FEDERAL COURT OF AUSTRALIA

Fisher v Minister for Immigration and Citizenship [2007] FCA 591

JURISDICTION – Federal Magistrates Court’s jurisdiction to determine whether a matter falls within its jurisdiction – jurisdiction of Federal Magistrates Court to transfer a matter over which it has no jurisdiction to the Federal Court – whether Federal Magistrates Court can grant an extension of time under s 477(2) of Migration Act 1958 (Cth) in a matter over which it has no jurisdiction – Federal Court’s original jurisdiction in relation to a migration decision – proceedings transferred from Federal Magistrates Court

PRACTICE AND PROCEDURE – application filed in joint registry of Federal Court and Federal Magistrates Court – whether registry staff responsible for filing application in appropriate court – whether documents evinced intention to file in Federal Magistrates Court

MIGRATION – cancellation of visa – appeal from Administrative Appeals Tribunal – application for extension of time – s 477A(2) Migration Act  – no explanation for delay – appeal having no prospect of success – application for extension of time refused

WORDS AND PHRASES – “proceeding pending”, “in relation to the decision”

Administrative Appeals Tribunal Act 1975 (Cth)

Federal Magistrates Act 1999 (Cth) s 39

Migration Act 1958 (Cth) ss 5, 5E, 474, 476, 476A, 477, 477A, 486A, 500, 501, 501F

Migration Litigation Reform Act 2005 (Cth)

Trade Practices Act 1974 (Cth) ss 52, 86A

Federal Court Rules (Cth) O 82 r 3

Migration (1993) Regulations (Cth) reg 154.411

Migration Reform (Transitional Provisions) Regulations (Cth) reg 22 and reg 23

Migration Regulations 1994 (Cth) reg 1.06

Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14, discussed

Khatri v Price (1999) 95 FCR 287, applied

McIntosh v National Australia Bank (1988) 17 FCR 482, distinguished

O’Neill v Minister for Immigration and Multicultural Affairs [2006] FMCA 1912, approved

Ogawa v Phipps (2006) 151 FCR 311, considered

Ogawa v Registrar of the High Court of Australia [2006] FCA 607, considered

Stewart v Pegasus Investments & Holdings Pty Ltd [2004] FMCA 712, approved

Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386, distinguished

RICARDO ANDREW FISHER v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ADMINISTRATIVE APPEALS TRIBUNAL

NSD 2430 OF 2006

STONE J

30 APRIL 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed

2.                  The applicant and the respondent each bear their own costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     The applicant, Ricardo Fisher, was born in Fiji but came to Australia in 1987 when he was about 7 years of age.  The nature of the various visas that permitted him to stay in the country will be discussed in due course.  The applicant has a substantial criminal record both as a juvenile and as an adult, including a conviction in March 2003 of threatening injury to a person with the intent to commit an indictable offence and of robbery while armed with an offensive weapon.  On 1 June 2006 a delegate of the Minister for Immigration and Multicultural Affairs decided to cancel the visas then held by the applicant on the basis that he did not pass the character test provided for by s 501(2) of the Migration Act 1958 (Cth) and that the discretion available to the respondent was not exercised in the applicant’s favour. 

2                     On 18 August 2006, the Administrative Appeals Tribunal affirmed the delegate’s decision.  The applicant then sought review of the Tribunal’s decision on the basis of jurisdictional error.  It is the way in which he did this and the timing of his application for review that give rise to the issues that I must now decide.  

Application for review of the decision of the Administrative Appeals Tribunal

3                     The Tribunal sent the applicant a copy of its decision and its reasons under cover of a letter dated 18 August 2006, the day on which the decision was made. It is agreed between the parties that the applicant received the letter on or about 24 August 2006.  In the second paragraph the letter stated, inter alia:

If you think the decision is wrong, you have the right to apply for review of, or appeal against, this decision to the Federal Court or the Federal Magistrates Court.  Please note that this right is limited to certain legal errors, and does not apply to errors of fact.  The court will decide if the Tribunal has made a relevant legal error in reaching its decision.  If you are considering an appeal, you may wish to seek legal advice without delay.

4                     The letter stated that there ‘may be time limits for lodging the application or appeal’ and advised that the applicant should contact ‘the relevant court’ about time limits ‘and whether they may be extended by the court’ (emphasis added).  The concluding paragraph of the letter referred the applicant to the websites of the Federal Magistrates Court (FMC) and the Federal Court for further information about applications and advised that he could also contact the Federal Court Registry ‘which is also the Registry for the Federal Magistrates Court’. 

5                     The applicant’s parents prepared an application for judicial review and on 11 October 2006 they took it to him at Villawood Detention Centre where he was in custody.  Mr Fisher signed the application and accompanying affidavit before a Justice of the Peace.  As is common with applications prepared by non-lawyers, there were a number of inconsistencies in the application both in form and substance.  The application is made on the form prescribed for the FMC but the accompanying affidavit is on the form used in the Federal Court.  On the face of it the application appears to seek a review of the delegate’s decision however one of the grounds of review refers to an alleged error made by the Tribunal.  Although the application included a request for an extension of time (insofar as the relevant box was ticked) the accompanying affidavit did not give any explanation for the delay or any reason why an extension should be granted despite there being clear instructions to this effect on the form.

6                     The evidence shows that at 4.23 pm on 11 October 2006 the applicant faxed 10 pages of documents to the Sydney registry shared by the Federal Court Magistrates Court and the Federal Court of Australia.  In addition to the application form and affidavit described above, there was a letter signed by the applicant’s parents addressed to the FMC.  In its opening paragraph the letter says that Mr and Mrs Fisher ‘wish to submit an application to the Federal Magistrate [sic] Court of Australia’.  Apparently these documents were lost in the Registry and were resent by Mrs Fisher on 28 November 2006.  There is a stamped version of the application that is dated 28 November 2006.  The respondent accepts that the documents were faxed on 11 October although no concession was made as to the nature of those documents.

7                     On 7 December 2006 the respondent filed a response to the application contending that, regardless of whether it was treated as seeking review of the delegate’s decision or the Tribunal’s, the FMC lacked jurisdiction in the matter.  The lack of jurisdiction is, in the former case by virtue of s 476(2)(a), and in the latter by virtue of s 476(2)(b) of the Migration Act.  In view of these provisions the applicant concedes that the FMC has no jurisdiction to deal with his substantive application for review.  On 12 December 2006, Lloyd-Jones FM made an order transferring the matter to this Court under s 39 of the Federal Magistrates Act 1999 (Cth).   

Was the application to the FMC or the Federal Court?

8                     The applicant submits that the FMC’s lack of jurisdiction is irrelevant because the documents faxed to the registry on 11 October constituted an application to the Federal Court and not to the FMC.  As I understand it, the argument is that the application was intended to be for the FMC or the Federal Court, whichever had jurisdiction to deal with the matter.  Counsel for the applicant, Mr Nair, submitted that once a document is filed in the joint registry it is merely a clerical or administrative task to forward it to the relevant court.  In transferring the application to this Court, he submits, the Federal Magistrate was merely performing one task in the chain of clerical tasks directed to bringing the application before the relevant court.  Mr Nair also submitted that the application only reached the FMC because it was misdirected.

9                     I accept that an application was faxed to the joint registry on 11 October 2006 but I do not accept that it was an application to the Federal Court.  I am satisfied that the applicant and his parents intended the application to be made to the FMC, irrespective of how they came to that view.  Not only was the application form clearly marked as being for the FMC but, equally significantly, the accompanying letter from the applicant’s parents (see [6] above) makes that intention plain.  I do not regard the fact that the affidavit was on a form appropriate to this Court as indicative of a contrary intention.   

10                  I also reject the submission that, beyond responding to the address on the documents, the registry staff have any role to play in deciding which of the two courts they serve should receive the application.  The notion that, irrespective of the form of the documents, it is their task to direct the application to the appropriate court is misconceived.  The decision as to which court has jurisdiction in relation to a matter is an exercise of jurisdiction and no such jurisdiction is vested in the registry clerks.  The documents were quite properly filed in the court to which they were addressed.

11                  Mr Nair placed considerable emphasis on his submission that the letter from the Tribunal misled the applicant by advising him that he could apply to the FMC or the Federal Court, thus creating the impression that he had a free choice between the two courts.  It is not clear where this submission was intended to lead.  At one stage Mr Nair was suggesting that the letter was so misleading as not to constitute notification and therefore the period within which applications for judicial review must be made had not yet started to run.  Even if the letter were misleading in the manner suggested I would reject this submission but, in any event, I do not accept that the letter was misleading.  While the opening sentence of the second paragraph (see [3] above) may be capable of creating that impression, read in its entirety, the letter does not do so.  It certainly does not purport to give definitive advice about appeal rights; it advises the applicant that legal advice may be desirable and that further information can be obtained from the websites of both courts.  As I have concluded that the letter was not misleading, the reasoning in Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386, on which the applicant relied, is not relevant to the present proceeding.

12                  The respondent submitted that, as the documents were filed outside the 28 day period within which, pursuant to s 477(1), applications to the FMC can be made, at best they could only constitute an application for an extension of time under s 477(2).  I accept that submission however I am inclined to the view that the documents were also capable of constituting an inchoate application should an extension of time be granted. 

The jurisdictional issues

13                  Once the documents were filed in the FMC, that Court had, at the very least, a limited jurisdiction to consider whether it had jurisdiction to deal with the application for an extension of time and with the substantive issues raised by the application.  This proposition was embraced by Katz J in Khatri v Price (1999) 95 FCR 287 at 290 where his Honour said:

…every Australian court must have at least a limited jurisdiction in every proceeding in which its jurisdiction is purportedly invoked, namely, a jurisdiction to determine whether it has the jurisdiction which has been purportedly invoked.  

14                  Federal Magistrate Lloyd-Jones transferred the proceeding to this Court.  His Honour did not publish reasons for this decision but presumably, and in my view, rightly, his Honour decided that jurisdiction both in relation to an extension of time and in relation to the substantive issues for review lay not with the FMC, but with the Federal Court of Australia. 

15                  The respondent accepts that his Honour had jurisdiction to decide the jurisdictional point but submits that, having reached the conclusion that he did not have any jurisdiction to review the Tribunal’s decision (or at least having given considerable weight to the  submission to that effect) his Honour had no choice but to dismiss the application.  In the respondent’s submission, the Federal Magistrate had no power to transfer the proceeding under s 39.  Therefore the proper course for this Court is to dismiss the present proceedings. 

16                  Alternatively, the respondent submits, that if the Federal Magistrate had power to transfer the proceeding under s 39, it could only do so in respect of the question that the FMC had jurisdiction to answer, namely whether the FMC had jurisdiction to review the Tribunal decision.  Accordingly, it is submitted, the FMC has only transferred this jurisdictional question to this Court, and therefore this Court may only determine the issue of the Federal Magistrates Court’s jurisdiction and may not review the decision of the Tribunal.  As the answer to the question whether the FMC had jurisdiction to review the decision of the Tribunal is clearly in the negative, it is submitted that this Court should dismiss the matter.  Counsel for the respondent, Mr S Lloyd, elaborated on this point in his written submissions:

The Minister contends that there is no proper basis for a court that lacks jurisdiction in respect of a matter to be empowered to transfer the substantive proceeding to a court that has jurisdiction in respect of it.  However the matter be analysed, this Court should determine that its jurisdiction is restricted to disposing of the purported transfer or limited transfer of the jurisdictional point that occurred.

17                  The core of the respondent’s argument is that the transfer of the proceeding is itself an exercise of jurisdiction in relation to the ‘substantive proceeding’. In support of this submission the respondent relied on Gummow J’s proposition that, ‘To remit or transfer a proceeding is to exercise jurisdiction in respect of it’; McIntosh v National Australia Bank (1988) 17 FCR 482 at 483.  I respectfully agree with this proposition, however, I do not accept that McIntosh is authority for the respondent’s submission that because the FMC had no jurisdiction to quell the controversy between the parties, it had no jurisdiction to transfer it to the Federal Court. 

18                   McIntosh raised questions of constitutional power that do not arise here.  It concerned a claim of contravention of s 52 of the Trade Practices Act 1974 (Cth) as well as other claims which included breach of fiduciary duty, negligence and breach of contract.  The respondent in McIntosh had raised the question of whether the accrued jurisdiction of the Court had been attracted in respect of the non-s 52 claims and contended that any jurisdictional difficulty could be resolved by transferring the proceeding to the appropriate State court pursuant to s 86A of the Trade Practices Act.   

19                  Gummow J observed that it was an essential step in the respondent’s submissions that the non-s 52 claims fell within s 86A because they were ‘any other matter for determination in the proceeding’.  His Honour commented that there was a difficulty in construing s 86A(1) as authorising a transfer of a matter in respect of which the Court had no jurisdiction.  His Honour explained the difficulty thus:

If that matter was not within the accrued jurisdiction, it would not fall within any of the heads in ss 75 and 76 of the Constitution (Cth).  Then in its operation in such cases, s 86A(1) of the TP Act would not be a law defining the jurisdiction of this Court or investing any State court with federal jurisdiction … If it were to be construed as suggested, s 86A(1) would go beyond the operation of a law within the scope of s 77 of the Constitution.

The incidental power in s 51(xxxix) of the Constitution would not appear to support a law authorising a federal court to exercise jurisdiction (whether by transferring the proceedings or deciding them itself) in respect of matters outside federal jurisdiction …

20                  There are two points that I would like to make about the decision in McIntosh:  first, the question was one of construction of s 86A(1) which provided for transfer of matters; second, Gummow J was persuaded that the proper construction of the section could not be that it authorised the transfers under consideration, because that construction would mean that the section was constitutionally invalid. 

21                  In this case the question is also one of construction of a transfer provision, namely s 39 of the Federal Magistrates Act.  This section provides:

(1)       If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court.

(2)       The Federal Magistrates Court may transfer a proceeding under this section:

(a)        on the application of a party to the proceeding; or

(b)        on its own initiative.

(3)       In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Magistrates Court must have regard to:

(a)       any Rules of Court made for the purposes of subsection 40(2); and

(b)       whether proceedings in respect of an associated matter are pending in the Federal Court; and

(c)        whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and

(d)       the interests of the administration of justice.

            …

(6)        An appeal does not lie from a decision of the Federal Magistrates Court in relation to the transfer of a proceeding under subsection (1).

22                  The respondent points out that s 39 requires that there be a proceeding ‘pending’ in the FMC for the power of transfer to this Court to arise and submits that a proceeding cannot be ‘pending’ in a court that does not have jurisdiction in respect of it.  This submission fails to take into account that while the Federal Magistrate did not have jurisdiction to review the Tribunal’s decision, his Honour did have limited jurisdiction in respect of the proceeding.  Mr Lloyd did not contend otherwise; in fact his submission was premised on the Federal Magistrate having jurisdiction to decide if his jurisdiction extended to the substantive issues. 

23                  That leaves open the question whether the Federal Magistrate had jurisdiction to transfer the matter to a court that has jurisdiction over the substantive issues.  Mr Lloyd relied on McIntosh as authority that there was no such jurisdiction, however, as demonstrated above, in McIntosh that proposition depended on the construction of s 86A(1) of the Trade Practices Act.  Section 39 is significantly different; it deals with the transfer from one court with federal jurisdiction to another.  The constitutional difficulties that were pertinent to the construction of s 86A(1) are not relevant to its construction. 

24                  Section 39 applies to a proceeding that is ‘pending’ in the FMC.  The Macquarie Dictionary gives the meaning of ‘pending’ as including ‘remaining undecided, awaiting decision’.  This is an appropriate description of the proceeding as it was until the Federal Magistrate made an order disposing of it.  That order could have been to dismiss it or, as occurred, an order to transfer it to this Court.  I see no reason why his Honour’s jurisdiction did not extend to the latter order.  

25                  The construction I have adopted is consistent with the views expressed on a number of occasions when the issue has come before the FMC; Stewart v Pegasus Investments & Holdings Pty Ltd [2004] FMCA 712 at [9] – 15], O’Neill v Minister for Immigration and Multicultural Affairs [2006] FMCA 1912 at [11] – [16].  Although there is no authority in this Court directly on point I note that in Ogawa v Phipps (2006) 151 FCR 311, which concerned a matter within the exclusive jurisdiction of the Federal Court, Finkelstein J made an order in the nature of mandamus requiring Phipps FM to order that the proceeding be transferred to the Federal Court.  The matter was so transferred and addressed by the Federal Court in Ogawa v Registrar of the High Court of Australia [2006] FCA 607, although ultimately it was dismissed by consent.

26                  I also find some support for the view I have expressed in considering as a whole the Migration Act provisions for judicial review.  Judicial review is the subject of Part 8 of the Act.  Division 1 of Part 8 deals with privative clauses and the finality of decisions made under the Act.  Division 2 deals with the jurisdiction and procedure of the courts and divides the power of judicial review of migration decisions between the FMC and the Federal Court of Australia. 

27                  The Tribunal’s decision of 18 August 2006 is the migration decision that is the subject of the present application.  The Tribunal’s review of the delegate’s decision to cancel the applicant’s visa was undertaken under s 500 of the Act.  As such the Tribunal’s decision is a ‘privative clause decision’ if it was made within jurisdiction; s 474.  If the decision was affected by jurisdictional error then, under s 5E, it is a ‘purported privative clause decision’.  Either way, the decision is a ‘migration decision’ as that term is defined in s 5(1) of the Act.  

28                  Under s 476, the FMC has the same original jurisdiction as the High Court in relation to migration decisions, other than in respect of the exceptions listed in s 476(2).  It is the exception in s 476(2)(b) that deprives the FMC of jurisdiction in this case.  The Federal Court has original jurisdiction in respect of migration decisions where one or other of the criteria listed in ss 476A(1) (a)-(d) is met.  

29                  Sections 476 and 476A were inserted into the Act by the Migration Litigation Reform Act 2005 (Cth) (the ‘Reform Act’).  The explanatory memorandum to the Bill that preceded that Act (the ‘Reform Bill EM’) states that the principal object of the reforms implemented by the legislation was to ‘improve the overall efficiency of migration litigation’ by, inter alia, improvements to court processes to facilitate the ‘quicker handling of cases’.  To dismiss at first directions an application incorrectly filed in the FMC, thereby requiring applicants and respondents to recommence in the Federal Court with entirely new documents, would hardly promote efficiency.

30                  As to the submission that this Court’s jurisdiction in respect of the transferred matter was limited to deciding the question of the jurisdiction of the FMC, I see no merit in it.  Such a conclusion is not mandated by my conclusion on the issue of transfer and it would certainly not improve the efficiency of migration litigation to restrict this Court to deciding an issue that the FMC could have decided for itself.

Statutory time limits and the Federal Court’s original jurisdiction

31                  As I mentioned in [28] above, the original jurisdiction of the Federal Court in relation to migration decision is granted under s 476A(1) ‘if, and only if’ one of the following paragraphs applies:

(a)       the Federal Magistrates Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Magistrates Act 1999; or

(b)               the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c)               the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or

(d)               the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

32                  There is, however, a strict time limit that applies to applications for a remedy to be granted in exercise of the Court’s original jurisdiction under ss 476A(1)(b) and (c) and the Court has a very limited power to extend that time limit.  The relevant provisions are found in s 477A which provides:

(1)       An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

(2)               The Federal Court may, by order, extend that 28 day period by up to 56 days if:

(a)               an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b)               the Federal Court is satisfied that it is in the interests of the administration of justice to do so.

(3)               Except as provided by subsection (2), the Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.

(4)               The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.

33                  Section 477 provides identical time limits for applications to the FMC in exercise of its original jurisdiction under s 476.  It should be noted that the time limits provided under s 477A do not apply to applications made under subsections (a) and (d) of s 476A(1).  Presumably this is because, in respect of the former, the time limits laid down by s 477 apply, and, in respect of the latter, the time limits are those laid down by the Administrative Appeals Tribunal Act 1975 (Cth).

Time limit applying to the present application

34                  The present application was filed in the FMC on 11 October 2006.  It is accepted on both sides that the actual date of notification of the Tribunal’s decision was 24 August 2006.  Thus the 28 day period within which to make an application for judicial review expired on 21 September 2006.  An application for an extension of time had to be made by 16 November 2006 and the maximum period of extension of the 28 day time limit would also have expired on that date.  The application filed on 11 October 2006 included an application (albeit somewhat cursory) for an extension of time which was therefore made within the prescribed 84 day period.  

35                  I have found that the application was made to the FMC.  As previously mentioned the Federal Magistrate did not make any order concerning the application for an extension of time.  In my view, he would not have had jurisdiction to do so in any case.  Section 477(2)(b) provides that before granting an extension of time the FMC must be satisfied not only that the application was made within the 84 days referred to above, but also that an extension ‘is in the interests of the administration of justice’.  The latter requirement would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.  An assessment of the prospects of success would require the FMC to consider at some level the merits of the application for judicial review which, by virtue of s 476, it does not have jurisdiction to do.

36                  The order that the application be transferred to this Court was made on 12 December 2006 and came before this Court for the first time on 18 December 2006.  Because the documents faxed on 11 October had been lost, there was initially some confusion about when Mr Fisher’s application was first filed.  As indicated at [6] above, this confusion has been resolved and the respondent accepts that the documents were faxed on that date.

37                  Applications for an extension of time to make an application for judicial review are subject in the Federal Court to the same time limits as apply in the FMC.  They apply, however, only in relation to applications that fall within its original jurisdiction pursuant to s 476A(1)(b) or (c).  As I noted in [33] above, they do not apply to applications that fall within the original jurisdiction of the Federal Court pursuant to s 476A(1)(a) or (d).  Subsections (c) and (d) are not presently relevant and therefore the question is whether the original jurisdiction of this Court in respect of the present proceeding arises under s 476A(1)(a) or (b).  The question is pertinent to the present application which was filed outside the application period for applications in either court and for which an extension of time is sought.

38                  Although the present proceeding was transferred to this Court pursuant to s 39 of the Federal Magistrates Act, in my view this Court’s original jurisdiction in relation to the migration decision made by the Tribunal arises not under s 476A(1)(a) but under s 476A(1)(b).  To explain this it is necessary to consider the overall approach of the Migration Act to judicial review of migration decisions taking into consideration the streamlining of the procedures for review effected by the Reform Act.

39                  The original jurisdiction of the High Court to review migration decisions arises under s 75(v) of Australia’s Constitution.  Consequently the legislature does not have power to direct the manner in which the power under that section is exercised or to restrict access to the remedies for which it provides, although it may be that some level of regulation is permissible so long as it does not ‘so curtail or limit the right or ability of applicants to seek relief under s 75(v) as to be inconsistent with the place of that provision in the constitutional structure …’; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 at [53].  The legislature’s power is not so restricted in relation to the jurisdiction of the FMC or the Federal Court. 

40                  Division 2 of Part 8 of the Migration Act allocates jurisdiction for the review of migration decisions between the FMC and the Federal Court.  The amendments to the Migration Act made by the Reform Act gave wider jurisdiction to the FMC than the Federal Court.  As a result there are only very limited circumstances in which it is possible to commence proceedings for review of migration decisions in the Federal Court; see s 476A(1)(b)-(d).  The policy behind the Reform Act is made clear in the following passages from the Reform Bill EM:

The key areas of reform in the Bill to improve migration litigation are:

(i)        directing migration cases to the FMC for more efficient handling

Directing migration cases to the FMC is central to the Government’s package of reforms for more efficient handling of migration cases.  The FMC was established to resolve expeditiously a high volume of less complex and shorter matters, making it a suitable forum for most migration cases.

The Federal Court will have limited jurisdiction under the Migration Act in relation to migration cases.  This will comprise, first, complex migration cases transferred from the FMC to the Federal Court and, secondly, migration cases involving judicial review of decisions of the Administrative Appeals Tribunal (AAT) under section 500 of the Migration Act or decisions made personally by the Minister for Immigration and Multicultural and Indigenous Affairs under section 501, 501A, 501B or 501C of the Migration Act.  This second group of migration cases involve decisions not to grant or cancel a visa, or involve deportation of a person, on character grounds….

Consistent with the key reform of directing migration cases to the FMC, the Bill also channels nearly all migration cases remitted from the High Court directly to the FMC.  Migration cases will only be remitted to the Federal Court where they involve judicial review of character-related decisions made by the AAT or the Minister personally.

(ii)        ensuring identical grounds of review in migration cases

…

(iii)        imposing uniform time limits in all migration cases

The Bill includes amendments to impose uniform time limits for applications for judicial review of migration decisions in the FMC, the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court.

Applications must be made within 28 days of an applicant having received actual notice of the decision he or she seeks to review.  The Court may extend the 28 day time limit by a further period of up to 56 days provided the person seeking to file the application makes the request for an extension of time within 84 days of actual notification of the tribunal decision (or decision of the Minister or delegate) and the Court is satisfied that it is in the interests of the administration of justice to extend the time limit.

41                  Having considered the words of s 476A(1)(a), its context and the policy behind Division 2, I have concluded that the section applies only to proceedings pending in the FMC in relation to a migration decision which that Court has jurisdiction to review.  The crucial words in the subsection that lead me to this conclusion are ‘in relation to the [migration] decision’.  A proceeding pending in the FMC cannot be in relation to a migration decision where that Court has no jurisdiction to review the decision.  This conclusion is not inconsistent with the FMC having jurisdiction to transfer the present proceeding.  In the FMC the filing of Mr Fisher's application gave rise to ‘a proceeding pending’ in the FMC but not one that was pending in relation to a migration decision.  It was pending in relation to a jurisdictional question, namely whether the Court had jurisdiction to review the tribunal's decision. 

42                  If the transfer to this Court of a proceeding in which the FMC had no jurisdiction were able to give this Court original jurisdiction in relation to the relevant migration decision, difficulties would arise in relation to the question of time limits.  On the view I have taken (see [35] above) the FMC would not have jurisdiction to consider an application for an extension of time, however, neither would this Court.  The entitlement of this Court to extend the 28 day period for making an application under s 477A(2) only applies to applications made to this Court; s 477A(1).  It would follow that there is no provision for any extension of time in respect of the present application.  Consequently, as a result of his mistake in making his application to the wrong court, the applicant would be deprived of the right to seek an extension of time.  

43                  While the intent to apply strict time limits to applications for judicial review is very clear in the Act, there is nothing to indicate that the legislature intended the consequences of filing an application in the wrong court to be so draconian.  On the contrary, the provisions of ss 477, 477A and 486A indicate that Parliament intended applications for judicial review of migration decisions to be subject to the same time limits and the same restrictions on extensions of time whether brought in the FMC, the Federal Court or the High Court.  The recent High Court decision in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14, that s 486A is invalid as an impermissible restriction on the right of applicants to seek relief under s 75(v) of the Constitution, does not cast doubt on the Parliamentary intention which is made plain in the Reform Bill EM.  Nor does it impugn the validity of the time limits imposed on applications to the FMC or to this Court.

44                  I conclude therefore that while the Federal Magistrate was entitled to transfer the proceeding to this Court pursuant to s 39 of the Federal Magistrates Act, that transfer did not give this Court original jurisdiction under s 476A(1)(a) in relation to the decision of the Tribunal.  Once the proceeding was transferred however, pursuant to O 82 r 3 of the Federal Court Rules, the proceeding was to be treated as if it had been instituted in this Court with the consequence that the application filed in the FMC is to be treated as an application made to this Court.  As a result, the application falls within s 476A(1)(b) and the time limit imposed by s 477A for applications under s 476A(1)(b) applies.  That being so, the applicant still requires an extension of time if his application is to be valid and there is no question of this Court making any order that subverts the time limits in s 477A.

45                  As explained in [34] above, the application for review was required to be filed no later than 21 September 2006.  Since that time limit was not met, Mr Fisher required an extension of time under s 477A(2) which had to be filed by 16 November 2006.  As the application to the FMC was made on 11 October it was within that time limit. Even though the period of 84 days within which an application for an extension of time must be made has now expired, it is my view that I am still able to consider the application for an extension because it was made within that period.  Counsel for the respondent, Mr Lloyd accepted that construction which is the construction preferred by his client as opposed to an alternative construction which he put to the Court for the sake of completeness.  I do not propose to examine that alternative construction.

46                  Before granting any extension however, it is necessary that I be satisfied that an extension is in the interests of the administration of justice; s 477A(2)(b).

47                   On 18 December 2006 I gave the applicant leave to file an amended application and any application for an extension of time on or before 9 February 2007.  The purpose of that order was merely to clarify the issues in this proceeding and not to make any substantive order affecting the rights of the parties.  In any event, neither in the original application nor in the amended application has the applicant given any explanation as to why the original documents were not filed within the 28 day period.  The application for an extension refers to the affidavit of the applicant’s mother, Emalyne Elizabeth Fisher.  Mrs Fisher does not address the issue.  Her affidavit is addressed to the confusion surrounding the documents that were faxed to the registry on 11 October and subsequently lost.  There is nothing in that affidavit or the attachments to it to explain why no application was made by 21 September.  In the absence of any explanation it is difficult for me to be satisfied that an extension is warranted.

48                  There is another, quite independent, reason for denying an extension of time in this case.  Having reviewed the claims that the applicant would make in support of his application were an extension of time to be granted, I am not satisfied that there is any reasonable prospect of the application succeeding.  I shall briefly explain my reasons for concluding that the Tribunal’s decision was not vitiated by jurisdictional error.

The Tribunal’s decision

49                  The process of cancellation began with a ‘Notice of Intention to Consider Cancelling a Visa under Subsection 501(2) of the Migration Act 1958’ dated 1 March 2006, which was sent to the applicant at the correctional centre where he was held at that time.  The notice stated that the applicant was a holder of a Permanent Visa Class BF subclass 154 which, at that time, was his only authority to remain in Australia.  By letter dated 5 June 2006 and marked as ‘Given by hand’ the delegate informed the applicant that this visa was cancelled and that ‘Any other visa that you may hold … is now taken to be cancelled’.  The Tribunal affirmed the delegate’s decision on 18 August 2006.

50                  It is not in contention that the visa(s) that the applicant held in March 2006 had been granted on 15 October 2001.  What is in issue between the applicant and the respondent is the nature of the visa(s) that were granted.  The applicant says he was granted two visas at that time, a subclass 812 permanent visa and a subclass 154 visa.  He contends that the latter visa, which the delegate purported to cancel in 2006, actually expired on 14 October 2004 and, consequently the cancellation could have no effect.  It follows, the applicant submits, that s 501F(3), on which the respondent relies as having effected the cancellation of the subclass 812 permanent visa, could not have been enlivened.  Section 501F(3) provides that if a visa is cancelled on character grounds then, subject to exceptions that do not apply here, any other visa held by the relevant person is taken to have been cancelled also.

51                  The respondent says the applicant was never granted a subclass 154 visa or a subclass 812 entry permit but was granted ‘transitional (permanent) visas by reference to the criteria that had applied to those classes of visa or entry permit’ before the changes made in September 1994 to the visa and entry permit system set up under the migration legislation.  The respondent submits that the applicant’s analysis is premised on a particular interpretation of the legislative regime that applied prior to the 1994 changes.  The respondent rejects that interpretation but also submits that it is not material to the present proceeding because it is not the regime pursuant to which the applicant’s visas were granted.

52                  The application that led to the grant of visas to the applicant in October 2001 had been made in December 1993 when he was included as a dependant on his father’s application for a class 812 entry permit, also known as a Group 1.2 permanent resident (after entry) entry permit.  I have been given no explanation for this long delay but it does not appear to have any relevance to the present proceeding.  What is relevant is that at the time, Item 154.411(3) of the Migration (1993) Regulations (Cth) provided that an application for a Group 1.2 (permanent resident (after entry)) entry permit also had effect as an application for a Class 154 visa, also known as a Resident Return (A) Visa (After Entry).  As it happened the outcome of the application was determined by changes made to the visa and entry permit system set up under the migration legislation in September 1994.

53                  In his written submissions Mr Lloyd accurately and succinctly summarises the relevant changes and I gratefully adopt his account:

The Migration Reform (Transitional Provisions) Regulations made provision for converting existing authorities and applications to the new scheme.  Relevantly, in relation to the applicant’s application for the Class 812 permanent entry permit, it was taken to be an application for a transitional (permanent) visa by operation of reg 23(2)(b).  The application was to be decided according to the criteria applicable to the relevant entry permit (reg 23(3)).  When granted, the visa holder was entitled to travel to and enter Australia for a period of five years from the grant and to remain in Australia indefinitely (reg 23 (6)).

In relation to the applicant’s application for the Class 154 visa, the same criteria continued to apply (reg 22(1)) and, if granted, it was to be a transitional visa permitting the holder to travel to and enter Australia during the period commencing on the date of grant and ending the period 5 years from the date of grant of the permanent entry visa or transitional (permanent visa) granted on the basis of the satisfaction by the applicant of the criteria that applied to the original permanent entry permit applied for and to remain in Australia indefinitely.  That it, it was also a permanent visa.

54                  Following these changes, the visas granted to the applicant were two transitional (permanent) visas.  Mr Lloyd drew my attention to reg 1.06 of the Migration Regulations 1994 which provides that transitional (permanent) visas may be referred to as BF visas. It was the applicant’s permanent visa class BF subclass 154 to which, in March 2006, the Notice of Intention to Consider Cancelling a Visa referred. 

55                  On the basis of the above analysis I accept that the visas held by the applicant in 2006 when his visas were cancelled were permanent visas.  That being so I can find no basis for the applicant’s claim that the delegate purported to cancel an expired visa.  No other basis for the claim that the Tribunal made a jurisdictional error is put forward, and therefore I am satisfied that the applicant’s claim could not succeed.

56                  I am therefore not satisfied that it would be in the interests of the administration of justice to extend the 28 day period within which an application must be made under s 477A.  The present application must be dismissed.  In the normal course the applicant would be ordered to pay the respondent’s costs.  In this case however, despite his application being dismissed the applicant has succeeded on the jurisdictional issue and it is appropriate therefore that the respondent should not have the costs in relation to this issue.  In the circumstances I propose to order that each party bear its own costs.

Associate:

Dated:         30 April 2007