Uddin v Minister for Immigration & Anor

[2017] FCCA 500

FEDERAL CIRCUIT COURT OF AUSTRALIA

UDDIN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 500

Catchwords:
MIGRATION – No appearance by the applicant – first respondent moved for dismissal of the application under r.13.03C(1)(c) – consideration of the powers of Registrars – r.20.00A confers on the Registrars the powers of the Court prescribed under the Rules – appropriate for Registrars to exercise the power under r.13.03C(1)(c) if Registrar saw fit – application is dismissed.

Legislation:

Federal Circuit Court Act 1999, ss.16, 101, 102, 103, 104, 105

Federal Circuit Court Rules 2001, r.13.03C(1)(c), Div 13.1A, 20.00A

Migration Act 1958 (Cth), s.476

Public Service Act 1999 (Cth)

Applicant: SALAH UDDIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3019 of 2016

Judgment of: Judge Street

Hearing date: 17 March 2017

Date of Last Submission: 17 March 2017

Delivered at: Sydney

Delivered on: 17 March 2017

REPRESENTATION

No appearance by or on behalf of the Applicant.

Solicitors for the Respondents:

Ms C Richards-Neville

Clayton Utz

ORDERS

1. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant to pay the First Respondent’s costs fixed in the amount of $1,443.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3019 of 2016

SALAH UDDIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 September 2016, affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The proceedings were commenced on 24 October 2016.  At the time of the filing of the application, there was issued a notice of filing and hearing to the applicant, identifying a time and place of hearing, being 16 March 2017 at 2.15 pm, and the place being the Courtroom 17.1 Level 17, Law Courts Building, Queen’s Square, Sydney. That listing was before a Registrar of this Court.

3. The matter was called before the Registrar and the applicant did not appear. The Registrar has referred the matter to this Court for consideration of whether or not the application should be dealt with under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Federal Circuit Court Rules”). The matter was also called by this Court and the applicant has not appeared.

4. The first respondent has moved for the dismissal of the application under r.13.03C(1)(c) of the Federal Circuit Court Rules and has handed up to the Court a letter to the first respondent marked as Exhibit A, confirming the hearing date, time and place today, at which the applicant has failed to appear. The letter was sent to the applicant’s correct address as was identified in the application.

5. The first respondent is not aware of any reason why the applicant has not appeared. The Court notes that the applicant did appear at the hearing before the Tribunal and was at that time, represented by a migration agent, although the migration agent did not attend the hearing.

Orders made in respect of Registrars dated 17 February 2017

1. The matter has been referred by the Registrar to this Court in circumstances where on 17 February 2017, a Judge of this Court made an order in Melbourne upon an application of an applicant appearing in person, where the Court purported to make a declaration:-

   The order made by the registrar on 9 November 2016 dismissing the proceedings for non-appearance was invalid as there was no appropriate delegation.

2. The Court in that case also made orders adjourning the matter for a time for hearing. This Court has a specific statutory power to make declarations of right under s.16 of the Federal Circuit Court Act 1999 (Cth) (“Federal Circuit Court Act”). The above purported declaration is not a declaration of right. There was no power to make the declaration under s.16 of the Federal Circuit Court Act made by the Court on 17 February 2017.

3. Further, the proposition that there is no delegated legislation permitting a Registrar of the Court to exercise the powers of this Court under the Federal Circuit Court Rules is clearly wrong.

Consideration of the power and role of Registrars

1. The Registrars of this Court perform a most essential and important part of the work of the Court and the management of matters before the Court. Very large volumes of matters are dealt with by Registrars in first directions hearings, substantive hearings and callovers conducted by Registrars under the Rules and other legislation.

2. The role of the Registrar in this Court is dealt with by provisions in Division 4 of Part 7 of the Federal Circuit Court Act. Under s.101 of the Federal Circuit Court Act, Registrars are required to be persons engaged under the Public Service Act 1999 (Cth). Of considerable importance, is that under s.105 of the Federal Circuit Court Act, Registrars are required to take an oath of office, which is in substance of the same, as the oath of office taken by a Justice appointed to this Court under s.72 of Chapter III of the Constitution.

3. Under s.104 of the Federal Circuit Court Act, Registrars are to perform their function under the Act independently and are not the subject of direction or control of any person or body in relation to the way in which they exercise the powers under s.102(2) or under s.103(1) of the Federal Circuit Court Act.

4. Equally importantly, under s.104(2) of the Federal Circuit Court Act, there is a power of review by this Court in respect of the exercise of any such power by the Registrar under s.102(2) of the Federal Circuit Court Act or under s.103(1) of the Federal Circuit Court Act. The review application must be made before this Court within the time prescribed by the Rules or within such further time as is allowed by the Court. Accordingly, this Court can review the exercise of the power by the Registrar under the Rules.

5. Further, the exercise of power by the Registrar under s.102(2) or s.103(1) of the Act is taken by reason of s.103(3) for all purposes to have been exercised by the Court. The exercise of the delegated legislative powers conferred on the Registrars is not an exercise of the judicial power of the Commonwealth. The exercise of the delegated legislative powers conferred on the Registrars is an exercise of statutory power. There is a clear distinction between the Court and the Registrars in the exercise of the powers of the Registrar.

6. Registrars are also given powers under s.104 of the Federal Circuit Court Act to refer a matter, if the Registrar sees fit, to a judge of this Court. That is what has occurred in the present case, being circumstances of the uncertainty as to the Registrars’ powers as a result of the orders made by a Judge of this Court on 17 February 2017.

7. The reference in the order made on 17 February 2017 to the proposition that there is no appropriate delegation referred to in the purported declaration is misconceived. 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.

8. 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)

1. 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.

2. 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. That this is the case, is made crystal-clear from the power in paragraph (h) of item 2, whereby a Registrar may exempt a party to proceedings from compliance with a provision of these Rules.

3. That complementary provision is entirely consistent with an effective delegation of the powers of the Court under the Federal Circuit Court Rules to a Registrar of the Court. The exercise of those powers are subject to the power of review by this Court referred above.

Effect of the orders made on 17 February 2017

1. As a result of the orders made on 17 February 2017, considerable disruption and inconvenience has been caused to the Court, the Court staff, the registries and Registrars in the conduct of the very substantial lists that are dealt with by the Registrars on a daily basis around the country.

2. It is in these circumstances appropriate for this Court to make clear that the Registrars have the powers prescribed under r.20.00A(1)(Item 2)(i) Federal Circuit Court Rules, which are the powers of the Court prescribed by the Federal Circuit Court Rules. But, for the orders made on 17 February 2017, the Registrar in the present case would have been able to make appropriate orders if the Registrar saw fit to exercise the powers under r.13.03C(1)(c) of the Federal Circuit Court Rules.

3. To the extent that it is not apparent from what I have said, I regard the orders in the matter BJC16 v Minister of Immigration and Border Protection & Anor made on 17 February 2017 to be clearly wrong, and I do not propose to follow the same.

4. It will, of course, be a matter for the Registrars of the Court, consistent with their oath of office, to which I have referred, and their statutory independence to which I have referred, to deal with any matters that comes before the Registrars under the Federal Circuit Court Rules in a manner consistent with that independence and oath of office.

Failure to appear

1. In the circumstances of the present case, I am satisfied that the applicant was aware of the first return date. I am satisfied that the applicant failed to appear. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Federal Circuit Court Rules. 

Conclusion

1. The application is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  17 March 2017