Megase v Minister for Immigration
[2018] FCCA 3682
•12 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MEGASE v MINISTER FOR IMMIGRATION | [2018] FCCA 3682 |
| Catchwords: MIGRATION – Mandatory cancellation of visa pursuant to s 501 of the Migration Act 1958 (Cth) – application to extend time under s 477 of the Act – whether the applicant was lawfully notified under s 501CA(3) of the Act – whether the giving of the notice was invalid for want of delegated authority – actual authority under s 497 of the Act – implied authority – no satisfactory explanation for the delay – insufficient merits to warrant necessary an extension of time in the administration of justice – the application for an extension of time would otherwise have been dismissed – no migration decision – no jurisdiction. |
| Legislation: Migration Act 1958 (Cth), ss.474, 476, 477, 497, 501, 501CA Migration Regulations 1994 (Cth), r. 2.55 |
| Cases cited: Aciek v Minister for Immigration & Border Protection [2017] FCCA 3237 |
| Applicant: | SAKKA PAPPOE MEGASE |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1946 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 12 December 2018 |
| Date of Last Submission: | 12 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Yu |
| Solicitors for the Applicant: | Salvos Legal |
| Counsel for the Respondent: | Mr D Hughes |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The further amended application is dismissed.
The applicant pay the respondent’s costs including the reserved costs fixed in the amount of $7,206.00.
DATE OF ORDER: 12 December 2018
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1946 of 2017
| SAKKA PAPPOE MEGASE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Background
This is an application purportedly within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a notification given on 6 December 2016 in compliance with s 501CA(3) of the Act of a cancellation under s 501(3A) of the Act.
The proceedings were commenced on 16 June 2017 and, accordingly, even if within the Court’s jurisdiction will require an extension of time under s 477 of the Act. The principles under s 477 of the Act are not in dispute and the application relevantly seeks an extension of time in accordance with the requirements of s 477(2) of the Act. The applicant proffered as an explanation in relation to being in detention and needing to obtain legal advice, being illiterate and suffering from a medical condition. The evidence has been expanded upon in support of the explanation for the delay. The delay is not insignificant and, whilst the applicant’s circumstances are unfortunate, the Court does not regard them of themselves as a satisfactory explanation for the six-month delay.
The Court must however consider whether it is necessary in the interests of the administration of justice to extend time under s 477 of the Act. In that regard, the Court is considering the merits of the application at a preliminary impressionistic level. An impressionistic level does not prevent the Court from making findings in respect of the law in the context of considering the merits of the proposed grounds.
In the present case, an issue has been raised in respect of jurisdiction which the Court must first address. The first respondent has submitted that the notification under s 501CA(3) of the Act is not a decision of an administrative character within this Court’s jurisdiction as a migration decision pursuant to s 474 of the Act:
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
"privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
(5) The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.
(6) A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non-privative clause decision.
(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):
(a) a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351 or 417 or subsection 503A(3);
(d) a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.
There are two other decisions of judges of this Court suggesting that the notification under s 501CA(3) of the Act is a migration decision. Neither decision addresses the importance of the words “a decision of an administrative character.”
A decision of administrative character is different from a procedural step. The distinction between administrative and procedural was made plain by the learned Mason CJ in Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321. The same distinction has been acknowledged by the learned and much admired Conti J in Chung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 442 at [18] and [19].
Judge Egan in EFX17 v Minister for Immigration & Border Protection & Anor [2018] FCCA 3179 (“EFX17”) focussed upon the breadth of the scope of the work done by s 474(3)(g) of the Act. There is also broad scope to the work done by s 474(3)(h) of the Act. That scope however is confined by the introductory words in s 474(2) of the Act, referring to a decision of an “administrative character.” No meaning to those words was given by the learned Judge Egan. Judge Egan’s decision holding that there was a jurisdiction, in my opinion, is plainly wrong.
Insofar as Judge Manousaridis in Aciek v Minister for Immigration & Border Protection [2017] FCCA 3237 (“Aciek”) has focussed upon a different basis to come to the finding that there was jurisdiction by looking at the language of s 474(2) of the Act and, in particular, the bracketed concept of whether or not there is a discretion involved, this again does not address the distinction between procedural steps and a decision of an administrative character. The existence of a mandatory criteria or the existence of discretion is a concept that may have impact in respect of a decision of an administrative character. It is not one, however, that means that a procedural step of the kind required under s 501CA(3) of the Act should be characterised as being a decision of an administrative character. The decision of Judge Manousaridis is, in my view, plainly wrong.
Jurisdiction is a matter that must be determined by the Court when it is raised. Where there is no jurisdiction that of itself is a basis upon which the proceeding should be dismissed. It follows that this Court does not have jurisdiction in respect of the alleged migration decision, being the notification under s 501CA(3) of the Act.
In the circumstances of the present case, the Court has heard argument in respect of the s 477 application for an extension of time and it is convenient to address that issue if for some reason a different Court finds that there was jurisdiction. The proposed ground in the further amended application in support of the application for an extension of time is as follows:
1. The notice of the decision to cancel the Applicant's visa under s.501(3A) of the Act dated 6 December 2016 was not lawfully given to the Applicant.
Particulars
a. On 6 December 2016 a delegate of the Respondent (Position Number 60045441) cancelled the Applicant's Class AH Subclass 101 Child (Migrant) visa under s.501(3A) of the Act. The notice of the decision to cancel the Applicant's visa under s.50 1(3A) (the notice) was sent by that officer via email to the following email addresses:
…
b. On 6 or 7 December 2016, a Corrective Services NSW officer hand delivered the notice to the Applicant, while he was in custody at St Heliers Correctional Centre in Muswellbrook NSW.
c. There is no evidence that the sender of the email containing the notice, or the recipients of the email containing the notice held a valid delegation pursuant to s.496 of the Act for the purpose of carrying out the Respondent's duties under s.501CA(3) of the Act.
d. There is no evidence that the sender of the email containing the notice, or the recipients of the email containing the notice were appointed to act as agent for the Respondent.
e. On 10 January 201 7 the Applicant sought revocation of the decision to cancel his visa under s.501CA of the Act with the assistance of his wife.
f. On 11 January 2017 the Respondent found that the Applicant's request for revocation was invalid because the Applicant did not seek revocation of the decision to cancel his visa within 28 days of the date of the decision.
g. As the notice was not lawfully given to the Applicant, the prescribed time for the Applicant to apply for revocation of the decision to cancel his visa has not started to run.
The argument advanced by Ms Yu of counsel on behalf of the applicant is that there is a need for an express delegation in respect of the notification process to be carried out under s 501CA(3) of the Act and that, as a matter of fact, in the present case no such delegation had been given to the author of the letter, being the notification, the subject of the alleged migration decision in accordance with the requirements of s 501CA of the Act.
Section 497 of the Act on its face manifests a clear intention that personal performance of tasks in connection with delegated powers is not something that is required.
There was a fine distinction advanced in the reasoning of Judge Manousaridis suggesting that the words “in connection with” the cancellation and the reference to whether a visa should be cancelled meant that this provision had no application to the notification process being undertaken under s 501CA of the Act. The words “in connection with” are of broad import. There is no warrant for reading the provision down as having only application to circumstances prior to cancellation in respect of the work done by s 497 of the Act. Further, there is no logical basis upon which a distinction between the personal performance of tasks in respect of steps prior to cancellation and following cancellation could be gleaned as a matter of legislative purpose from the language of the Act. The legislative purpose manifested by the text of the provision and its context supports a construction that permitted the step taken in the circumstance of the present case. I regard Judge Manousaridis’ decision to the contrary to be plainly wrong.
Further, I accept the first respondent’s submission that the existence of the delegation in the circumstance of the present case in respect of the decision under s 501 of the Act carries with it, by implication, power to perform the notification under s 501CA(3) of the Act. It was the author of the s 501 decision who was delegated with authority under s 501 that gave the notification by email and by the letter that was hand delivered within that implied power. Further, in my view the provision itself, s 501CA of the Act, provides a source of power for notification without the need for any delegation. The notification under s 501CA of the Act was lawfully given. Accordingly, the notification was validly given and time for the applicant’s request for revocation has expired. For the above reasons, proposed ground 1 lacks sufficient merit to warrant an extension of time. At an impressionistic level, none of the grounds advanced by the applicant have sufficient merit to make necessary an extension of time in the interests of the administration of justice.
Even if the Court was of the view it had jurisdiction, this is not a case where it is necessary in the interests of the administration of justice to extend time. Taking into account the insufficient merits of proposed ground 1 in the application and the unsatisfactory explanation for the delay, the Court is not satisfied that it is necessary in the interests of the administration of justice to extend time under s 477 of the Act.
The Court notes that there was an issue raised in respect of the method of delivering of the letter of notification by a State prison officer handing the same to the applicant. It is apparent on the evidence before the Court that the applicant was also notified by email in accordance with r 2.55 of the Migration Regulations 1994 (Cth). Further, there is no obligation that the person purportedly handing the notification letter under s 501CA of the Act to the applicant has to be an officer of the Commonwealth. There is no dispute that the applicant was in fact handed the notification. The email was also sent on the same day to the applicant. The notification to the applicant was effective and time commenced to run on 6 December 2017 for the seeing of revocation. This issue is without merit and does not make necessary an extension of time in the interests of the administration of justice. But for the want of jurisdiction the application for an extension of time would be otherwise dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 18 December 2018
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