FEDERAL COURT OF AUSTRALIA

BYN18 v Minister for Home Affairs [2020] FCAFC 80

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the primary Judge on 4 July 2019 be set aside and in lieu thereof, it be ordered that:

(a)    a writ of certiorari issue to quash the orders of the Federal Circuit Court of Australia made on 20 December 2018;

(b)    a writ of mandamus issue requiring the Federal Circuit Court of Australia (differently constituted) to consider according to law the appellant’s application for an extension of time filed on 17 April 2018.

3.    The first respondent pay the appellant’s costs of the proceeding before the primary Judge and the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Background

1    The principal question that was argued before us in this appeal was whether the giving of a notice under s 501CA(3) of the Migration Act 1958 (Cth) (“the Act”) is a “migration decision” as defined by s 5 of the Act. The primary Judge (Flick J) held that it was not essentially because the giving of a notice under s 501CA(3) does not constitute a decision but merely a step which puts in train a process that could lead to the revocation of a decision made under s 501CA of the Act to cancel the appellant’s visa.

2    The appellant’s visa (a Class XA Subclass 866 Protection visa) was cancelled under s 501(3A) of the Act after a delegate of the first respondent (“the Minister”) formed the view that the appellant had a substantial criminal record within the meaning of s 501(6)(a) of the Act and did not pass the character test. Notice of the decision was given to the appellant by letter from the Department dated 4 April 2017. The letter is signed by a unnamed person who is described as:

Position number: 60045441

National Character Consideration Centre

Department of Immigration and Border Protection

3    It is the appellant’s contention that the person who signed the letter did not hold a delegation from the Minister authorising him or her to do what was required of the Minister by s 501CA(3) of the Act. That is the point the appellant wishes to raise in an appeal were he to be granted the necessary extension of time.

The proceeding in the Federal Circuit Court

4    The proceeding before the primary Judge followed an unsuccessful application made by the appellant to a Judge of the Federal Circuit Court of Australia (“the FCC”) for an extension of time to apply for a writ of certiorari quashing what was said by the appellant to be a purported decision under s 501CA(3) of the Act by a person who did not hold an appropriate delegation from the Minister.

5    The FCC Judge (Judge Street) dismissed the appellant’s application for an extension of time on the basis that the FCC lacked jurisdiction: see BYN18 v Minister for Home Affairs [2018] FCCA 3838. Having held that he lacked jurisdiction, his Honour went on to express his views as to the merits of the application for an extension of time. We will say something about that aspect of his Honour’s judgment later in these reasons.

The proceeding before the primary judge

6    The appellant brought a proceeding in the Federal Court of Australia under s 39B of the Judiciary Act 1903 (Cth) for a writ of certiorari to quash the FCC Judge’s decision to dismiss the application for an extension of time on the basis that his Honour’s conclusion that he lacked jurisdiction was wrong as a matter of law.

7    The primary Judge held that the notification given to the appellant of the decision to cancel his visa pursuant to s 501(3A) was not a “decision” susceptible of judicial review: see BYN18 v Minister for Home Affairs [2019] FCA 1033. In support of this conclusion the primary Judge relied on the decision of Conti J in Chung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 442 (“Chung”) at [17]-[19]. That case concerned s 66 of the Act which required that the Minister notify an applicant of a decision to refuse to grant a visa. Section 66(1) provided that “[w]hen the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.” Conti J observed at [19] “… [f]or a decision-maker merely to communicate his or her decision to a person to be affected thereby, pursuant to his or her duty so to do, does not involve the making of a decision so to do within s 474(3), particularly where the decision-maker is subject to a statutory obligation so to do, whether explicit or implicit.” His Honour’s observations were endorsed by Gordon J, when sitting as a Judge of this Court, in MZXMI v Minister for Immigration and Citizenship [2007] FCA 1162 (“MZXMI”) at [12]. Subsequently, and after referring to Chung and MZXMI, Besanko J also observed that “there are difficulties in treating a notice as a decision”: see Kumar v Minister for Immigration and Citizenship (2009) 176 FCR 401 at 415 [76] (Stone and Greenwood JJ agreeing).

8    After referring to Chung and MZXMI the primary Judge said at [21]:

There is no reason why the same conclusion should not be reached in respect to the notification pursuant to s 501CA of a decision made pursuant to s 501(3A) of the Act. Nor is there any reason to conclude that the primary judge [Judge Street] erred in finding that the notification provided to the Applicant on 4 April 2017 did not constitute a “migration decision” susceptible of review by the Federal Circuit Court.

His Honour went on to conclude that the FCC Judge was correct in holding that the FCC had no jurisdiction to review the notification given to the appellant on 4 April 2017. The primary Judge therefore agreed with the decision of the FCC Judge and dismissed the appellant’s application for a writ of certiorari quashing the decision of the FCC. It is against the primary Judge’s decision dismissing the appellant’s application for a writ of certiorari that the appellant now appeals.

The relevant statutory provisions

9    Section 501(3A) of the Act is the source of the power relied upon by the delegate of the Minister in the present case to cancel the appellant’s visa. Where a decision has been taken under s 501(3A), a written notice setting out (inter alia) that decision must be given in accordance with s 501CA. Section 501CA relevantly provides:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

…

10    The provisions of the Act relevant to the jurisdiction exercised by the FCC are ss 5, 474, 476 and 477. Section 476 sets out the parameters of the jurisdiction conferred on the FCC in relation to “migration decisions”. Section 477 confers a statutory power to extend the time within which a proceeding with respect to which the FCC has jurisdiction may be commenced.

11    Section 477 relevantly provides:

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.

12    Sections 476 and 477 both refer to a “migration decision” which is relevantly defined in s 5 to mean:

migration decision means:

(a)    a privative clause decision; or

(b)    a purported privative clause decision; or

…

13    The phrase “privative clause decision” is defined in s 474 which relevantly provides:

Decisions under Act are final

(1)    A privative clause decision:

   (a)    is final and conclusive; and

(b)    must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)    is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)    In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3)    A reference in this section to a decision includes a reference to the following:

(a)    granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

(b)    granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c)    granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

   (d)    imposing, or refusing to remove, a condition or restriction;

(e)    making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

   (f)    retaining, or refusing to deliver up, an article;

   (g)    doing or refusing to do any other act or thing;

(h)    conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i)    a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

   (j)    a failure or refusal to make a decision.

(4)    For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision: …

THe appeal

14    At the hearing of the appeal the Minister submitted that the primary Judge was correct in holding that the FCC lacked jurisdiction because the decision in relation to which the appellant sought an extension of time was not a privative clause decision.

15    After the conclusion of the hearing of the appeal, the appellant drew our attention to the decision of the Full Court in EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230 (“EFX17”) (Greenwood, Rares and Logan JJ) given on 16 December 2019. The Minister then sought leave to file a written submission in relation to that decision. In that written submission counsel stated that the Minister had sought special leave to appeal to the High Court of Australia against the decision in EFX17, but that the Minister’s proposed appeal would not raise any challenge to the correctness of the Full Court’s conclusion that the FCC had jurisdiction to review for jurisdictional error a decision to give a notice under s 501CA(3) of the Act.

16    The phrase “privative clause decision” is defined in very broad terms in s 474 of the Act. For the purposes of the present appeal, we draw particular attention to subparas (a), (g) and (h) of s 474(3), the first of which includes the making of a determination of an administrative character.

17    Section 501CA(3) requires the Minister to give the applicant a written notice that sets out the original decision and particulars of the relevant information “… in the way that the Minister considers appropriate in the circumstances”. The Minister must give notice of the original decision to the person affected by it in the manner the Minister considers appropriate in the circumstances. The Minister is therefore required to determine in what way the relevant notice is to be given.

18    Section 501CA(4) permits the Minister to revoke the original decision if the Minister is satisfied that the person passed the character test, or that there is another reason why the original decision should be revoked. Section 501CA(5) provides that if the Minister revokes the original decision, it is taken not to have been made.

19    It is apparent from s 501CA(3), that the Minister must make a determination as to the way in which he or she considers the written notice required by the section is to be given to the person concerned. That determination is, in our opinion, properly characterised as a determination of an administrative character made under the Act. We are therefore satisfied that the giving of a notice under s 501CA(3) of the Act is a “privative clause decision” as defined by s 474 of the Act. It follows that we are also satisfied that the FCC had jurisdiction under s 476 to consider an application by the appellant for the review of that determination for jurisdictional error.

20    If the Minister did not consider how the notice should be given to the appellant but entrusted this function to a delegate who then made the relevant determination, then the FCC would have jurisdiction to determine whether the determination was made by a person duly authorised by the Minister and whether, as the Minister proposes to argue, a delegation in favour of that person under s 501(3A) of the Act is sufficient for that purpose. The Minister’s arguments for holding that such a delegation was sufficient for the purposes of s 501CA(3) were rejected by the majority (Greenwood and Rares JJ) in EFX17. It is that aspect of the decision (“the delegation issue”) in relation to which the Minister has sought special leave to appeal. For present purposes it is sufficient to note that the Minister no longer contends that the FCC lacked jurisdiction to hear and determine an application challenging the sufficiency of such a delegation.

The notice of contention

21    Were it not for the notice of contention relied upon by the Minister it would follow that the appeal should be allowed with costs. However, in the written submissions in which he effectively abandoned reliance on the primary Judge’s reasons, the Minister made clear that he continued to rely on the notice of contention filed by him which states:

Even if the primary judge (Flick J) was in error in concluding that the Federal Circuit Court was correct in concluding that the notification was not a “decision” susceptible of review within the Court’s jurisdiction under the Migration Act 1958 (Cth) (Act), the Federal Circuit Court determined that but for the finding of there being no jurisdiction, it would otherwise have dismissed the appellant’s application for an extension of time to seek judicial review under s.477 of the Act.

22    There were two matters relied upon by the FCC Judge when holding that the appellant’s application for an extension of time should be rejected.

23    The FCC Judge first referred to the judgment of Judge Manousaridis in Aciek v Minister for Immigration [2017] FCCA 3237 who rejected the arguments made by the Minister as to the sufficiency of the delegation in that case and who made a declaration to the effect that the letter given to the applicant in the proceeding was not a valid notice given by the Minister pursuant to s 501CA(3) of the Act. His Honour said that Judge Manousaridis’ decision in Aciek was plainly wrong for reasons said to have been identified in Megase v Minister for Immigration [2018] FCCA 3682 (“Megase”) in which his Honour had previously concluded that Judge Manousaridis’ decision in Aciek was plainly wrong.

24    We do not propose to embark upon a consideration of the correctness of Judge Manousaridis’ decision in Aciek. However, the reasons for judgment in Megase do not come to grips with the detailed reasoning of Judge Manousaridis in Aciek which is broadly consistent with that of Greenwood J at [163] and Rares J at [179] in EFX17. Markovic J in McCulloch v Minister for Home Affairs [2019] FCA 54 at [43]-[46] and Logan J (dissenting) in EFX17 at [253] disagreed with Judge Manousaridis’ reasoning in Aciek. That said, we consider that the reasons given by the FCC Judge in this case and in Megase for concluding that Judge Manousaridis’ decision was (at [14]) “plainly wrong” were wholly insufficient to support a conclusion to that effect or the FCC Judge’s conclusion (at [15]) that the appellant’s proposed appeal had “insufficient merit … to make an extension of time in the interests of justice in the circumstances of this case.”

25    In the written submissions filed by the Minister after the decision in EFX17 was given, the Minister submitted that the decision of Greenwood and Rares JJ on the delegation issue was “plainly wrong” and should not be followed by this Court: see Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492. That is not a submission which we can accept. Beyond stating that the reasoning of Markovic J in McCulloch and Logan J in EFX17 is to be preferred to that of Greenwood and Rares JJ in EFX17, the submission was not developed by the Minister. Whether the Minister puts the same submission to the High Court remains to be seen but we very much doubt that it could fairly be said that either Aciek or EFX17 is plainly wrong.

26    The second matter relied on by the FCC Judge concerned the appellant’s explanation for his delay in making an application for an extension of time. Although his Honour refers (at [11]) to a written statement made by the appellant that was apparently in evidence, he does not describe its contents other than to say that it referred to the appellant’s detention history and engagement with various lawyers. His Honour goes on to say in the same paragraph that “that statement does not however provide a satisfactory explanation according to the layout of circumstances [sic] of the present case which is substantial [sic].” His Honour’s reasons do not disclose why he considered the explanation in the appellant’s statement was not satisfactory. In our view there was no proper exercise of the FCC’s jurisdiction in this case: see Wade v Burns (1966) 115 CLR 557 per Barwick CJ at 555, Menzies J at 563, and Owen J at 568 and Canham v Australian Guarantee Corporation Ltd (1993) 31 NSWLR 246 per Kirby P at 263 (with whom Meagher JA agreed); cf. Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 72 FCR 125 (Hill J) at 132-133.

27    The Minister submitted that the appeal to this Court should now be stood over to await the outcome of his special leave application in EFX17. His submissions do not make clear what would happen in the event that special leave is refused. If special leave to appeal is granted the Minister would presumably then ask this Court to stand over further consideration of this appeal until after the outcome of his appeal in EFX17 is known. We do not think this is an appropriate course to take.

Disposition

28    We are satisfied that the primary Judge erred in holding that the FCC Judge lacked jurisdiction to deal with the appellant’s application for an extension of time. In essence the Minister now invites us to decline to set aside the primary Judge’s judgment and to refuse the appellant relief on discretionary grounds on the basis that the Full Court’s decision in EFX17 is plainly wrong and that the appellant’s explanation for his delay in seeking an extension of time was unsatisfactory. We do not propose to embark on any more detailed consideration of either of these matters. It seems to us that the preferable course is for us to set aside the primary Judge’s judgment, and make orders for the issue of writs of certiorari and mandamus quashing the judgment of the FCC, and requiring that it consider the application for an extension of time according to law. By the time the appellant’s application is listed for hearing, the outcome of the Minister’s special leave application in EFX17 is likely to be known. The Minister must pay the appellant’s costs of the proceeding before the primary Judge and the appeal.

29    There will be orders accordingly.

Associate:

Dated:    14 May 2020