FEDERAL COURT OF AUSTRALIA

Potier v Hannigan [2015] FCA 1434

THE COURT ORDERS THAT:

1.    The interlocutory application be dismissed.

2.    The application for leave to appeal be dismissed.

3.    The applicant is to pay the second respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from transcript)

1    This is an application for an interlocutory injunction pending an application for leave to appeal from orders made this afternoon by Markovic J. Her Honour was also hearing an application for an injunction pending the determination of an application for review of a decision made by a Registrar of this Court to refuse to accept for filing two proposed originating processes which Mr Potier had sought to file. The originating processes arise out of Mr Potier’s recent release, if that be the word, from the custody of State authorities. He was in custody until 21 October 2015, when he was granted parole.

2    On 30 October 2015, he applied for a Bridging E (Class WE) visa, which he lodged at the Parramatta Regional Office of the Department. On 3 November 2015, a delegate of the Minister (‘the Delegate’) purported to refuse that application. At a time which is the subject of a dispute, Mr Potier filed an application for review of that decision with the Administrative Appeals Tribunal (‘the Tribunal’). That application was lodged, according to the Tribunal, on 9 November 2015. Pursuant to s 347(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) and reg 4.10(2)(a) of the Migration Regulations 1994 (Cth), the application was required to be filed with the Tribunal within two working days.

3    The Tribunal concluded on 17 November 2015 that, since the decision was dated 3 November 2015 and since the application for review was received only on 9 November 2015, it had no jurisdiction and, therefore, it refused the application on jurisdictional grounds. The argument which Mr Potier seeks to ventilate, by whatever procedural mechanism is available, is twofold: first, for reasons which I do not need to set out, he submits that the primary decision of the delegate of 3 November 2015 is a nullity; secondly, he submits that the Tribunal’s conclusion that it lacked jurisdiction because the application had not been lodged within the prescribed period of two days was itself incorrect.

4    In relation to the second matter, Mr Potier told me that he proposed to call evidence from officials at the Villawood Detention Centre, which evidence, if accepted, would demonstrate that, in fact, his application for a review by the Tribunal had been filed within time. I am prepared to accept, for the purposes of this application, that that establishes that matter at such a level that it can be described as a serious issue to be tried. I am also prepared to assume in Mr Potier’s favour that the argument as to the validity of the primary decision also raises issues which may be described as reasonably arguable.

5    The difficulty, it seems to me, is that this Court has no jurisdiction with respect to the subject matter of Mr Potier’s proposed applications. The original jurisdiction of this Court in respect of migration decisions is circumscribed by the operation of s 476A of the Act. That section provides as follows:

‘476A Limited jurisdiction of the Federal Court

(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.

Note:     An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975:

(a)    a privative clause decision;

(b)    a purported privative clause decision;

(c)    an AAT Act migration decision.

In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a), (b) or (c) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975.

The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non‑privative clause decisions.

(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.

(3)    Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)    a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or

(b)    a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).

(4)    Despite section 33 of the Federal Court of Australia Act 1976, an appeal may not be brought to the High Court from a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).

(5)    In this section:

judgment has the same meaning as in the Federal Court of Australia Act 1976.’

6    The expression ‘migration decision’ is defined in s 5 of the same Act to mean:

‘(a)    a privative clause decision; or

(b)    a purported privative clause decision; or

(c)    a non-privative clause decision.’

7    The effect of s 476A is, therefore, to deprive this court of any jurisdiction with respect to all but a narrow class of privative clause decisions or, importantly, purported privative clause decisions. The expression ‘privative clause decision’ is defined in s 474(2) in these terms:

‘…a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).’

8    I am satisfied that the decision of the Delegate made on 3 November 2015 and the decision of the Tribunal made on 17 November 2015 are, if valid, both privative clause decisions within the meaning of s 474(2).

9    Mr Potier, of course, argues that the primary decision is itself invalid, but this does not seem to me to matter. If the decision is invalid, it is a purported privative clause decision within the meaning of s 5 of the Act and, in those circumstances, the decision which Mr Potier seeks to challenge by his proposed originating processes invokes a jurisdiction which this Court is plainly deprived of by s 476A. It follows that, notwithstanding that I am prepared to accept that Mr Potier has shown a good case for the grant of an injunction (and in saying that I do not mean to tie the hands of any other Court which comes to look at this issue in the next 24 hours), I must refuse to grant him relief because I do not have the jurisdiction to do so.

10    Mr Potier made an additional argument that it would be extremely unjust for him to be deported, as he most likely will be tomorrow, in circumstances where he had brought his application to a Court which lacked jurisdiction without giving him an opportunity to make an application for an injunction to a court which had jurisdiction. Whether that be right or wrong, it does not seem to me to increase my jurisdiction to make orders which the legislature has been at pains to take away from this Court. In any event, Mr Potier has been aware since Friday afternoon, when he first appeared in front of Markovic J, about s 476A.

11    Whilst I accept that there is force in his submission that merely reading s 476A for the first time might not necessarily reveal to one the effect and operation it possesses, it does seem to me that he has had some time to consider whether he ought not to be applying in the Federal Circuit Court. Thus, whilst I do not accept that I have an extraordinary jurisdiction to assist him in that regard, I am not, in any event, sure that this would be an appropriate case for the exercise of such jurisdiction.

12    In those circumstances, I dismiss the application for an injunction, and I will dismiss substantively at this point the application for leave as well.

Associate:

Dated:    17 December 2015