FEDERAL COURT OF AUSTRALIA

Montero v Minister for Immigration and Border Protection [2014] FCA 1096

THE COURT CONSIDERING, FOR THE PURPOSES OF S 25 (1AA)(b) OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 (CTH) THAT THE JURISDICTION OF THE COURT IN RELATION TO THE APPEAL SHOULD BE EXERCISED BY A FULL COURT, ORDERS THAT:

1.    The appeal be adjourned for hearing by a Full Court on a date to be fixed by the Court and notified to the parties by a registrar.

2.    The application for leave to file and reply upon a notice of contention be heard before the Full Court.

3.    Costs reserved.

4.    Liberty to apply.

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

REASONS FOR JUDGMENT

1    This appeal against a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) was listed for hearing by a single judge. The principal issue in respect of the appeal concerns the construction of a requirement found in clause 3004(e)(ii) of the Migration Regulations 1994 (Cth) (Migration Regulations). In particular, there is controversy about the meaning of the words:

...the applicant has complied substantially with ... the conditions that apply or applied to – [particular nominated visa]

The appellant’s submission was that the construction adopted in the court below, in substance, introduced the words “each of” after “substantially complied with”.

2    The Minister for Immigration and Border Protection (Minister), in responding to the appeal, pointed to a line of authority both in the Federal Circuit Court and this Court in its original jurisdiction which commenced with Peng v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 63 (Peng). In that case, Hely J considered very similar phraseology in the then clause 560.213 of the Migration Regulations. After Peng the authorities in this Court’s original jurisdiction are Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261, a judgment of Ryan J and a judgment given by a Full Court of this Court in the exercise of original jurisdiction, Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199 (Jayasekara). For the appellant’s arguments to succeed in respect of the principal ground, I would have to be persuaded not merely that two judgments given in the original jurisdiction by single judges were incorrect to the extent where they should not be followed but also, arguably at least, that I was not bound, at least by implication, by the joint judgment of Heerey and Sundberg JJ in Jayasekara, to dismiss the appeal.

3    The controversial phrase is also found in corporations legislation. It was notably considered by Young J in Re U Drive Pty Ltd (1987) 5 ACLC 117 at 119 (Re U Drive), and to like effect by Hill J in this Court in Re News Corporation Ltd (1993) 11 ACLC 733 (Re News Corporation). The view reached by Young J in Re U Drive, and by Hill J in Re News Corporation is supportive of the submission as to construction made by the appellant. Neither of these cases has ever been considered by this Court in relation to the phrase as it appears in the Migration Regulations.

4    Context, of course, is everything, but the submissions made on behalf of the appellant today persuade me that the point is one which is genuinely arguable. Indeed, that there is an alternative construction open was conceded on behalf of the Minister. The Minister’s point though was that there is a line of authority and, further, it may very well be, and the Minister submitted that it was, a situation where I was bound to follow a Full Court judgment.

5    There are then on analysis a number of factors which support the application which has been made on behalf of the appellant for an order pursuant to s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth) that the appellate jurisdiction in relation to this particular appeal be exercised by a Full Court. Those factors seem to me to be these. The appellant has an arguable case to support the construction for which he contends. To succeed in respect of that argument it would be necessary not merely to persuade me to depart from the line of authority of single judges in this Court, commencing with Peng, but including a number of Federal Circuit Court judgments thereafter, but also to persuade me that the Full Court’s judgment in Jayasekara did not, in any event, dictate the outcome. Further, there is a line of authority which in corporations law would suggest a different outcome. As I have mentioned, that line of authority has not been considered in the migration cases to which I have referred.

6    Taking these particular factors into account, and for the purposes of s 25(1AA)(b), I do consider that the case is one which should be heard by a Full Court. The application is of course one which has only been made on the day of hearing. It could have been made before the listing. Nonetheless, to appreciate the point which was made on behalf of the appellant would have required the length of examination which has occurred this morning, and an examination by a single judge of the Court. In that sense, the issue is truly one of timing rather than one of a complete waste of court time today.

7    There was a canvassing on behalf of the appellant before today’s listing of the possibility of the case being heard by a Full Court, but that canvassing did not, as it should have at an early stage, embrace those acting for the Minister. Hindsight can be a great teacher, and it may be that, in hindsight, the listing having occurred before a single judge, there could have been a fresh approach on behalf of the appellant to the Minister, suggesting a cooperative approach to the Court by way of application for an order under s 25(1AA). However, as I have said, it would still have required a persuasion of the Court that the case was one for a Full Court.

8    The Minister does not in terms oppose the disposition of a case by the Full Court, recognising very fairly that there are aspects of the Minister’s argument which, if accepted, would dictate a particular outcome adverse to the appellant by a single judge. That too is a factor which I take into account.

9    There is also present in the case, a notice of contention which has been filed out of time by the Minister. There was no particular prejudice to which the appellant pointed in terms of an ability to meet the point raised by the notice of contention. That point, if decided for the Minister, would dictate the outcome, in any event, of the appeal, but it is not a point which ought to be decided separately. The late giving of the notice may well resonate, depending on its disposition, in a denial of costs to the Minister. I consider that the appropriate course is not to rule upon whether the notice may be raised, but rather to leave that to a Full Court.

Associate:

Dated:    9 October 2014