delegate in this case may only be exercised in the Tribunal’s Migration and Refugee Division: s.336N(2) Migration Act. For the power of the Tribunal to extend time under s.29(8) of the AAT Act did not apply in the circumstances of this case.
The Tribunal only has jurisdiction to review a relevant decision if an application is properly made under s.347 of the Migration Act: s.348(1). In order to be properly made, an application must be made within the time prescribed: sub-s.347(1)(b). As the applicant concedes, his application was not made within that time. It was not properly made and the Tribunal had no jurisdiction.
For those reasons, I refuse to set aside the orders made by the Registrar dismissing the proceedings at the first court date and dismiss the application for review.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 6 June 2017
[3] See also Plaintiff M70/2011 v Minister for Immigration & Citizenship (2011) 85 ALJR 891 at 907; [2011] HCA 32 [50]-[51] per French CJ, 913-914 [84] per Gummow, Hayne, Crennan and Bell JJ, 940 [236] per Kiefel J.
2
29
15