FEDERAL COURT OF AUSTRALIA

Mehmood v Attorney-General of the Commonwealth [2013] FCA 406

THE COURT ORDERS THAT:

1.    The Interlocutory Application filed by the applicant on 26 April 2013 be dismissed.

2.    The Application for Extension of Time and Leave to Appeal filed by the applicant on 26 April 2013 be dismissed.

3.    The applicant pay the respondents’ costs of and incidental to those Applications.

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

REASONS FOR JUDGMENT

1    On 26 April 2013, the applicant applied for an extension of time within which to seek leave to appeal from a judgment of a judge of this Court given on 4 April 2013 (Mehmood v Attorney-General of the Commonwealth [2013] FCA 287) and, if successful with his extension of time application, for leave to appeal from that judgment. The judgment of the primary judge is interlocutory. For that reason, the applicant must obtain leave to appeal before any appeal can be instituted.

2    At the same time, the applicant filed an Interlocutory Application by which he sought an injunction restraining his removal from Australia and other relief.

3    Rule 35.13 of the Federal Court Rules 2011 (Federal Court Rules) provides that an application for leave to appeal from an order of a judge of this Court to the Full Court must be filed within 14 days from the date on which judgment was pronounced or the order was made. Therefore, the applicant was obliged to make his application for leave to appeal by no later than 18 April 2013. The applicant was eight days late. In the ordinary course, an application for an extension of time within which to seek leave to appeal would fall to be considered against the requirements of r 35.14 of the Federal Court Rules. That rule provides as follows:

35.14     Extension of time to seek leave to appeal

(1)     A person who wants to apply for an extension of time to seek leave to appeal must file an application, in accordance with Form 118.

(2)     The application may be made during or after the period mentioned in rule 35.13.

(3)     The application must be accompanied by the following:

(a)    the judgment or order from which leave to appeal is sought;

(b)    the reasons for the judgment or order, if published;

(c)     an affidavit stating:

(i)     briefly but specifically, the facts on which the application relies; and

(ii)     why the application for leave to appeal was not filed within time; and

(d)     a draft notice of appeal that complies with rules 36.01 (1) and (2);

(e)     a statement by the applicant of whether the applicant wants to have the application considered without oral argument.

Note 1    The Court may grant an extension of time, and hear and determine the application for leave to appeal, at the same time.

Note 2    An application under rule 35.12 or 35.14 will be heard and determined by a single Judge unless the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it appropriate to hear and determine the application.

Note 3     File is defined in the Dictionary as meaning file and serve.

4    The terms of that rule are substantially the same as the terms of r 36.05 of the Federal Court Rules, which prescribes the matters which must be addressed when a litigant seeks an extension of time within which to file a Notice of Appeal.

5    In DZAAD v Department of Immigration and Citizenship [2013] FCA 204, I summarised the principles to be applied when the Court is considering an application for an extension of time under r 36.05. At [28]–[30] I said:

The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348–349 (per Wilcox J); Jess v Scott (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O’Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]–[27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]–[25] (per Cowdroy J)).

The Minister has, quite properly, accepted that, given the short delay involved in the present case and the difficulties confronting the applicant as an unrepresented litigant in circumstances where he had family separation issues with which to deal as well as a move to Canberra, the applicant has more than adequately explained any delay in instituting his appeal. The Minister, nonetheless, opposes the grant of an extension of time on the basis that the appeal which the applicant seeks to file has no prospect of success. The Minister submitted that an extension of time, even for a short period, may be refused if an appeal has no prospect of success (as to which, see Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at 216 [14] per Jessup J with whom Gyles and Besanko JJ agreed).

It would be a proper exercise of the Court’s discretion to refuse the extension of time which has been sought if the appeal has no prospect of success, even if the delay is a short one.

6    The same principles should be applied when considering an application for an extension of time under r 35.14 of the Federal Court Rules.

7    In the present case, the primary judge held that this Court has no jurisdiction to entertain or determine the claims for relief made by the applicant in the proceedings below. If that conclusion is correct, it would follow that the Full Court has no jurisdiction to hear any appeal from his Honour’s decision nor any jurisdiction to hear applications ancillary to such an appeal.

8    Both the jurisdictional question and the extension of time application require the Court to look at the nature of the applicant’s substantive claims. If the Court has jurisdiction, other factors will need to be considered in relation to the applicant’s application for an extension of time and his application for leave to appeal.

9    Before the primary judge, the applicant sought to challenge a decision by the Attorney-General of the Commonwealth to cancel a Commonwealth criminal justice stay certificate which had been granted to the applicant in circumstances which I shall shortly explain. The second respondent, the Commonwealth Director of Public Prosecutions (CDPP), took certain steps that led to the Attorney-General’s decision to cancel the applicant’s criminal justice stay certificate. The third respondent (the Minister) acted upon that cancellation and cancelled the criminal justice stay visa held by the applicant based upon the criminal justice stay certificate which had been issued in respect of him.

10    Under the relevant provisions of the Migration Act 1958 (Cth) (the Migration Act), the cancellation of a Commonwealth criminal justice stay certificate automatically leads to the cancellation of any criminal justice visa issued by the Minister upon the basis of that certificate (see s 164).

11    The primary judge held that this Court had no jurisdiction in the matter and that the only court which might have jurisdiction to assist the applicant is the Federal Circuit Court of Australia.

Relevant Facts

12    The applicant arrived in Australia on 3 January 2009 travelling on a tourist visa. On 6 January 2009, he was arrested and charged with offences under s 233(1)(b) and s 233BAB(5) of the Customs Act 1901 (Cth) (the Customs Act).

13    On 3 April 2009, the CDPP requested the Attorney-General to grant to the applicant a Commonwealth criminal justice stay certificate pursuant to s 147 of the Migration Act so that the applicant’s removal from Australia would be stayed pending his being prosecuted in relation to those offences. This was the only purpose for which that certificate was granted.

14    On 8 April 2009, a delegate of the Attorney-General issued a criminal justice stay certificate pursuant to the request made to the Attorney-General by the CDPP.

15    On 9 April 2009, a delegate of the Minister granted to the applicant a criminal justice stay visa pursuant to s 157 of the Migration Act. The grant of such a visa enabled the applicant to remain in Australia lawfully but temporarily, for the sole purpose of being prosecuted for the offences to which I have referred.

16    On 30 March 2010, in his absence, the applicant was convicted and fined under the Customs Act in the New South Wales Local Court at Sydney. A conviction warrant was then issued for his arrest by the New South Wales police and the applicant was subsequently arrested on 18 October 2012. The applicant was re-sentenced on 11 December 2012. The applicant subsequently lodged an appeal against conviction in the District Court of New South Wales. That appeal was dismissed on 18 March 2013.

17    By letter dated 22 February 2013, the CDPP requested the Attorney-General to cancel the applicant’s criminal justice stay certificate pursuant to s 162 of the Migration Act, because the prosecution of the applicant had concluded and the applicant’s presence in Australia was no longer required. The delegate of the Attorney-General notified the Secretary of the Department of Immigration and Citizenship of the intention of the Attorney to cancel the applicant’s criminal justice stay certificate in purported compliance with s 162 of the Migration Act.

18    On 26 February 2013, a delegate of the Attorney-General cancelled the applicant’s criminal justice stay certificate pursuant to s 162 of the Migration Act. By operation of s 164 of the Migration Act, that cancellation led to the automatic cancellation of the applicant’s criminal justice stay visa. The applicant’s criminal justice stay visa was recorded as cancelled by the Department of Immigration and Citizenship on 26 February 2013.

19    On 8 March 2013, the applicant was granted a Bridging Visa D. That Bridging Visa remained in effect until 24 March 2013. As a result of the expiry of that visa, the applicant became an unlawful non-citizen within the meaning of that expression in the Migration Act.

20    Subsequently, the Minister undertook to the applicant not to remove him from Australia up to and including 18 April 2013, in order to enable the primary judge to deal with the various applications made by the applicant before the primary judge.

The Proceedings Below

21    In the proceedings below, the respondents filed an Objection to Competency by which they challenged the jurisdiction of this Court to hear the applicant’s Originating Application. The primary judge took the view that it was appropriate to deal with the respondents’ Objection to Competency before proceeding to deal with the Application itself. At the same time, his Honour dealt with an Interlocutory Application made by the applicant to restrain his removal from Australia.

22    At [12]–[18], his Honour dealt with the question of this Court’s jurisdiction. At those paragraphs, his Honour said:

12    Central to the resolution of the objection to competency is the identification of the statutory provisions pursuant to which each decision was said to have been taken and the identification of the jurisdiction entrusted to this Court.

13    The decision to cancel Mr Mehmood’s Criminal Justice Certificate in February 2013 was taken pursuant to s 162 of the Migration Act. That section in its entirety provides as follows:

Criminal justice certificates to be cancelled

(1)    If the presence in Australia of a non-citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given, then:

(a)    if it was given under section 145 or 147, the Attorney-General; or

(b)    if it was given under section 146 or 148—an authorised official;

is to cancel it.

(2)    Before cancelling the certificate, the Attorney-General or authorised official is, an adequate time before doing so, to tell the Secretary:

(a)    when it is to be cancelled; and

(b)    the expected whereabouts of the non-citizen when it is cancelled; and

(c)    the arrangements for the non-citizen's departure from Australia.

In the present proceeding, the Criminal Justice Certificate was granted pursuant to s 147.

14    Contrary to the initial understanding as at 13 March 2013 when this proceeding was first before the Court as a duty matter, there would appear to be no necessity for any separate “decision” to be taken to cancel any Criminal Justice Visa once a certificate is cancelled: s 164. That section in its entirety provides as follows:

Effect of cancellation etc. on criminal justice visa

If:

(a)    a criminal justice certificate is cancelled; or

(b)    a criminal justice stay warrant is cancelled or expires;

any criminal justice visa granted because of the certificate or warrant is cancelled and the Minister is to make a record of the cancellation.

The section operates according to its terms once a certificate is cancelled.

15    The jurisdiction entrusted to this Court is relevantly to be found in s 476A(1) and (2) which provide as follows:

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(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.

(2)    Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

Section 476A(1), it will be noticed, provides that this Court relevantly has jurisdiction “only if” its original jurisdiction is invoked in respect to one or other of the classes of decisions set forth in s 476A(1)(a) to (d).

16    Section 476 confers jurisdiction on the Federal Magistrates Court. Section 476(1) is expressed in very much different terms to s 476A(1) and provides as follows:

Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

The Federal Magistrates Court has concluded that there “appears to be no doubt that a challenge to the validity of a decision under s.162 comes within [the Federal Magistrates Court’s] jurisdiction under s.476 of the Migration Act”: Zhang v Minister for Immigration and Citizenship [2009] FMCA 196 at [21]. The solicitor appearing for the Respondents thus accepted that the Federal Magistrates Court would have jurisdiction to review the decision taken pursuant to s 162(1)(a).

17    For the purposes of s 162(2) the Secretary was told of the matters there specified on the same day as the certificate was cancelled. No prior notice of the intention to cancel the certificate was given to Mr Mehmood. But such matters, it was submitted, were not matters that should attract the concern of this Court as this Court had no relevant jurisdiction. Moreover, it was further submitted, the rules of procedural fairness had no application to a decision taken pursuant to s 162(1): Minister for Immigration and Citizenship v Zhang [2009] FCAFC 129 at [96]; 179 FCR 135 at 146. If this Court had no jurisdiction to review the decision taken pursuant to s 162(1)(a), it was also implicitly submitted that the Court had no jurisdiction to award any consequential “loss or damages” said to flow from that decision.

18    The submission as to the absence of this Court’s jurisdiction to entertain the Originating Application and Statement of Claim as filed on 7 March 2013 is accepted. The decision to cancel the Criminal Justice Certificate does not fall within any of the categories specified in s 476A(1). The submission advanced by Mr Mehmood that the decision taken on 26 February 2013 was not a “migration decision” but an “administrative decision” does not alter this conclusion.

Consideration

23    The scheme reflected in the legislative provisions dealing with the issue of criminal justice stay certificates and criminal justice visas was explained by the Full Court in Minister for Immigration and Citizenship v Zhang (2009) 179 FCR 135 at [13]–[53]. It is not necessary to traverse in any detail the observations made by the Full Court in Zhang. For present purposes, all that need be noted is that Subdiv D of Div 4 of Pt 2 of the Migration Act is intended to provide a statutory foundation for allowing unlawful non-citizens to remain in Australia temporarily for the purpose of assisting the Australian criminal justice system, and only for that purpose.

24    For present purposes, the critical matter arises from the proper interpretation of ss 162, 164, 474, 476 and 476A of the Migration Act. The primary judge correctly interpreted those provisions at [12]–[18] of his Reasons.

25    Section 162 of the Migration Act provides that, if the presence in Australia of a non-citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given, then the Commonwealth officer who issued the certificate is obliged to cancel it (s 162(1)). Under s 164, by operation of the provision itself and without the necessity for any further decision by any person, if a criminal justice certificate is cancelled, any criminal justice visa granted because of the certificate is automatically cancelled and the Minister is to make a record of the cancellation.

26    The decision made by the Attorney-General in the present case to cancel the applicant’s criminal justice stay certificate was a privative clause decision within the meaning of that expression in s 474(2) of the Migration Act (as to which, see s 474(1), (2) and (3)(b) and (h)) and was not excluded from that definition by any of the exceptions in s 474(4), (5) and (6). As a result, the decision was also a migration decision (see s 5).

27    As the primary judge found, the Federal Circuit Court of Australia has the same original jurisdiction in relation to migration decisions as the High Court has under par 75(v) of the Constitution (s 476). But this Court’s original jurisdiction in relation to such decisions is limited by the terms of s 476A of the Migration Act. The decision presently under challenge does not fall within the limited classes of decision in relation to which this Court has original jurisdiction pursuant to s 476A.

28    For all of the above reasons, in my judgment, it is quite clear that this Court had no jurisdiction to entertain the substantive application which the applicant made before the primary judge. It follows that the Court has no jurisdiction to entertain further applications in respect of the matter with which his Honour dealt. Even if the Court had jurisdiction to do so, there would be no point granting an extension of time to the applicant as the Court has no power to deal with his substantive application.

29    I therefore propose to dismiss the application with costs. There will be orders accordingly.

Associate:

Dated:    3 May 2013