SZVCP v Ng

Case [2017] FCA 455

FEDERAL COURT OF AUSTRALIA

SZVCP v Ng [2017] FCA 455

File numbers: NSD 2206 of 2016
NSD 2207 of 2016
Judge: FLICK J
Date of judgment: 4 May 2017
Catchwords:

MIGRATION – judicial review sought of decision of Federal Circuit Court dismissing an application for review – no extension of time

PRACTICE AND PROCEDURE – review of decision of Registrar refusing to accept for filing an application seeking review of decision of Federal Circuit Court Judge 

PRACTICE AND PROCEDURE – unfounded criticism made of Federal Circuit Court Judge – fair criticism for the public good – criticism not responsibly made

Legislation:

Constitution (Cth) Ch III

Judiciary Act1903 (Cth) ss 39B, 78B

Migration Act 1958 (Cth) ss 476A, 477

Cases cited:

BBD15 v Minister for Immigration & Anor (No 2) [2016] FCCA 3077

BBD15 v Minister for Immigration & Anor (No 3) [2016] FCCA 3334

Clement v Australian Bureau of Statistics [2016] FCA 948

Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918, (2004) 56 ATR 371

Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28

Glennan v Commissioner of Taxation [2003] HCA 31, (2003) 198 ALR 250

Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179

SZVCP v Minister for Immigration & Anor [2016] FCCA 950

SZVCP v Minister for Immigration & Anor (No 2) [2016] FCCA 3155

SZVCP v Minister for Immigration & Anor (No 3) [2016] FCCA 3333

SZVCP v Minister for Immigration & Ors (No 3) [2016] FCCA 3328

The King v Fletcher; Ex parte Kisch (1935) 52 CLR 248

The King v Nicholls (1911) 12 CLR 280

Date of hearing: 27 April 2017
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 40
In NSD 2206 of 2016:
Counsel for the Applicant: The Applicant appeared by telephone
Counsel for the Respondent: The Respondent did not appear
In NSD 2207 of 2016:
Counsel for the Applicant: The Applicant appeared by telephone
Counsel for the First Respondent: The First Respondent filed a submitting notice
Counsel for the Second and Third Respondents: Ms L Buchanan of Australian Government Solicitor

ORDERS

NSD 2206 of 2016
BETWEEN:

SZVCP

Applicant
AND:

C NG (DEPUTY DISTRICT REGISTRAR)

Respondent

NSD 2207 of 2016
BETWEEN:

SZVCP

Applicant
AND:

HON JUDGE STREET (OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA)

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Third Respondent

JUDGE:

FLICK J

DATE OF ORDER:

4 MAY 2017

THE COURT ORDERS THAT:

1.The claim for interlocutory relief in proceeding No NSD 2207 of 2016 is refused.

2.The Originating Application for Judicial Review filed on 23 December 2016 in proceeding No NSD 2206 of 2016 is dismissed.

3.The Originating Application for Relief under Section 39B Judiciary Act 1903 filed on 23 December 2016 in proceeding No NSD 2207 of 2016 is dismissed.

4.The Applicant is to pay the costs of the Second and Third Respondents, being the Commonwealth…

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Details
AGLC
SZVCP v Ng [2017] FCA 455
Case
[2017] FCA 455
Decision Date

CaseChat Overview and Summary

In the matter of SZVCP v Ng, the applicant, SZVCP, sought a judicial review of the Federal Circuit Court's decision to dismiss their application for an extension of time. This application was in relation to decisions made by the Minister for Immigration & Ors. The second and third respondents appeared through a solicitor and filed an Outline of Submissions on 20 April 2017. The Federal Circuit Court had previously dismissed the application for an extension of time, a decision from which SZVCP sought to appeal.

The court had to decide whether the Federal Circuit Court Judge's decision to refuse an extension of time was correctly made, and whether the Deputy District Registrar's decision to dismiss the application for judicial review was appropriate. The court considered the statutory provisions and the arguments presented by SZVCP. The court found that the Federal Circuit Court Judge's decision was within the scope of s 476A(3)(a) of the Migration Act 1958 (Cth), and that the Deputy District Registrar's decision was correct. The court also found that there was no procedural unfairness or unreasonableness in the Deputy District Registrar's decision. The court dismissed the application for judicial review and interlocutory relief, and ordered SZVCP to pay the costs of the Commonwealth and the Minister for Immigration and Border Protection.

The court found that the Federal Circuit Court Judge's decision to refuse an extension of time was correctly made, and that the Deputy District Registrar's decision to dismiss the application for judicial review was also appropriate. The court found that the statutory provisions governing the matter were correctly applied, and that there was no procedural unfairness or unreasonableness in the Deputy District Registrar's decision. The court further found that there was no basis to question the correctness of the Federal Circuit Court Judge's decision to dissolve the injunction. The court dismissed the application for judicial review and interlocutory relief, and ordered SZVCP to pay the costs of the Commonwealth and the Minister for Immigration and Border Protection. The court's decision was based on a careful consideration of the legal issues and the arguments presented by the parties, and was consistent with the applicable statutory provisions and legal principles.

Orders

Orders of the court

1. The claim for interlocutory relief in proceeding No NSD 2207 of 2016 is refused.

2. The Originating Application for Judicial Review filed on 23 December 2016 in proceeding No NSD 2206 of 2016 is dismissed.

3. The Originating Application for Relief under Section 39B Judiciary Act 1903 filed on 23 December 2016 in proceeding No NSD 2207 of 2016 is dismissed.

4. The Applicant is to pay the costs of the Second and Third Respondents, being the Commonwealth and the Minister for Immigration and Border Protection, in proceeding No NSD 2207 of 2016.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Second and Third Respondents in proceeding No NSD 2207 of 2016 appeared by way of a solicitor. These Respondents together filed an Outline of Submissions in that proceeding on 20 April 2017. The decision of the Deputy District Registrar Before the Deputy District Registrar was a Notice of Appeal from the decision of the Federal Circuit Court Judge published on 20 December 2016 which dismissed the application for an extension of time: SZVCP v Minister for Immigration & Ors (No 3) [2016] FCCA 3328. The second and third of the Orders made by that Judge expressly provided that “[t]he application for an extension of time under s.477 of the [Migration Act 1958 (Cth)]” in respect to the “alleged decision dated 12 March 2014” and the “decision dated 20 October 2016” be dismissed. The fourth Order dissolved an injunction restraining the return of the Applicant to Christmas Island. The Deputy District Registrar on 21 December 2016 wrote to the Applicant. That letter specifically brought to the attention of the Applicant the terms of s 476A(3)(a) of the Migration Act 1958 (Cth) which provide as follows:Limited jurisdiction of the Federal Court…Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from: (a)a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or …Section 477(1) and (2) provide as follows: Time limits on applications to the Federal Circuit Court (1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. The decision of the Federal Circuit Court Judge refusing an extension of time fell within s 476A(3)(a) and the decision of the Deputy District Registrar was, accordingly, correct. There was no denial of procedural fairness on the part of the Deputy District Registrar. He advised the Applicant of the difficulty presented by s 476A(3)(a). It was open to the Applicant thereafter to make any submissions that he saw fit. Nor was the decision of the Deputy District Registrar “unreasonable”. Even if it were possible to separate out the fourth Order dissolving the injunction from the Orders refusing an extension of time, a course which is truly questionable, there is no basis to question the correctness of the decision of the Federal Circuit Court Judge to dissolve the injunction. Nor was any submission advanced before this Court seeking to impugn the decision of the Deputy District Registrar on this basis.

Ratio Decidendi

Legal Principle Established

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