FEDERAL COURT OF AUSTRALIA

Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    There be no order as to costs.

3.    These orders are not to be entered until a period of 14 days has expired from the date on which these orders were made.

THE COURT DIRECTS THAT:

4.    A copy of the reasons for judgment given on 4 November 2015 be provided to the Registry of the Federal Circuit Court of Australia.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1.    introduction

1    The applicant is currently in immigration detention on Christmas Island.

2    On 15 October 2015, the applicant lodged an originating application in this Court for review of a decision by the Assistant Minister under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) to refuse to revoke a decision by the Minister’s delegate under s 501(3A) to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa. Section 501(3A) provides for mandatory cancellation in certain circumstances, said to be applicable to the applicant. Section 19 of the Acts Interpretation Act 1901 (Cth) provides that:

Where in an Act any Minister is referred to, such reference is deemed to include any Minister or member of the Executive Council for the time being acting for or on behalf of such Minister.

As the Minister submits, this provision together with s 19A, would seem, subject to any proof to the contrary, apt to pick up the Assistant Minister, such that the Assistant Minister is treated as the Minister for the purposes of administering the Act.

3    It is not in dispute that the applicant initially sought to lodge his application for review in the Federal Circuit Court of Australia within the time period specified in s 477 of the Act before being incorrectly advised by the Registry to file his application in the Federal Court of Australia. It is also not in dispute that the Federal Circuit Court retained a copy of the application for review, notwithstanding that the Registry did not then accept it for filing.

4    The question raised by the Minister is whether these proceedings should be summarily dismissed on the ground that the Federal Court lacks jurisdiction to entertain the application for review. For the reasons set out below, I am persuaded that the application should be dismissed with no order as to costs. I note as to the latter that the Minister has very fairly not sought his costs in all of the circumstances.

2.    Background

5    On 21 October 2015, the legal representatives for the Minister wrote to the applicant advising that “[w]e consider that the Federal Court of Australia does not have jurisdiction (power) to hear your application”. In the letter, the Minister explained that:

Section 476A of the Migration Act relates to the jurisdiction of the Federal Court. That is, the Federal Court’s power to hear certain applications. It says relevantly that:

(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 Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia 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.

I have added the bold emphasis above. The subparagraph I have emphasised does not include a decision made personally by the Minister under section 501CA. Section 501C, which is listed, is not applicable to your case because it is about the revocation of a decision under section 501(3) or 501A(3).

The Court that does have the power to hear your application is the Federal Circuit Court. The relevant section of the Migration Act is section 476(1).

6    The letter invited the applicant to discontinue his Federal Court application and to consider commencing new proceedings in the Federal Circuit Court. Furthermore, the letter advised that if the applicant did commence new proceedings in the Federal Circuit Court, the Minister would consider applying for the proceedings to be transferred to the Federal Court because he considers that this Court is the appropriate one to hear the application. It was said that it was only because of a legislative drafting oversight that the Federal Circuit Court is currently the Court with jurisdiction to hear the application. Finally, the letter advised that, if the Federal Circuit Court agreed with the Minister’s application for a transfer to this Court, the Federal Court would then have power to hear his application under s 476A(1)(a) of the Act.

7    The applicant, who is unrepresented, did not discontinue the proceedings following receipt of this correspondence.

8    Before the directions hearing on 28 October 2015, the Registry wrote to the parties requesting that the Minister make submissions by reference to the relevant provisions of the Act which bear out the assumption in the correspondence from the Minister that new proceedings could be commenced by the applicant in the Federal Circuit Court, despite the passage of time. The email from the Registry also advised that I would be assisted if the parties could consider the question of whether the Federal Court may have power to transfer the proceedings to the Federal Circuit Court even if this Court lacks jurisdiction to hear and determine the substance of the application.

9    The matter was initially called on for directions on 28 October 2015 at 9.30am in Sydney, it not having been appreciated that the time of listing was only 5.30am in Christmas Island. Not surprisingly, the attempts to establish a video link to Christmas Island in order to enable the applicant to attend the directions hearing on that day were unsuccessful and the matter was relisted for 2.00pm on 4 November 2015, being 10.00am in Christmas Island.

10    In the interim, the Minister wrote on the following day to the applicant advising of the change in arrangements for the directions hearing. The letter also stated that the Registry of the Federal Circuit Court has advised that it still has the application which the applicant initially sought to file and that:

…in the past they have ‘back dated’ applications in circumstances similar to yours, so that the application would be dated as filed on the date that you tried to lodge it with the FCCA. I asked the FCCA whether they would do this in your case. They told me that they would wait and see what happened at the directions hearing before the Federal Court (FCA), and that perhaps the FCA would make directions relevant to this.

11    The letter further advised that:

(1)    the Minister’s position was that this Court had power to transfer the proceedings to the Federal Circuit Court, referring to relevant authorities, and that, if the Federal Court did so, there would be no need for an extension of time; and

(2)    the Minister would neither consent nor oppose any transfer to the Federal Circuit Court so as to avoid any possibility of inconsistency in his position that the matter would ultimately be dealt with appropriately in the Federal Court by way of a transfer from the Federal Circuit Court.

3.    CONSIDERATION

12    As the Minister’s letter on 21 October 2015 acknowledged, the procedure suggested by the Minister whereby these proceedings are discontinued and instituted instead in the Federal Circuit Court only for the Minister to apply to transfer them “back” to this Court, must seem an unusual way for the applicant’s application to proceed. However, I agree for the reasons given by the Minister, that this Court lacks jurisdiction to entertain the application for review but that the Federal Circuit Court does have that jurisdiction. In essence, the Federal Court has original jurisdiction in relation to a migration decision under s 476A(1) in four limited and defined circumstances, none of which currently apply to this case. The Federal Circuit Court’s jurisdiction is not, however, limited by the same constraints. Under s 476(1) of the Act, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court under s 75(v) of the Constitution, save for certain excluded decisions not relevant here.

13    I note that, while the issue does not presently arise, the Federal Court has original jurisdiction in relation to a migration decision made by the Minister if proceedings are instituted in the Federal Circuit Court and that Court transfers those proceedings to this Court under s 39 of the Federal Circuit Court of Australia Act 1999 (Cth), as the Minister stated in his correspondence: see s 476A(1)(a) of the Act.

14    I have considered whether it would be appropriate to transfer these proceedings to the Federal Circuit Court as a means of best protecting the applicant’s rights, given that any fresh application in that Court would, subject to the matters I further explain, now be out of time and require an extension of time. I am persuaded by the Minister’s submissions that this Court does have power to transfer the proceedings to the Federal Circuit Court notwithstanding its own lack of jurisdiction with respect to the originating application: see Asaad v Minister for Immigration and Citizenship [2008] FCA 1039 at [21] (Tamberlin J); Rashidzadeh v Minister for Immigration and Citizenship [2008] FCA 1168 at [2] (Emmett J). However, it would seem a curious result to say that this Court lacks jurisdiction which it could acquire because the Federal Circuit Court has retransferred the proceedings back into this Court. This doubt persuades me that this is not an appropriate course to adopt, given the Minister’s intimations that the Federal Court is the most appropriate Court in which the proceedings should ultimately be dealt with.

15    However, as I said earlier, it is accepted that the Federal Circuit Court still retains the originating application which the applicant, quite correctly, initially sought to file in that Court. It is also accepted that the Federal Circuit Court has intimated that it may accept the originating application for filing with effect on the date that it was presented for filing, as it has done in the past. That course appears to be an eminently sensible way to resolve the issues that have arisen in this case through no fault of the applicant and it is hoped that ultimately this course prevails.

16    In any event, the Minister has indicated that if that course was not adopted, he would consent to an extension of time within which to file the originating application in the Federal Circuit Court. While that consent does not bind the Court to grant an extension of time, nonetheless, it would be a telling consideration in all of the circumstances in favour of the grant of an extension of time. Indeed without pre-empting the exercise of jurisdiction by another judge of another court, I consider it highly likely in all the circumstances that, with the Minister’s consent, an extension of time would be granted should the need arise.

17    Finally, the Minister suggested the additional protective course for the applicant’s rights that judgment orders not be entered for a period of 14 days in case something unexpected should arise in relation to the institution of proceedings in the Federal Circuit Court. That leaves open the possibility, if need be, that this matter may come back before me for reconsideration.

18    In all of the circumstances I consider that the appropriate course is for the originating application to be dismissed with no order as to costs and a direction that the orders not be entered for a period of 14 days.

Associate:

Dated:    5 November 2015