FEDERAL COURT OF AUSTRALIA

Poroa v Minister for Immigration and Border Protection [2015] FCA 1313

THE COURT ORDERS THAT:

1.    The objection to competency be upheld.

2.    The urgent application before start of a proceeding dated 9 November 2015 be dismissed as incompetent.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

1    Before the Court today is an objection to competency filed by the respondent Minister. For the reasons that follow the objection to competency must be upheld. It is convenient first to summarise the background to the proceeding.

2    On 25 September 2015, the applicant commenced a separate proceedings in the Court (NSD 1160 of 2015) in respect of the Minister’s refusal to expedite consideration and determination of the applicant’s application that the Minister revoke a decision to cancel his Class TY subclass 444 Special Category (Temporary) visa under s 501 of the Migration Act 1958 (Cth) (the Act).

3    The earlier proceeding was docketed to Katzmann J, who listed the matter for an expedited hearing today. On 30 October 2015, however, the Minister decided not to revoke the visa cancellation under s 501(CA) of the Act. On 6 November 2015, the proceeding in NSW 1160 of 2015 was discontinued.

4    On 9 November 2015, the applicant filed an urgent application before the start of a proceeding (NSD 1390 of 2015). That application included an undertaking given to the Court by the “prospective applicant” to start a proceeding in relation to the subject matter of the urgent application within 14 days after his application was determined. The application stated that the applicant was currently being held in detention on Christmas Island. The urgent application was accompanied by an affidavit sworn by the applicant’s solicitor on 9 November 2015. The urgent application was also accompanied by a proposed application for judicial review of the Minister’s decision not to revoke the visa cancellation decision. It contained two grounds of judicial review.

5    On 17 November 2015, the Minister filed a notice of objection to competency.

6    The following day, i.e. 18 November 2015, the applicant filed a proposed amended application for judicial review, in which he added a proposed third ground of review. On the same day, the applicant filed a written outline of submissions entitled “Submissions on expedition for the Applicant For Directions Hearing 24 November 2015”. Those submissions, which were signed by Counsel, stated that the applicant sought orders for the hearing of his judicial review application as soon as possible.

Notice of objection to competency

7    The applicant was represented by Dr Churches of Counsel. Given the Minister’s notice of objection to competency, I suggested that it was appropriate to hear and determine that application as soon as possible. Both parties consented to that course.

8    For the following reasons, the objection must be upheld.

9    First, it is evident that the applicant wishes to challenge on judicial review grounds the Minister’s decision under s 501CA(4) of the Act not to revoke the Minister’s earlier visa cancellation decision.

10    This Court’s original jurisdiction in relation to a migration decision is specified in s 476A of the Act. The Court has original jurisdiction in relation to such a decision, if, and only if, any of the subparagraphs in s 476A(1)(a) to (d) is satisfied.

11    Secondly, the Minister’s revocation decision is a “migration decision” as defined in s 5 of the Act (see also the definition of “a privative clause decision” in s 474 of the Act).

12    Thirdly, since none of the subparagraphs in s 476A(1)(a) to (d) applies, the Court lacks jurisdiction. There is no reference in those provisions to a decision of the Minister made under s 501CA of the Act.

13    This analysis is consistent with previous decisions of the Court (see Mehmood v Attorney-General of the Commonwealth [2013] FCA 287; (2013) 217 FCR 544 and Mehmood v Attorney-General of the Commonwealth [2013] FCA 406; (2013) 141 ALD 339, which, it might be noted, predated the commencement of the relevant provision on 11 December 2014 (see Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)) and, more recently, Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188 (Tusitala). See also the analysis of Manousaridis J in Fowell v Assistant Minister for Immigration [2015] FCCA 2328).

14    Tusitala is directly on point, as it deals with s 501CA(4) of the Act. I am not persuaded that this decision is plainly wrong. Indeed, I respectfully consider that it is plainly correct.

15    In Tusitala, Perry J noted at [6] a submission which was made on behalf of the Minister 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”. This is a reference to the fact that, although this Court lacks jurisdiction to hear and determine a decision under s 501CA(4) of the Act, the Federal Circuit Court has original jurisdiction in such a proceeding (as presumably would the High Court). Her Honour drew attention to the irony of the fact that if judicial review proceedings in respect of a decision refusing to revoke a cancellation visa decision were commenced in the Federal Circuit Court, they could be transferred by that Court to this Court. Indeed, in Tusitala, a submission was made on behalf of the Minister that this Court was the appropriate one to hear the applicant’s judicial review application there. Mr Markus, who appeared for the Minister, adopted a similar approach and indicated that if the applicant were to commence a proceeding in the Federal Circuit Court and apply for its transfer to the Federal Court, the Minister would not be opposed. I note that the time for the applicant to commence proceedings in the Federal Circuit Court has not expired. Given the underlying subject matter of the proceedings, which have a degree of urgency about them, it may be expected that the applicant and those who advise him will act with all deliberate speed to initiate the proceeding in the Federal Circuit Court.

16    The circumstances in which a Court should read words into a statute are quite limited (see, for example, Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [35]-[40] per French CJ, Crennan and Bell JJ). I am particularly conscious of the fact that the central issue here is one which goes to the Court’s jurisdiction and there is a need for particular caution in such a case. In my view the case for amending the relevant provisions affecting this Court’s jurisdiction is a matter for the Parliament.

17    The current position is unsatisfactory. Urgent consideration needs to be given to amending the Act so as to remedy the “legislative drafting oversight” which currently exists and which is creating considerable inconvenience and unnecessary distraction, not only for applicants but also the Minister, not to mention the Court itself. Mr Markus informed the Court that consideration is being given to introducing into the Parliament remedial legislation which may also have retrospective effect.

Conclusion

18    The notice of objection to competency must be upheld. The urgent application before start of a proceeding is incompetent and will be dismissed. Orders will be made accordingly.

Associate:

Dated:    24 November 2015