FEDERAL COURT OF AUSTRALIA

SZTVU v Minister for Home Affairs [2019] FCAFC 30

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to file an amended notice of appeal be dismissed.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal to be assessed in default of agreement.

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

REASONS FOR JUDGMENT

PERRY J:

1    I express my gratitude to Derrington and Wheelahan JJ for their joint reasons with which I agree. I wish only to add some observations arising from ground 1 of the notice of appeal, in particular with respect to concerns which arose at the hearing regarding the circumstances in which the application was dismissed below in the exercise of the power under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules).

2    I agree that it is tolerably clear that the primary judge in substance was not satisfied that the application raised an “arguable case” in dismissing it on the show cause hearing under r 44.12 of Part 44 of the FCC Rules, despite using (at [20] of his reasons) the language in which the test on an application for summary dismissal under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act) is expressed. The test in s 17A of the FCCA Act is whether there is (relevantly) a “reasonable prospect of successfully prosecuting the proceeding”. Importantly, this is qualified by subs 17A(3) which provides that a proceeding need not be hopeless or bound to fail in order that it have no reasonable prospect of success. There is no equivalent qualification to the test of an “arguable case” in r 44.12 of the FCC Rules. As such, there is no warrant for transposing the test for summary dismissal as modified by s 17A(3) to r 44.12 of the FCC Rules which ought to be applied in its own terms.

3    That said, I note that ground 1 of the notice of appeal alleges that the primary judge failed to apply the appropriate standard for finding that there was no arguable case as described in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer). In Spencer the High Court considered the proper construction of subs 31A(3) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) which is relevantly in the same terms as s 17A of the FCCA Act and was also inserted by the Migration Litigation Reform Act 2005 (Cth), albeit that both provisions apply generally to any proceedings in the FCCA and FCA. The High Court in Spencer held that by virtue of subs 31A(3) of the FCA Act, it was no longer necessary for a party seeking summary dismissal to demonstrate that the claim was hopeless or bound to fail, in order to establish that the application should be summarily dismissed under subs 31A(1).  As such, in identifying Spencer as describing the appropriate standard, ground 1 of the notice of appeal appears erroneously to conflate the test under r 44.12 with that under s 17A, albeit that this does not reflect the manner in which the appellant’s case was argued.

4    In this regard, while s 17A of the FCCA Act and r 44.12 of the FCC Rules provide mechanisms whereby an application may be dismissed without proceeding to trial, the differences in wording reflect their different function and origins. The show cause procedure under Part 44 (which includes r 44.12) was inserted into the (then) Federal Magistrates Court Rules 2005 (Cth) (the FMC Rules) in 2005 by the Federal Magistrates Court Amendment Rules 2005 (No. 1) (Cth) (the FMC Amendment Rules).  The FMC Amendment Rules were enacted as a consequence of the amendments to the Migration Act 1958 (Cth) made by the Migration Litigation Reform Act 2005 (Cth) limiting jurisdiction to entertain applications for judicial review of migration decisions to the High Court and the FMC, and conferring upon the FMC the same jurisdiction as that conferred with respect to the constitutional writs upon the High Court by s 75(v) of the Constitution. As such, the Explanatory Statement to the FMC Amendment Rules explained that “[a]s the grounds of migration review in the FMC are the same as the High Court, the rules of proceedings set out in new Part 44 mirror those which apply to similar proceedings instituted in the High Court.” The FMC Amendment Rules also amended r 13.07 and r 13.10 dealing with summary dismissal consequential upon the enactment of s 17A of the FCCA Act to incorporate the terminology found in s 17A and to avoid any inconsistency, as the Explanatory Statement explains.

5    In the context of this case, it is unnecessary to delve into a historical analysis of the practice and procedure relevant to the constitutional and other writs, and argument was not directed towards this issue: see further e.g. Jenks, Edward, “The Prerogative Writs in English Law”, (1923) 32 Yale Law Journal 523; and Holdsworth W, A History of English Law (Sweet and Maxwell, 1964) vol XIV, 245-247. It suffices to make a couple of points bearing upon the history and purpose of the show cause procedure in the FCC Rules relevant to the concerns which I mentioned at the outset.

6    The High Court Procedure Act 1903 (Cth) (HCA Act) as originally enacted made provision for causes and matters to be commenced in the High Court by writ of summons, motion, originating summons, or (relevantly) an order to show cause (Order 1(1), HCA Act). In turn, Order XLI of the HCA Act provided that applications for writs of certiorari, mandamus, or prohibition “shall be, in the first instance, for an order calling on the parties interested in resisting the application to show cause why the writ should not be issued, … or other relief given …”. In the absence of that condition being met, the order absolute would be granted. As such, applications for an order to show cause were initially made ex parte and constituted in effect a gateway to the commencement of a proceeding for a constitutional or other (prerogative) writ. In order to obtain the order to show cause, the party seeking the order was required to demonstrate an arguable case: Re Australian Nursing Federation; Ex parte Victoria (1993) 112 ALR 177 at 183 (McHugh J). Prior to the enactment of the High Court Rules 2004 (Cth) (HCA Rules 2004) (which came into force on 1 January 2005), that two-step procedure remained essentially in place, with the initial application for an order to show cause being heard ex parte unless the Court otherwise directed: see Order 55(1) and (2), High Court Rules 1952 (Cth).

7    At the time that the FMC Amendment Rules were enacted, the two-step procedure in the High Court had been significantly modified in that the application to show cause, together with affidavits in support and submissions, were required to be served on the defendant and notice given of the hearing of the application to show cause (rules 25.03.1 and 25.03.2, HCA Rules 2004). On the hearing of that application, a Justice could order that the application to show cause be dismissed, referred for further hearing by a Full Court, or that the defendants show cause why the relief should not be made (rule 25.03.3, HCA Rules 2004). These processes did not, however, preclude the Court from granting the relief sought without first making an order to show cause where it appeared necessary for the advancement of justice (rule 25.03.4, HCA Rules 2004). Where the order to show cause was made, the plaintiff was confined to the relief sought and grounds stated in the order (rule 25.04, HCA Rules 2004).

8    This procedure was abolished by the High Court Amendment (Constitutional Writs and Other Matters) Rules 2018 (Cth) made on 9 October 2018 (HCA Amendment Rules 2018) in order “to provide a more streamlined procedure for the filing and consideration of applications”: Explanatory Statement to the HCA Amendment Rules 2018 (Explanatory Statement). As the Explanatory Statement further explained:

The Court proposes to move away from using the phrase “application for an order to show cause”, which was more appropriate in the pre-2004 rules of court which provided for a two-step (initially ex parte) process for such applications.

9    Thus the HCA Rules as amended in 2018 made it clear that an application for a constitutional or other writ may be finally determined on the first occasion that it comes before the Court, without the need for a directions hearing. Rule 25.09, however, provides that the Court or a Justice may dismiss an application for a writ without listing the application for hearing on the ground that it does not disclose an arguable basis for the relief sought or is an abuse of process.

10    Notwithstanding the changes in High Court practice, the two-step procedure embodied in the HCA Rules 2004 prior to the 2018 amendments remains the model for the FCC Rules. The origins of the process embodied in rule 44 and the fact that it was enacted at the same time as r 13.07 and r 13.10 of the FCC Rules concerning applications for summary dismissal demonstrates that r 44 was intended to serve a different purpose, namely, that an application for a writ in relation to a migration decision may be required to meet the threshold of an “arguable case” before proceeding to trial on the grounds found to be arguable and specified in the order to show cause. Thus the onus lies upon an applicant to demonstrate that an arguable case has been raised and, only then will an order be made under r 44.12(1)(b) requiring the respondent to show cause at a final hearing why the relief claimed should not be granted.  On the other hand, in a summary dismissal matter, the onus lies upon the respondent as the moving party to persuade the Court that the application has no reasonable prospects of success:  see e.g. Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [45] (Reeves J). 

11    The jurisdictional issue raised by the application below was of such a nature as to lend itself potentially to dismissal on a show cause hearing. However, given the purpose of r 44 of the FCC Rules, it is of concern that the case proceeded in substance below in what the Minister accepted was the same way as if it were proceeding to trial. Thus orders were made by the primary judge on 9 April 2018 listing the matter for a show cause hearing estimated to be half a day, and setting a timetable for the filing of evidence, submissions, and lists of authorities, by the parties. A court book of almost 350 pages was also filed and served by Minister in accordance with those orders. As Senior Counsel for the Minister submitted, “in the present case we have a show cause hearing that took on many of the characteristics of a trial” and, indeed, “[g]iven the way the hearing proceeded below we say this isn’t really any different from a matter decided after a trial.”

12    Ultimately it was not contended that these matters affected the characterisation of the orders made below or in themselves sounded in appealable error. Nonetheless, in such circumstances it is difficult to see the utility of employing the show cause procedure and in particular how dismissal under r 44.12 in such circumstances furthers the objects in r 1.03 of the FCC Rules to use streamlined processes and avoid undue expense and delay. Furthermore, it must be borne in mind that such procedural decisions have substantive implications because, where a matter is dismissed on a show cause hearing rather than at trial, the applicant has no right to appeal but only a right to seek leave to appeal by virtue of r 44.12(2), FCC Rules and s 24(1A) of the FCA Act. Dismissing an application under r 44.12 despite the matter proceeding as if to trial also increases the risk that the Court will fall into error. In particular, it may lead the Court not merely to determine whether the application is arguable, but to determine the substantive merits of the case, albeit that I agree that the primary judge did not fall into that error in this case: see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (the Court)).

Associate:

Dated:    22 February 2019

REASONS FOR JUDGMENT

DERRINGTON AND WHEELAHAN JJ:

Introduction

13    The appellant brings this appeal against orders of the Federal Circuit Court of Australia made 19 July 2018 by which the appellant’s application to that Court was dismissed in the exercise of power under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) to dismiss a proceeding upon an application to show cause. The primary judge held that the appellant’s application had no reasonable prospect of success: SZTVU v Minister for Home Affairs [2018] FCCA 1962 at [20]. Under r 44.12(2) of the FCC Rules, a dismissal under r 44.12(1)(a) is interlocutory, and this appeal is brought by leave of the Court given 7 September 2018: SZTVU v Minister for Home Affairs [2018] FCA 1394.

Background

14    The appellant is a Sri Lankan citizen who arrived in Australia by air on 23 March 2013. The appellant was refused immigration clearance, and was detained under s 189 of the Migration Act 1958 (Cth) (Act) on the ground that the appellant was an unlawful non-citizen. He has remained in detention.

15    On 26 March 2013, the appellant lodged an application for a protection visa. On 23 September 2013, a delegate of the Minister refused the application. The appellant then applied to the Refugee Review Tribunal to have the delegate’s decision reviewed. On 8 January 2014 the Tribunal affirmed the delegate’s decision.

16    The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court. On 19 June 2015 the Federal Circuit Court dismissed the application: SZTVU v Minister for Immigration and Border Protection [2015] FCCA 1620. The appellant appealed that decision of the Federal Circuit Court to the Federal Court, and that appeal was dismissed on 17 December 2015: SZTVU v Minister for Immigration and Border Protection [2015] FCA 1449.

17    Because the appellant had been refused a protection visa, s 48A of the Act precluded the appellant from making a further application for a protection visa, subject to the Minister exercising a personal power under s 48B to determine otherwise. By letter dated 5 September 2017 an officer of the Department of Immigration and Border Protection (Department) advised the appellant that the Minister had exercised his power under s 48B of the Act to allow the appellant to make a further application for a protection visa, following the release of a report on the Department’s website which unintentionally enabled access to some of the appellant’s personal information. The letter also stated that if the appellant made a valid application for a temporary protection visa, or a safe haven enterprise visa, the application would be considered under the Fast Track Assessment process, because the appellant had been specified as a fast track applicant in a legislative instrument made by the Minister under subsection 5(1AA)(b) of the Act. The letter concluded by stating that for processing and correspondence purposes, the appellant had been given a “Personal Identification Digit” (PID), which was recorded at the top of the letter as “0098107590”.

18    On 6 September 2017, the appellant applied for a Temporary Protection subclass 785 Visa. By letter to the appellant dated 12 September 2017, an officer of the Department acknowledged that the application had been assessed as a valid application.

19    On 30 November 2017, a delegate of the Minister refused the appellant’s application for a visa. The delegate also stated that the appellant was an “excluded fast track applicant” because he had made claims for protection in countries other than Australia that were refused by those countries: see the definition of an excluded fast track applicant in s 5(1) of the Act.

20    On 21 December 2017, the appellant filed an application in the Administrative Appeals Tribunal seeking a review of the refusal dated 30 November 2017 to grant the appellant a visa.

21    On 18 January 2018, the Tribunal wrote to the appellant stating that –

According to information obtained from the Department of Home Affairs’ electronic records, your Person Identification Digit is 0098107590. The Person Identification Digit 0098107590 is included in Schedule 1 to Instrument IMMI 17/015, so it appears that you are a ‘fast track applicant’. Thus, I am of the view that your application is not a valid application as a decision made in applicant is not a decision which can be reviewed by us.

22    On 6 February 2018, the lawyers for the appellant provided the Tribunal with statement of the appellant in support of the validity of the application to the Tribunal.

23    On 13 February 2018, the Administrative Appeals Tribunal decided that it did not have jurisdiction to hear the appellant’s application for review. The Tribunal held that the decision of the delegate of 30 November 2017 was a “fast track decision”, which was excluded from its review jurisdiction by s 411(2)(c) of the Act. The Tribunal held that the appellant was a “fast track applicant” because he was specifically identified as a “fast track applicant” in the instrument referred to in the passage from the communication from the Tribunal set out under paragraph [21] above. We shall later consider in more detail the definition of “fast track applicant” in the Act, and the validity of the instrument.

24    On 16 March 2018, the appellant filed an application in the Federal Circuit Court seeking judicial review of the decision of the Administrative Appeals Tribunal pursuant to s 476 of the Act. The appellant submitted to the Federal Circuit Court that the Instrument was ineffective to specify the appellant as a “fast track applicant” on the ground that the specification of the applicant as a “fast track applicant” was outside power. We shall refer to the submission in further detail later in these reasons. The primary judge considered that there was no arguable case that the instrument was invalid, and as referred to at [13] above, on 26 July 2016 dismissed the appellant’s application on the ground that the application had no reasonable prospect of success.

The legislation

25    Part 7AA of the Act was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the 2014 Amendment Act) to provide for what the simplified outline in s 473BA of the Act describes as “a limited form of review” of a “fast track decision” constituted by a refusal to grant a protection visa to an applicant statutorily designated to be a “fast track applicant”. A valid application for a protection visa that is made by a “fast track applicant” is determined by the Minister in the same way as a valid application for any other visa made by any other applicant. If the Minister refuses to grant a protection visa to a “fast track applicant”, then under s 473CA of the Act the Minister must refer the decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made. Under s 411(2)(c) of the Act, a “fast track decision” is excluded from the “Part 7-reviewable decisions” that may be the subject of an application to the Administrative Appeals Tribunal for review. Some “fast track applicants” are excluded from any review process if they are an “excluded fast track review applicant”. For a more complete description of the scheme established by Part 7AA of the Act, see Plaintiff 174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 at [7]-[38].

26    A “fast track applicant” is defined in s 5(1) of the Act as constituting two categories of person –

fast track applicant means:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

(ii)    to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

(iii)    who has made a valid application for a protection visa in accordance with the determination; or

(b)    a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).

Note:    Some unauthorised maritime arrivals born in Australia on or after 13 August 2012 may not be fast track applicants even if paragraph (a) applies: see subsection (1AC).

27    In issue in this appeal is whether the appellant falls within the second category, namely a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph 5(1AA)(b).

28    Paragraph 5(1AA)(b) of the Act is the instrument-making power referred to in paragraph (b) of the definition of “fast track applicant” –

(1AA)    The Minister may make a legislative instrument for the purposes of the following provisions:

(a)    paragraph (b) of the definition of excluded fast track review applicant in subsection (1);

(b)    paragraph (b) of the definition of fast track applicant in subsection (1).

29    The Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017 (Cth) (Instrument) was made on 26 July 2017. The primary judge stated at [13] that the Instrument was put into evidence. The full text of the Instrument is as follows –

Part 1 – Preliminary

1    Name

This instrument is the Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017. This instrument may also be cited as IMMI 17/015.

2    Commencement

This instrument commences on the day after registration on the Federal Register of Legislation.

3    Authority

This instrument is made under paragraph 5(1AA)(b) of the Migration Act 1958.

4    Definitions

In this instrument:

Act means the Migration Act 1958.

5    Purpose

(1)    This instrument is made for the purpose of paragraph (b) of the definition of fast track applicant in subsection 5(1) of the Act.

(2)    This instrument specifies a person who is a fast track applicant.

Part 2 – Fast track applicants

6    Person who is a fast track applicant

A person specified by reference to their Department of Immigration and Border Protection Person Identification Digit in Schedule 1 to this instrument is a fast track applicant.

30    Schedule 1 of the Instrument lists 86 Personal Identification Digits, which include the digit “0098107590” which was the PID for the appellant that was recorded in the letter from the Department to the appellant dated 5 September 2017, referred to in paragraph [17] above.

31    The Statement of Compatibility with Human Rights which accompanied the Explanatory Statement for the Instrument states that the persons whose identification numbers are listed in the Instrument are those unauthorised maritime arrivals (UMAs) and non-UMAs who do not fall within the current definition of fast track applicant and who have raised claims in relation to an unintentional disclosure of their personal information on the departmental website (data breach) on 11 February 2014. The Statement went on to explain –

These persons are currently barred from making a valid application for a Protection visa by either the section 46A bar, because they are UMAs, or by section 48B as they have previously made a Protection visa application which was refused (in some cases they are barred by both).

The Government wishes to provide access to the Australian Protection visa assessment process for these persons. The Government considers that the ‘fast track process’ is the appropriate mechanism for the consideration of these persons’ Protection visa applications.

The effect of this Instrument is that if the Minister lifts the relevant application bars in the Act, the persons mentioned in this Instrument will have their claims for protection assessed in Australia through the fast track assessment process.

32    It is also desirable to set out the terms of s 48A(1) and s 48B(1) of the Act which are referred to at [17] above, because they are material to the appellant’s argument in this Court –

48A    No further applications for protection visa after refusal or cancellation

(1)    Subject to section 48B, a non-citizen who, while in the migration zone, has made:

(a)    an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

(b)    applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

…

48B    Minister may determine that section 48A does not apply to non-citizen

(1)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

The proceeding in the Federal Circuit Court

33    In the Federal Circuit Court the appellant by an amended application dated 16 July 2018 sought orders that the decision of the Tribunal be quashed, and that a writ of mandamus issue to the Tribunal requiring it to consider the appellant’s application for review according to law. In addition, the appellant sought a declaration that the Instrument is invalid in so far as it purports to specify the appellant as a “fast track applicant”, and a declaration that the appellant is not a “fast track applicant” within the meaning of s 5(1AA)(b) of the Act. The grounds of the application rested on the claim that, at the time the Instrument was made, the appellant had made no extant application for a protection visa under the Act, and was therefore not an “applicant” for the purposes of the defined term “fast track applicant” in s 5(1) of the Act.

34    On 9 April 2018, the Federal Circuit Court ordered that the proceeding be fixed for the hearing of an application to show cause under r 44.12 of the FCC Rules. Procedural orders were made for the filing of a court book, any amended application, affidavit evidence, and written submissions. Rule 44.12(1)(a) of the FCC Rules provides that the Federal Circuit Court may dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed. Rule 44.12 must be read with r 44.13, which confines the applicant to the relief sought and the grounds mentioned in the application.

35    On 19 July 2018, the primary judge dismissed the application for judicial review of the Tribunal’s decision in exercise of the Federal Circuit Court’s powers under r 44.12 of the FCC Rules, holding at paragraph [20] of his reasons that the application had “no reasonable prospect of success” (cf, Federal Circuit Court of Australia Act 1999 (Cth), s 17A(2)(b)). After referring to the Instrument and the references in Schedule 1 thereof to particular persons identified by an anonymized reference number, the primary judge held that –

14.     … It is apparent on the face of the schedule that those are persons who have all sought protection, whether successfully or unsuccessfully. It is apparent that all the persons are non-citizens. The language of the instrument reflects a valid exercise of the instrument making power in s 5(1AA) of the Act.

36    The primary judge stated at [15] that he did not accept that there was any arguable case that the Instrument was invalid or in excess of the instrument-making power, and that he did not accept that the instrument-making power was the subject of a reasonable argument as to its validity. In this regard, after referring to the fact that the appellant had previously been an applicant for a protection visa, the primary judge stated that –

16.     … Even if words of limitation were to be read in, they would not be words that required the applicant to be subject of a current protection visa application. It is apparent that the scope of the instrument-making power relates to a person who had unsuccessfully sought protection, which would include the applicant in the present case…

The grounds of appeal

37    The notice of appeal raises six grounds of appeal which, as argued by the appellant, raise two issues. The appellant also sought leave to file an amended notice of appeal which raised a third issue.

38    First, by ground 1 the appellant challenges the primary judge’s exercise of the discretionary power under r 44.12 of the FCC Rules summarily to dismiss the appellant’s application. The appellant submits that the primary judge did not apply the appropriate standard to evaluate the appellant’s case on a show cause hearing, but undertook a substantive evaluation of the appellant’s arguments.

39    Second, by grounds 2 to 6 the appellant alleges error in the primary judge’s decision on the ground that the Instrument did not validly specify the appellant as a “fast track applicant”.

40    Third, the appellant sought leave to amend the notice of appeal to raise a seventh ground of appeal which is in the following terms –

7.    The primary judge erred by finding at [17] that the Tribunal was correct to find that the Appellant was “a person specified by an anonymised particular reference” in IMMI 17/015 and that the Appellant was a 'fast track applicant' when there was no basis for those findings.

41    As argued by the appellant, the proposed seventh ground put in issue whether, at the time the Minister made the Instrument on 26 July 2017, the appellant had been given the Personal Identification Number, “0098107590”. At the hearing, the Court refused leave to the appellant to add the proposed seventh ground.

Grounds 2 to 6

42    It is convenient to consider first the parties’ arguments in support of grounds 2 to 6 before considering whether the primary judge applied the correct principles in relation to the evaluation of the appellant’s case for the purposes of exercising the discretionary power under r 44.12 of the FCC Rules to dismiss the proceeding.

Grounds 2 to 6 - the appellant’s submissions

43    Counsel for the appellant submitted that the instrument-making power in s 5(1AA)(b) of the Act is limited to specifying as a “fast track applicant” persons who are protection visa applicants, and that the provision cannot have been intended to create a power in the Minister to designate any “person” as a “fast track applicant” for the purposes of the Act.

44    The appellant submitted that a “fast track applicant” can only meaningfully be a subset of protection visa applicants. The appellant submitted that this construction accorded with the ordinary meaning of the word “applicant” in the defined term, and is consistent with the ordinary interpretation of “fast track applicant” as a type or sub-class of applicant.

45    In support of these submissions, the appellant argued that paragraph (a) of the definition of “fast track applicant” in s 5(1) is limited by sub-paragraph (a)(iii) to persons who have “made a valid application for a protection visa”. As for paragraph (b) of the definition, the appellant referred to paragraph [733] of the Explanatory Memorandum to the Bill that led to the 2014 Amendment Act (emphasis added) –

New paragraph s 5(1AA)(b) will provide that the Minister may make a legislative instrument for the purposes of paragraph (b) of the definition of fast track applicant in subsection 5(1). The intention is to include in the fast track assessment process, other persons who are not specified in paragraph (a) of the definition of fast track applicant within this definition, any persons brought within the definition of fast track applicant will either be an excluded fast track review applicant or a fast track review applicant.

46    The appellant argued that the implication is that a “fast track applicant”, under both paragraphs (a) and (b) of the definition, is a person who is the subject of an “assessment process” in respect of a “protection visa” which will be determined by a “fast track decision”, that is, a sub-category of person who has an extant valid application for a protection visa. The appellant submitted that s 473BB of the Act contains a note which supports this construction of “fast track applicant” as a sub-category of protection visa applicants which states (emphasis added) –

Fast track decisions are decisions (subject to some exceptions) to refuse to grant protection visas to certain applicants, known as fast track applicants. Some specified fast track applicants are known as excluded fast track review applicants; all others are known as fast track review applicants.

47    The appellant submitted that the only purpose of the power to specify a person as a “fast track applicant” is to provide that the fast track assessment process under Part 7AA of the Act applies to that person’s protection visa application (subject to the person’s subsequent designation as an excluded fast track review applicant), and that therefore the power in s 5(1AA)(b) to specify a person as a “fast track applicant” is limited to persons who have an extant protection visa application.

48    The appellant submitted that to the extent that there is doubt about the scope of s 5(1AA)(b), it ought to be read narrowly because the effect of specifying a person as a “fast track applicant” is that the person is deprived of the opportunity ordinarily available under the Act to seek a full merits review in the Administrative Appeals Tribunal. The appellant relied on the decision of Finn J in Buck v Comcare (1996) 66 FCR 359 at 364, cited by the Full Court in Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449 at 458 [33]. In Buck v Comcare Finn J referred to statutory rights that are of sufficient significance that, where there may be doubt as to Parliament’s intention, the courts should favour an interpretation which safeguards the individual. In an allusion to the principle of legality, Finn J stated –

To confine our interpretative safeguards to the protection of “fundamental common law rights” is to ignore that we live in an age of statutes and that it is statute which, more often than not, provides the rights necessary to secure the basic amenities of life in modern society.

49    The appellant submitted that at the time the Instrument was made the appellant had no extant application for a protection visa and was prevented from making an application by s 48A of the Act. Accordingly, s 5(1AA)(b) of the Act did not empower the Minister to specify the appellant as a “fast track applicant”.

Grounds 2 to 6 - the Minister’s submissions

50    The Minister submitted that there is no textual support for the interpretation of s 5(1AA)(b) advanced by the appellant. Parliament has defined “fast track applicant” by reference to two categories of “persons”. The first is that in sub-paragraph (a), being “persons” who have each of the particular characteristics stated in (a)(i)-(iii). The second is the category in sub-paragraph (b), being persons who are, or are within a class of persons who are, specified by legislative instrument.

51    The Minister submitted that in contrast to sub-paragraph (a) of the definition of “fast track applicant”, sub-paragraph (b) of the definition and s 5(1AA)(b) contain no express statement of the person, or the characteristics of that person (or class of person), who may be specified as a “fast track applicant” in a legislative instrument. The Minister argued that the fact that Parliament has chosen expressly to limit sub-paragraph (a) by reference to, inter alia, whether a protection visa application has been made, but has chosen not to so limit sub-paragraph (b), strongly suggests that sub-paragraph (b) is not limited.

52    As to the appellant’s submission that the defined term “fast track applicant” must be limited to persons with extant applications because the defined term itself includes the word “applicant”, the Minister referred to the reasons of McHugh J in Kelly v R (2004) 218 CLR 216 at 253 [103] where his Honour stated that the proper course is not to construe the definition, but to read the words of the definition into the substantive enactment and then to construe the substantive enactment.

53    As to the appellant’s reliance on the Explanatory Memorandum to the Bill for the 2014 Amendment Act referred to at paragraph [45] above, the Minister submitted that it does not point towards the construction argued by the appellant. The Minister emphasised the use in paragraph [733] of the Explanatory Memorandum of the term “other persons who are not specified in paragraph (a)…”. The Minister also relied upon paragraphs [752]-[754] of the Explanatory Memorandum which, in referring to the instrument-making power, states (at [752]) that the purpose of the power is “to provide the Minister with the flexibility and ability (emphasis added) to include other cohorts in the definition of … ‘fast track applicant’”, and that there is no suggestion that the power to make the legislative instrument is to be exercised only once a person has actually made a valid visa application.

54    As to the appellant’s reliance on the fact that the specification of a person as a “fast track applicant” under s 5(1AA)(b) might limit their rights of merits review as a reason to construe the provision narrowly, the Minister submitted that the Explanatory Memorandum makes clear that the intention behind the power in s 5(1AA)(b) to specify a person as a “fast track applicant” is to limit merits review rights.

55    The Minister also submitted that in any event, designation of a person as a “fast track applicant” has consequences for that person only if and when he or she applies for a protection visa; it is of no moment otherwise, and the fact that the person might never make such an application says nothing about the validity of the instrument.

56    As to the appellant’s submission that the instrument-making power in s 5(1AA) of the Act cannot have been intended to create a power in the Minister to designate any “person” as a “fast track applicant” for the purposes of the Act, the Minister submitted that the designation of a person as a “fast track applicant” has consequences for that person only if and when he or she applies for a protection visa, and that the fact that the person might never make such an application says nothing about the validity of the instrument.

Grounds 2 to 6 – consideration

57    It is instructive to examine what work the term “fast track applicant” performs in the legislation. The term “fast track applicant” is deployed in the Act by other defined terms. The definition of “fast track decision” in s 5(1) of the Act commences as follows –

fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:

(a)    because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or

(b)    relying on:

(i)    subsection 5H(2); or

(ii)    subsection 36(1B) or (1C); or

(iii)    paragraph 36(2C)(a) or (b).

58    A “fast track decision” can be made only in relation to an applicant who has made a valid visa application. This is in consequence of s 47(3) of the Act which, while imposing a duty on the Minister to consider a valid application for a visa, mandates that the Minister is not to consider an application that is not a valid application, and also having regard to s 47(4) of the Act, which provides that a decision by the Minister that an application is not valid, and cannot be considered, is not a decision to refuse to grant the visa.

59    The term “fast track review applicant” is defined by s 5(1) of the Act as, “a fast track applicant who is not an excluded fast track review applicant”. The term “excluded fast track review applicant” is also defined by s 5(1) of the Act.

60    Both “fast track decision” and “fast track review applicant” are deployed in the definition of the critical term “fast track reviewable decision” in s 473BB of the Act –

fast track reviewable decision means:

(a)    a fast track decision in relation to a fast track review applicant; or

(b)    a fast track decision determined under section 473BC;

but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD.

61    The defined term “fast track applicant” therefore informs a number of other provisions of the Act which culminate in the duty on the Minister in s 473CA to refer a “fast track reviewable decision” to the Immigration Assessment Authority, and s 338(1) and s 411(2) of the Act which have the effect of excluding a “fast track decision” from the review jurisdiction of the Administrative Appeals Tribunal under Parts 5 and 7 of the Act respectively.

62    The appellant’s submissions invite the Court to construe paragraph (b) of the definition of “fast track applicant” so that it is limited to specifying “persons who are protection visa applicants”. We evaluate the appellant’s submissions on the basis that the task of statutory construction must begin with a consideration of the statutory text and “[s]o must the task of statutory construction end”: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39], citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47].

63    Paragraph (b) of the definition of “fast track applicant” is, relevantly, unambiguous on its face. It uses the terms “a person” and “a class of persons”. The reference in paragraph (b) to “classes of person” militates against the construction advanced by the appellant. There is no express limitation in the definition that would confine the instrument-making power in s 5(1AA) of the Act so that only persons, or classes of persons, who have made a valid application for a protection visa can be specified for the purposes of the definition. This may be contrasted with sub-paragraph (a) of the definition of “fast track applicant” which contains three cumulative conditions, including the condition in (a)(iii) that the person has made a valid application for a protection visa in accordance with a determination referred to in sub-paragraph (a)(ii). The absence of such a condition in paragraph (b) of the definition is a powerful consideration against the construction advanced on behalf of the appellant.

64    We do not consider that that there is anything about the context of the definition, including the operation of other provisions of the Act that deploy, or which are dependent upon, the definition of “fast track applicant”, that supports the construction advanced by the appellant. The operative provisions of the Act, such as s 473CA affect only persons who have made a valid application for a protection visa. This is a consequence of the content of the definition of “fast track decision” referred to at paragraph [57] above, and of s 47(3) of the Act referred to at paragraph [58] above which mandates that the Minister is not to consider a visa application that is not a valid application. There is therefore no incongruity that arises from the terms of the definition construed without the limitation advanced by the appellant.

65    In our view, there is no question of any absurdity that is to be avoided that might support the construction advanced by the appellant. The legislation is capable of having a harmonious operation without qualifying paragraph (b) of the definition of “fast track applicant”, because the operative provisions of the Act that are dependent upon the defined term apply only to persons who have made a valid application for a protection visa. If anything, it may be preferable that applicants for protection visas should be able to ascertain that they are “fast track applicants” before they make an application, given the restrictions on their rights of review, and the restrictions on the consideration on review of new information that are imposed by s 473DD of the Act. This consideration is also one of the factors that leads us to reject the appellant’s submission in reliance on dicta of Finn J in Buck v Comcare (1996) 66 FCR 359 at 364, that paragraph (b) of the definition of “fast track applicant” should be interpreted in the way advanced by the appellant so as to safeguard the presumptively superior rights of review conferred by Part 7 of the Migration Act: see also, Australian Postal Corporation v Forgie (2003) 130 FCR 279 at 292-293 [64]. To limit the operation of paragraph (b) of the definition of “fast track applicant” to persons who were applicants for protection visas at the time the instrument is made is not clearly a more beneficial construction.

66    As we have noted at [44] above, counsel for the appellant also submitted that the use of the word “applicant” in the defined term “fast track applicant” supports the appellant’s construction of the defined term so that the only persons who may lawfully be the subject of the instrument-making power in s 5(1AA) of the Act are persons who have an extant visa application at the time the instrument is made. There is some authority that suggests that a defined term may properly influence the meaning of its definition: see Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309 at 324. Bennion on Statutory Interpretation (7th ed (2017) LexisNexis Butterworths) at [18.6] refers to this influence as “the potency of the term defined”. Bennion cites as an example the speech of Lord Hoffmann in MacDonald v Dextra Accessories Ltd [2005] 4 All ER 107 at [18] –

…a definition may give the words a meaning different from their ordinary meaning. But that does not mean that the choice of words adopted by Parliament must be wholly ignored. If the terms of the definition are ambiguous, the choice of the term to be defined may throw some light on what they mean.

67    Bennion also cites Lord Hoffmann in Birmingham City Council v Walker [2007] 2 AC at [11] –

Although successor is a defined expression, the ordinary meaning of the word is part of the material which can be used to construe the definition.

68    In Manly Council v Malouf (2004) 61 NSWLR 394, Handley JA (Mason P agreeing) considered whether a defined term may properly influence the meaning of its definition, and stated at [8]-[9] –

8.    The word defined in a statute may properly influence the interpretation of the definition. See Conservative and Unionist Central Office v Burrell [1982] 1 WLR 522 at 525; [1982] 2 All ER 1 at 4, per Lawton LJ (CA). As F A R Bennion states (Statutory Interpretation, 3rd ed (1997) London, Butterworths, at 434): “Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court”.

9.    The citations to this passage include Delaney v Staples [1992] 1 AC 687 at 692 where Lord Browne-Wilkinson said: “The proper answer to this case turns on the special definition of ‘wages’ in section 7 of the Act. But it is important to approach such definition bearing in mind the normal meaning of that word”.

69    On the other hand, in Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 at 507, in response to a submission that a word in a defined term coloured the meaning of the definition, Gibbs J stated –

With all respect it is impermissible to construe a definition by reference to the term defined. The expression is given by the statute a special meaning which must be applied whether or not it accords with the ordinary meaning.

70    In Owners of Shin Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 404 at 419 the Court held that the use of a word in the term to be defined in that case did not colour the meaning to be given to the definition which followed it. As the Court said at 419, citing Gibbs J in Wacal Developments –

It would be quite circular to construe the words of a definition by reference to the term defined.

71    In the present case we do not accept that the use of the word “applicant” in the defined term “fast track applicant” colours the meaning of paragraph (b) of the definition so that only a person who is an applicant for a protection visa may be specified by an instrument made by the Minister under s 5(1AA) of the Act. The term “fast track applicant” is not a term of ordinary usage: it is an instance of a term that is given a special meaning by the definition in s 5(1).

72    Finally, we observe that while there are, no doubt, implied limits to the instrument-making power in s 5(1AA) of the Act so that it cannot be exercised in a way that is extraneous to its purpose, there is nothing about the text of the Instrument, or the Explanatory Statement to the Instrument, that supports the idea that the power in this case has been used for extraneous purposes.

Proposed Ground 7

73    The appellant sought leave to file an amended notice of appeal which proposed a new ground 7 to which we have referred to at paragraph [40] above. By that ground the appellant claimed that the primary judge erred by finding at [17] of the reasons for judgment that the appellant was “a person specified by an anonymised particular reference” in the Instrument, and that the appellant was a “fast track applicant” when there was no basis for those findings.

74    At the hearing of the appeal the Court refused leave to the appellant to amend the notice of appeal to include the proposed ground 7. What follows below are our reasons for refusing leave.

Proposed Ground 7 – Appellant’s submissions

75    In support of proposed ground 7, counsel for the appellant submitted that, while the letter to the appellant dated 5 September 2017 (which is referred to at paragraph [17] above) informed the appellant of his PID, there was no evidence that the appellant had been informed of his PID at any time before the letter of 5 September 2017, and there was no evidence that the PID had been allocated to the appellant at the time the Instrument was made on 26 July 2017. Counsel for the appellant submitted that if the appellant was given the PID by the Department or any other person after the date the Instrument was made, the reference to that PID in the Instrument could not have been intended to refer to the appellant.

76    Counsel for the appellant further submitted that the appellant could not have been specified as a “fast track applicant” by the Instrument by giving him the PID after the Instrument was made, because there is no power under s 5(1AA)(b) of the Act to specify a persons as a “fast track applicant” other than by making a legislative instrument.

77    Counsel for the appellant also submitted that, even if there had been evidence before the Federal Circuit Court that the appellant had been allocated the PID prior to the making of the Instrument, there would still be no proper basis for a finding that the appellant was a person referred to in the Instrument. Counsel referred to the definition of “personal identifier” in s 5A of the Act, and submitted that the term “Personal Identification Digit” is not defined by the Act with the consequence that the Act does not empower a person to give a PID to a particular person.

Proposed Ground 7 – Minister’s submissions

78    Counsel for the Minister submitted that the issue underlying proposed ground 7 is one in relation to which the appellant would bear the onus at any final hearing, and that the appellant would require evidence to prove that he was not a person who came within the scope of the Instrument as properly construed. Further, prior to the show cause hearing on 19 July 2018, leave had been granted to the appellant to file an amended application, and there was therefore an opportunity in the proceeding below to formulate all of the grounds on which the appellant wished to rely and to adduce evidence in support of them, at which point the Minister could have responded. Counsel for the Minister relied on the procedural orders that are referred to at paragraph [34] above, which provided for a court book and for affidavit evidence, and submitted that the appellant’s case might have been met by evidence.

79    In relation to the appellant’s alternative argument in support of proposed ground 7 relating to the absence of any reference in the Act to a PID, counsel for the Minister submitted that the term “Personal Identification Digit” does not purport to be a statutory term and that no statutory power is needed for the Department to refer to a person by such a designation. Counsel for the Minister submitted that there is no reason why such a designation cannot form the factum upon which the Instrument operates because whether a particular individual is in fact designated by such a number in the Department’s records, and if so when it was allocated, are issues that can be tested by evidence in the conventional way.

80    Counsel for the Minister further submitted that, by reference to the text of the Instrument and the Statement of Compatibility with Human Rights which accompanied the Explanatory Statement for the Instrument, that the Instrument was made on the footing that the PIDs were referrable to known persons whose personal data had been unintentionally disclosed, and that the question whether the appellant had been allocated his PID at the time the instrument was made was an evidentiary issue that could have been speedily resolved if the issue had been raised below.

Proposed Ground 7 – consideration

81    There are three reasons for our refusal of the application for leave to file an amended notice of appeal so as to raise proposed ground 7.

82    First, we consider that there is nothing in the appellant’s argument to this Court that, because the term “Personal Identification Digit” is not defined by the Act, the Act does not empower a person to give a PID to a particular person for the purposes on the instrument-making power in s 5(1AA). In support of this argument the appellant referred by way of comparison to the definition of “personal identifier” in s 5A of the Act. However, the term “personal identifier” has a different purpose, and is defined in terms that relate to the ascertainment of personal attributes, such as fingerprints, height, weight, photographs, recordings, iris scans, and signatures. In general, the Act requires persons to provide personal identifiers (see, for example, s 257A and s 261AA). Furthermore, the Act contains provisions that are directed towards maintaining confidentiality of identifying information, and limiting the purposes for which disclosure of that information may be made: s 336E to s 336FD.

83    Paragraph (b) of the definition of “fast track applicant” (set out under [26] above) contemplates that a legislative instrument made under s 5(1AA) of the Act may specify a person, or a class of persons for the purposes of that paragraph. Whether a particular person has been specified in an instrument for the purposes of paragraph (b) of the definition of “fast track applicant” either individually, or as a member of a class, is a question of fact. But there is nothing in the legislation which in our view precludes the use of identifying numbers. The use in the Instrument, which must be tabled before the Parliament, of identifiers that do not publicly identify the persons specified in the Instrument, is consistent with other provisions of the Act, such as s 91F(4), s 91L(4), s 91Q(5), s 195A(7), s 197AG(2), s 198AE(5), and s 198AJ(3) which, in the circumstances addressed by those provisions, prohibit the Minister from identifying persons in documents tabled before Parliament.

84    Second, the evidentiary foundation for the idea that the appellant had not been allocated his PID at the time the Instrument was made is, at best, slim. The appellant’s case rests principally on the letter to the appellant from the Department dated 5 September 2017 as being the first notification he received that a PID had been allocated to him. However, the terms of the letter do not speak to when the PID was allocated, save that the letter gives rise to an inference that the PID was allocated to the appellant at some time before the letter was sent. Against the terms of the letter are the terms of the Instrument itself, when read with the Statement of Compatibility with Human Rights. That Statement provides (inter alia) –

Under paragraph 5(1AA)(b), the Instrument specifies persons who have a departmental Person Identification Digit listed in the Instrument to be fast track applicants. The persons whose identification numbers are listed in the Instrument are those unauthorised maritime arrivals (UMAs) and non-UMAs who do not fall within the current definition of fast track applicant and who:

•    have raised claims in relation to an unintentional disclosure of their personal information on the departmental website (data breach) on 11 February 2014.

These persons are currently barred from making a valid application for a Protection visa by either the section 46A bar, because they are UMAs, or by section 48B as they have previously made a Protection visa application which was refused (in some cases they are barred by both).

The Government wishes to provide access to the Australian Protection visa assessment process for these persons. The Government considers that the ‘fast track process’ is the appropriate mechanism for the consideration of these persons’ Protection visa applications.

The effect of this Instrument is that if the Minister lifts the relevant application bars in the Act, the persons mentioned in this Instrument will have their claims for protection assessed in Australia through the fast track assessment process.

85    The terms of the statement of compatibility set out above suggest that there might be support for the competing inference that the persons specified in the Schedule to the Instrument had been allocated PIDs at the time the instrument was made. We observe though that the statement of compatibility states that it was prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and therefore was required to be included in the explanatory statement for the Instrument for the purposes of laying before each House of Parliament: Legislation Act 2003 (Cth), s 15J(2)(f). Therefore, the statement of compatibility may not be admissible for the purpose of drawing inferences from its contents: Parliamentary Privileges Act 1987 (Cth), s 16(3)(c). However, it is not necessary that we form a concluded view on that question, which was not argued. In our opinion, because the appellant did not raise this issue in the Federal Circuit Court, the Minister was not able to consider adducing direct evidence, which may have resolved the issue one way, or the other.

86    This leads to the third reason for our rejection of the appellant’s application for leave to amend the appeal, which concerns the fact that the subject matter of the proposed ground 7 was not raised before the primary judge. In relation to trials, in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, Gleeson CJ, McHugh and Gummow JJ stated at 461 [51]-[52] (inter alia) –

[51]    … It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial [footnote omitted]. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action [footnote omitted]. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

[52]    As Water Board v Moustakas (1988) 180 CLR 491 at 498 makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is “necessary to look to the actual conduct of the proceedings”. …

87    Counsel for the appellant frankly conceded that the arguments in support of proposed ground 7 had not been put to the primary judge. Because of the way the issues were framed by the appellant below, no occasion arose for the Minister to address by evidence the question whether a PID had been allocated to the appellant at the time the Instrument was made. It also follows that there was no error made by the primary judge in failing to consider arguments that were not put to him by the appellant at the hearing of the application to show cause.

88    This Court has no original jurisdiction in most migration matters, and ordinarily powers exercisable by an appellate court are exercisable only where the order the subject of the appeal is affected by some error: CDJ v VAJ (1998) 197 CLR 172 at [111]; Allesch v Maunz (2000) 203 CLR 172 at [23]. To entertain appeals otherwise than on the basis that ordinarily the issues must be settled at first instance runs the risk that the proceeding at first instance might become “little more than a preliminary skirmish”: Coulton v Holcombe (1986) 162 CLR 1 at 7. This is especially so having regard the terms of r 44.13(1) of the FCC Rules which confined the appellant at the hearing below to the relief sought and grounds mentioned in the amended application that was before the Federal Circuit Court. While the Federal Circuit Court had a discretionary power under r 1.06 of the FCC Rules to dispense with compliance with any rule, including r 44.13, no occasion arose to exercise that power in this case, because the matters the subject of the proposed ground 7 in this Court were not raised before the Federal Circuit Court (cf, SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 at [14] where the Federal Circuit Court had turned its mind to the dispensing rule). It was on these premises that the Minister conducted the case before the primary judge.

89    For these reasons, we refused the application for leave to file an amended notice of appeal that raised proposed ground 7.

Ground 1

90    Ground 1 of the notice of appeal is framed as follows –

The primary judge failed to apply the appropriate standard for finding that there was an arguable case as described by the High Court in Spencer v Commonwealth (2010) 241 CLR 118.

91    Spencer v Commonwealth (2010) 241 CLR 118, which is referred to in the first ground of appeal, concerned the summary power of the Federal Court in s 31A(2) of the Federal Court of Australia Act 1976 (Cth) to give judgment in a proceeding if the Court is satisfied that there is no reasonable prospect of successfully prosecuting the proceeding. Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) is in substantially the same terms as s 31A of the Federal Court of Australia Act. In Spencer v Commonwealth at [60], Hayne, Crennan, Kiefel and Bell JJ stated in relation to the power to give summary judgment under s 31A of the Federal Court of Australia Act that the Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success, and that that the power to dismiss an action summarily is not to be exercised lightly. Their Honours also stated at [53] that s 31A of the Federal Court of Australia Act departs radically from the basis upon which earlier forms of permitting the entry of summary judgment had been understood and administered, which required the formation of a certain and concluded determination that a proceeding would necessarily fail, which was illustrated by Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. This conclusion is confirmed by s 31A(3) of the Federal Court of Australia Act to which their Honours referred at [52] and [56], which provides that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success (see the corresponding provision in s 17A(3) of the Federal Circuit Court of Australia Act).

92    Rule 44.12 of the FCC Rules is in different terms. It does not contain any express qualification like that in s 17A(3) of the Federal Circuit Court of Australia Act. The condition which engages the power to dismiss an application is satisfaction by the Court that the application raises no “arguable case” for the relief claimed. Adopting the same approach to r 44.12 of the FCC Rules as that taken by Hayne, Crennan, Kiefel and Bell JJ in Spencer v Commonwealth at [58]-[60], we consider that one should begin with the text of r 44.12, which refers to no more than absence of satisfaction that there is an “arguable case”. Consistently with the reasoning of Hayne, Crennan, Kiefel and Bell JJ in Spencer v Commonwealth at [58], we should avoid the creation of a lexicon of words to capture the condition that is stated clearly enough in the text of r 44.12, namely absence of satisfaction that there is an “arguable case”. In evaluating whether there is an arguable case the Court may consider whether the case advanced in the application is reasonably arguable (cf, Dempster v National Companies & Securities Commission (1993) 9 WAR 215 at 262), but the power to dismiss an application summarily under r 44.12 of the FCC Rules should not be exercised lightly.

93    In this case, the primary judge’s reasons for judgment switch between the language of s 17A of the Federal Circuit Court of Australia Act, and the language of r 44.12 of the FCC Rules. Paragraphs [19] and [20] of the primary judge’s reasons refer to “no reasonable prospect of success”, but paragraphs [12] and [15], [16] refer to whether there is an “arguable case”. We do not think anything turns on this difference in language because on reading the primary judge’s reasons in their totality, it is tolerably clear that as a matter of substance the primary judge was not satisfied that there was an arguable case, thereby engaging the power under r 44.12 to dismiss the application.

94    We do not need to say anything more about ground 1 of the notice of appeal because, as the Minister submitted, no relief sought by the appellant turns on whether the primary judge applied “the appropriate standard” in determining to dismiss the application under r 44.12. We consider that, as a matter of substance, the construction arguments advanced by the appellant under grounds 2 to 6 should be rejected. It follows that the appellant is not entitled to the relief he claimed in his application to the Federal Circuit Court.

Conclusions

95    The application for leave to file an amended notice of appeal should be dismissed.

96    The appeal should be dismissed with costs.

97    The Court acknowledges the assistance that it received from senior and junior counsel for the appellant, who acted for the appellant on a pro bono basis. That assistance was essential in order to advance all the arguments that could reasonably be put on behalf of the appellant in this Court.

Associate:

Dated: 22 February 2019