Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1010
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1010
File number(s): SYG 112 of 2023 Judgment of: JUDGE LAING Date of judgment: 9 November 2023 Catchwords: MIGRATION – application for an extension of time in which to seek judicial review – where the applicant contends that a purported withdrawal of a visa application was invalid – whether there is a relevant “migration decision” – whether the Court has jurisdiction to determine the matter – application dismissed Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 5E, 47, 49, 474 and 476
Cases cited: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674
EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409
Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1396
Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCASL 37
Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; (2014) 221 FCR 523
Pham v Minister for Immigration [2022] FCA 38
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 7 September 2023 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Vietaust Lawyers Counsel for the Respondent: Mr M Cleary Solicitor for the Respondent: HWL Ebsworth Lawyers ORDERS
SYG 112 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THANH DAM NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for an extension of time in which to seek judicial review. The respondent (Minister) contends that there is no relevant “migration decision” before the Court and that this Court accordingly lacks jurisdiction in the matter.
The parties have asked the Court to determine the issue of jurisdiction before determining the application for an extension of time and, if granted, the proposed substantive application that is before the Court. The parties agree that if this Court finds that it lacks jurisdiction on account of there being no relevant “migration decision”, then the application for an extension of time ought to be dismissed without further consideration of the matter. If the contrary is found, then the parties seek for the matter to be listed for a further hearing in relation to the application for an extension of time.
BACKGROUND
The applicant is a citizen of the Socialist Republic of Vietnam (Vietnam). The applicant was included as a dependant on his mother’s offshore application for a Contributory Parent (Subclass 143) visa (contributory parent visa) lodged on 24 June 2016.
On 5 January 2021, the applicant’s agent submitted a Form 956 to the Department identifying that they acted for the applicant as well as for his mother and father. An email address for communications was stated on the form (Nominated Email Address).
On 29 March 2022, the agent submitted to the Department a Form 1445 (Withdrawal of a visa application) (withdrawal form) regarding the applicant’s father on the grounds that he had divorced the applicant’s mother and no longer wished to migrate to Australia.
On 20 September 2022, a submission occurred through the Department’s website attaching what was said to be a withdrawal form that had been completed by the applicant. The email address (Different Email Address) noted in the submission was different from the Nominated Email Address, in the sense that one letter was omitted. The withdrawal form was purportedly signed by the applicant. The reason given was that “[s]ome of the information provided in the application are not true, so they will affect my future”.
An email on 20 September 2022 purporting to be from the applicant at a personal email address (Purported Personal Address) further stated:
I am writing this letter to withdraw my visa application. I was listed as dependent in my mother's application. However, some information are not correct, so I am afraid that it will affect my future.
The application was sent in 2016 by my brother but he can not find his details with Immigration, so my mother used an agent to organise the documents. But I would like to submit my withdrawal myself, so I send this form directly to you.
On 24 September 2022, the Department emailed the applicant’s representatives at the Nominated Email Address. A copy was also sent to the applicant at a personal email address that was different from the Purported Personal Address.
A peculiar series of correspondence then followed. On 24 September 2022, the applicant’s representatives emailed the Department claiming that the applicant had never signed a withdrawal form. This was not accepted by the Department. The representatives responded, stating that the applicant believed he had been hacked. A submission was then made on the Department’s website on 25 September 2022, recording the Different Email Address, where someone purporting to be the applicant stated:
Regarding your questions about additional information for my withdrawal: I was not dependent on my mother since many years ago, and I also had a partner. We pay for our living ourselves.
On 26 September 2022, the applicant’s representatives again asserted that the applicant had not withdrawn his application and attached a statement expressed to be from the applicant to this effect. The statement asserted that the applicant had never signed the withdrawal form. A further communication from the applicant’s representatives on 27 September 2022 expressed that the applicant and his mother were stressed about the situation.
On 1 October 2022, a representative of the Department forwarded the further submission received on the website and stated that the Department was “satisfied that the applicant signed the form”. The matter was expressed to be “closed” and it was stated that the Department would not respond to further communications regarding the applicant’s status. However, this email was sent to the Different Email Address.
On 3 October 2022, a representative of the Department wrote to the Nominated Email Address (from which the applicant’s representatives had been sending the communications asserting that the applicant had not submitted a withdrawal form) similarly stating:
The application was withdrawn and we are satisfied that the applicant signed the form.
Dealing with this matter has taken a considerable amount of time and resources. The matter is closed and we will not respond to any further communication regarding the status of the application for NGUYEN, Thanh Dam.
On 23 December 2022, the applicant’s mother was granted a contributory parent visa.
LEGISLATION
The Minister is required to consider a valid application for a visa: s 47(1) of the Migration Act 1958 (Cth) (Act). That obligation continues until the application is withdrawn, granted or refused, or further consideration is otherwise prevented by the Act: s 47(2) of the Act.
In relation to withdrawal, s 49 of the Act provides:
Withdrawal of visa application
(1)An applicant for a visa may, by written notice given to the Minister, withdraw the application.
(2) An application that is withdrawn is taken to have been disposed of.
(3)For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.
(4)Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.
In relation to this Court’s jurisdiction, s 476 of the Act provides:
Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)
(1)Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2)The Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c)a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;
(d)a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3)Nothing in this section affects any jurisdiction the Federal Circuit and Family Court of Australia (Division 2) may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4) In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b)that would have been so reviewable if an application for such review had been made within a specified period; or
(c)that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).
The term “migration decision” is defined in s 5 of the Act as follows:
migration decision means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non-privative clause decision; or
(d) an AAT Act migration decision.
A “privative clause decision” is relevantly defined in s 474(2) of the Act as 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)”.
A “purported privative clause decision” is defined in s 5E of the Act as a decision that would have been a privative clause decision if there were not a failure to exercise jurisdiction, or an excess of jurisdiction, in the making of the decision.
The definitions of “a non-privative clause decision” and “an AAT Act migration decision” are not relevant for present purposes.
Section 474(3) of the Act provides:
(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.
PROPOSED APPLICATION FOR REVIEW
The applicant commenced the current proceedings through an application filed on 19 January 2023. The application identified the “decision” under review as having been made on 3 October 2022. The proposed ground of the substantive application was stated as follows:
1.The Respondent (Minister) made a jurisdictional error by treating the Applicant as having withdrawn his application for the visa.
Particulars
a.The Applicant's mother applied for a subclass 143 contributory parent visa on 24 June 2016.
b.The Applicant was listed as a dependent on the application for the visa and, given the date of the application, was required to satisfy reg 1.12 of the Migration Regulations 1994 (Cth) as it stood before its amendment by Migration Legislation Amendment (2016 Measures No 4) Regulation 2016 (Cth) (see at Sch 5, item 5704);
c.On 20 September 2022, the Department received a "form 1446 - withdrawal of application" purportedly submitted by the Applicant;
d.On 24 September 2022, the solicitors for the Applicant sent an email to the Department indicating that the form 1446 was not authorised by the Applicant, had been fraudulently submitted and the Applicant did not wish to withdraw from the application for the visa;
e.On 3 October 2022, the Department replied that "the application was withdrawn and we are satisfied that the applicant signed the form" and further stated that the "matter is closed and we will not respond to any further communication regarding the status of' the Applicant.
f.Section 49(1) of the Migration Act 1958 (Cth) (Act) provided that the Applicant "may, by written notice given to the Minister, withdraw the application" and s 49(2) of the Act provided that an "application that is withdrawn is taken to have been disposed of';
g.The presence of a valid notice of withdrawal was an objective jurisdictional fact as it was essential to withdrawal under s 49 of the Act and the absence of withdrawal was a precondition to the Minister considering the application for the visa: see eg Lumumba v Minister for Immigration (No 2) [2022] FCA 1523 at [174];
h.An objective jurisdictional fact is reviewable de novo or on the merits by this Honourable Court: EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409 (EHF17) at [63]-[64];
i.Even if the presence of a valid notice of withdrawal under s 49 of the Act were a subjective jurisdictional fact, it would still be reviewable by the Court for illogicality or irrationality: EHF17 at [70], [84];
j.There was not a valid notice of withdrawal in the present case as it was not "by the applicant" or, in the alternative, it was countermanded by the Applicant;
k.In the alternative, the Department's finding as to the presence of a valid notice of withdrawal was illogical or irrational and should be set aside.
JURISDICTION
All courts “have the duty and the authority to consider and decide whether a claim or application brought before the court is within its jurisdiction”: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674 at [3] per Kiefel CJ, Gordon and Steward JJ.
In oral submissions, the applicant clarified that the “decision” relied upon as enlivening this Court’s jurisdiction was a finding of fact made by the Department that the withdrawal was submitted by or with the authority of the applicant. This was said to have been made in the 3 October 2022 communication from a representative of the Department, in which it was stated, “The application was withdrawn and we are satisfied that the applicant signed the form”. The applicant submitted that this was capable of amounting to a relevant “decision”, particularly having regard to the broad categories in s 474(3) of the Act and, specifically, (a), (g) and (h).
The Minister’s position was that there was no relevant “decision” for the purposes of the Act capable of enlivening the jurisdiction of this Court. The Minister submitted that the question of this Court’s jurisdiction in such a case was determined in Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1396 (Gillera) per Thomas J, which decision is binding upon this Court.
Gillera raised the question of the jurisdiction of this Court’s predecessor in a matter where a purported withdrawal under s 49 of the Act was contended to have been invalid. The appellant in that case challenged, inter alia, a finding by the primary judge that the Federal Circuit Court of Australia (Federal Circuit Court) (as it was) lacked jurisdiction to determine the matter.
On appeal in Gillera, the appellant sought to characterise the relevant “decision” in the following ways:
24.The appellant identified two “decisions” made by the respondent which were said to be “migration decisions”, namely:
(a)the respondent’s “decision” that the Visa Application had been withdrawn; and
(b)the respondent’s failure or refusal to consider the appellant’s Visa Application as required by s 47 of the Act.
25.The appellant further submitted that there was a “decision” taken by the respondent, which could be characterised in alternative ways:
(a)the respondent’s failure or refusal to consider what the appellant asserted was a valid visa application was a decision, because a decision includes refusing to do an act or thing.
(b)the respondent’s conclusion that the visa application had been withdrawn was a decision, because it was a positive act of doing something (i.e. reaching a view about the status of the withdrawal notice and the application).
26.The appellant contended that the term “migration decision” as defined in s 5(1) of the Migration Act adopted the meaning of “decision” as described in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 in which the High Court noted (at [89]) that a decision under an enactment “must be expressly or impliedly required or authorised by the enactment; and... must itself confer, alter or otherwise affect legal rights and obligations”.
27.The appellant submitted that the respondent’s “decision” was “expressly or impliedly required or authorised” by the Migration Act. As to that, the appellant submitted that:
(a)section 47(1) requires the respondent to consider a valid visa application which continues “until the application is withdrawn” or the visa is granted or refused.
(b)in compliance with s 47 the delegate must consider a visa application until it is withdrawn. As to whether the application has been withdrawn, the delegate must be satisfied that there is a document purporting to be a notice of withdrawal, the notice has been given to the respondent, and the notice relates to the application in question. This impliedly requires or authorises the making of a decision about whether there has been a withdrawal.
(c)implicit in s 47 is that the respondent must not consider an application that has been withdrawn – so the respondent must be satisfied that the application has been withdrawn.
28.The appellant suggested that the respondent’s “decision” itself “confers, alters or otherwise affects legal rights or obligations” in that the withdrawal “decision” resulted in the appellant no longer having a right for her Visa Application to be determined. The appellant also pointed to the fact that the respondent’s “decision” would have determined her right to be in Australia.
Justice Thomas considered that the above arguments depended, for their force, on the existence of a “decision” (at [29]). His Honour considered that the question was whether the process of the withdrawal and disposal occurred by operation of the Act, or whether it required a “decision” to be taken (at [29]). His Honour observed that the respondent had submitted that there was no relevant “decision” because s 49 of the Act prescribed the consequences of withdrawal, with the result that there was nothing to “decide” (at [30]). At [31]-[36], his Honour reasoned:
31.In this case, in my view, it is the application of s 49 of the Migration Act to the facts which led to the result that the application was withdrawn and taken to have been disposed of rather than any administrative decision on the part of the respondent. The language used in that section makes this clear. The way in which an application is withdrawn is clearly prescribed. An application that is withdrawn “is taken to have been disposed of”. Those words do not suggest that the exercise of any discretion by the respondent is involved. Rather, it is by the force of the statute that the result follows.
32.The respondent makes no “decision” about whether there has been a withdrawal. The withdrawal occurs by operation of s 49 of the Migration Act and is not dependent upon a decision of the respondent in order for the withdrawal to take effect.
33.In relation to the second “decision” contended by the appellant, a decision cannot be made by the respondent to refuse to consider a visa application in circumstances where the application had been withdrawn by operation of s 49. Section 47 expressly provides that the respondent’s requirement to consider an application continues until the application is withdrawn.
34.This position is consistent with earlier cases noted by the respondent which dealt with forfeiture under the Customs Act 1901 (Cth) and which consider the position where an outcome arose by force of statute rather than as a result of an administrative decision. In Sandery v Commissioner of Police (1986) 65 ALR 181, Jackson J observed (at 184) “all that occurs is that by the operation of the Customs Act, if moneys in fact fall within the description referred to in s 229A(2)(a)(i) , they are deemed, by virtue of s 229A(6) to be “forfeited goods” ... It is that act, and not any conduct thereunder, which determines that the money is “forfeited goods”.” In Whim Creek Consolidated NL v Coglan [1991] FCA 467; (1991) 31 FCR 469 O’Loughlin J (with whom Spender and French JJ agreed) said (at 476) “the concept of forfeiture does not evolve out of any administrative decision ... On the contrary, it arises by force of statute upon the happening of certain prior events”.
35.Those decisions were considered in the migration context in NACO v Minister for Immigration and Multicultural Affairs [2002] FCA 474 where Hely J applied the principle to a visa application under the Migration Act. His Honour referred (at [18]) to the earlier cases as being where the “outcome arises by the application of the law to the facts, rather than an outcome which evolves from administrative decision”. In that particular case, it was held that it was the application of the relevant sections of the Migration Act to the facts which produced the outcome that the respondent was precluded from considering the application for a visa, rather than any administrative decision on the part of the respondent’s delegate.
36.Justice Hely observed that if the conclusion that the application was invalid were wrong, and the application was one which, in point of law, the respondent was obliged to consider, then mandamus would lie under s 39B of the Judiciary Act 1903 (Cth) to compel the respondent to determine the application according to law.
Section 39B of the Judiciary Act 1903 (Cth) concerns the original jurisdiction of the Federal Court of Australia.
In relation to the appellant’s reliance upon the decision in Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; (2014) 221 FCR 523, Thomas J observed that it was not directly on point (at [41]). His Honour considered the submissions made in relation to that decision as follows at [44]-[46]:
44.The appellant submits that the decision in Kim indicates that the Federal Circuit Court does have jurisdiction to decide for itself whether a visa application is valid. In the appellant’s submission, this supports the conclusion that, in the current case, the Federal Circuit Court also had jurisdiction to decide for itself whether the purported withdrawal was valid and, if it was not valid, to grant mandamus (or an appropriate declaration).
45.The respondent submits, as I believe is correct, that, insofar as Kim is of relevance, it supports the respondent’s submission that an application will (or will not) be withdrawn under s 49 by virtue of statute, regardless of the respondent’s view about the withdrawal, and that where a visa application has not been validly withdrawn, the appropriate remedy will be mandamus to compel the respondent to consider the application.
46.For the reasons above, I conclude that the Federal Circuit Court had no jurisdiction to hear the amended application for review as there was no relevant “migration decision” regarding withdrawal of a visa application made under the Migration Act; no “decision”, whether actual or purported, regarding the withdrawal of the appellant’s Visa Application was, or could have been, made by the respondent.
Justice Thomas concluded that the Federal Circuit Court correctly found that it had no jurisdiction in the matter and that this effectively disposed of the appeal (at [47]). Whilst expressing that it was unnecessary to decide the point, his Honour further concluded that the withdrawal of the visa application was valid (at [48]-[78]).
An application for special leave in respect of Gillera was dismissed by the High Court of Australia: Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCASL 37.
The applicant sought to distinguish Gillera on the basis that it was “not dealing with the determination of the fact of withdrawal by notice from the Applicant.” Instead, it was submitted that Gillera “goes to whether the notice, indisputably given by the applicant in that case, was void or could be retracted for mistake”. In written submissions, the applicant contended:
16.It is submitted that Gillera is distinguishable in the present case. It was undisputed in Gillera that there had been submitted by the Applicant a notice of withdrawal under s 49(1) of the Act. Once that fact arose, withdrawal was immediately and unavoidably effect under the statutory provision. There was no administrative discretion or action beyond the point in time at which the fact occurred.
17.The present case is materially different. The Applicant's case is that he never submitted a notice of withdrawal. Rather, such a notice was falsely submitted in his name by a person or persons unknown. There is administrative action at this anterior stage. There has to be conclusion of fact by the Minister that there has been received a notice of withdrawal from the Applicant. The Minister concluded, at the latest on 3 October 2022, that there had been a notice from the Applicant.
I am not persuaded that these matters form a basis for effectively distinguishing Gillera. As in the present case, the appellant in Gillera contended that the Federal Circuit Court had jurisdiction to determine the effectiveness or validity of the purported withdrawal of the applicant’s visa application. Whilst the challenge to validity was for different reasons than in the present case, this does not appear to render the reasoning in Gillera inapplicable.
I am not convinced that no “anterior question of occurrence and ascertainment” occurred in Gillera, in contrast to the present case. In Gillera, as in the present case, the Department appears to have undertaken some assessment of whether the applicant had withdrawn her application by the giving of written notice to the Minister. The applicant disagreed with the Department’s assessment. Whilst the physical act of the applicant having completed and provided the form to the Department may not have been challenged in Gillera, the applicant had contended that, on account of the circumstances in which she did so, she had not withdrawn her application. This was considered at [48]-[78] of the judgment in Gillera, where Thomas J found that notwithstanding the matters raised by the applicant regarding her understanding and intentions, a withdrawal had been affected by the giving of written notice to the Department.
It was within this section of the judgment (at [48]-[78]) that his Honour considered cases that had been relied upon by the applicant “where the effect of a withdrawal of an application (or abandonment or discontinuance of proceedings in two of those cases) was discussed in the context of some act (fraud, misrepresentation or mistake) which might have rendered the withdrawal ineffective or the abandonment or discontinuance a nullity” (at [70]). His Honour observed that those cases had occurred in different contexts and that the appellant had not made submissions, at the hearing of the appeal, beyond that she had been mistaken (at [71]-[76]). In any event, the analysis at [48]-[78] of the judgment in Gillera was one that his Honour had already found that the Federal Circuit Court had no jurisdiction to undertake. The structure of the reasons in Gillera makes clear that the decision in relation to the Federal Circuit Court’s jurisdiction did not depend upon determination of whether the facts of the case supported the effectiveness of the withdrawal (or the correctness of the Department’s assessment in this regard).
Whilst the physical giving of the notice was not contested in Gillera, Thomas J expressly contemplated a situation in which the Department may be incorrect in its factual assessment that the requirements for a withdrawal under s 49 of the Act were met i.e., that the applicant had given a written notice of withdrawal to the Department. In these circumstances, his Honour appears to have considered that the appropriate remedy would be mandamus, sought pursuant to s 39B of the Judiciary Act 1903 (Cth), to compel the Minister to consider the application (see [36] and [44]-[46]).
I also accept the Minister’s submission that it has not been demonstrated that a purported opinion of fact, contained in the 3 October 2022 correspondence, could be said to have been a “decision” of an administrative character made under the Act, or under a regulation or other instrument made under the Act. It is not clear how a factual assessment of the source of the applicant’s signature, as distinct from an assessment of whether a withdrawal had been received within the meaning of s 49 of the Act, could be said to “itself confer, alter or otherwise affect legal rights and obligations”: see Gillera at [26]. In Gillera, it was found that the Minister “makes no ‘decision’ about whether there has been a withdrawal” in finding that the withdrawal has, or has not, occurred (at [32]). In this regard, it was found that “an application will (or will not) be withdrawn under s 49 by virtue of statute, regardless of the respondent’s view about the withdrawal” and that “no ‘decision’, whether actual or purported, regarding the withdrawal… was, or could have been, made” by the Minister (at [45]-[46]). I therefore accept the Minister’s submission that it has not been demonstrated that the view expressed in the correspondence of 3 October 2022 was a “decision” in the requisite sense.
Having regard to the above, I am not persuaded that Gillera is sufficiently distinguishable that it ought not to be followed. This is notwithstanding the broad characterisations of decisions contained within s 474(3) of the Act. Recourse to a number of such characterisations was sought in Gillera (at [24]-[28]). Justice Thomas nonetheless found that there was no relevant “decision” capable of enlivening the jurisdiction of the Federal Circuit Court. Even if the reasoning in Gillera were not directly applicable or binding due to the factual distinction relied upon by the applicant, I consider that the persuasive force of the decision is such that it ought to be followed in the present case.
The applicant relied upon other authorities, including EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409 at [63]-[64], [70] and [84] per Derrington J (EHF17) and Pham v Minister for Immigration [2022] FCA 38 at [34], [38], [43]-[44] per Middleton J (Pham). Particular reliance was placed upon Pham, in which reference was made to “determination[s]” by the Department that a combined application for a visa was, or was not, validly made (at [44]-[45]). The jurisdiction of the Federal Circuit Court to have considered questions relating to such “determination[s]” does not appear to have been doubted on appeal.
However, the decisions relied upon by the applicant did not concern construction of s 49 of the Act. EHF17 considered review of jurisdictional facts, but in circumstances where the relevant Court possessed jurisdiction to undertake such a review. In Pham, the jurisdiction of this Court to have decided the proceedings below does not appear to have been challenged by either party. The decision in Pham, therefore, does not undertake the level of consideration of the legislative provisions governing the jurisdiction of this Court’s predecessor that was undertaken, in some detail, in Gillera. Pham was a different case, concerned with different circumstances and a different legislative context.
For the above reasons, I consider that Gillera ought to be followed in finding that this Court lacks jurisdiction in the matter.
CONCLUSION
For the above reasons, the application before this Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 9 November 2023
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