FEDERAL COURT OF AUSTRALIA

SZTPE v Minister for Immigration and Border Protection [2015] FCA 1523

THE COURT ORDERS THAT:

1.    The papers marked Exhibit 1, received by the Court on the applicant’s oral application for an injunction to restrain the Minister for Immigration and Border Protection, as first respondent, from removing the applicant from Australia on the basis that the decision of the Refugee Review Tribunal made 5 November 2013 was invalid by reason of jurisdictional error, along with these orders, be deemed to be an originating application for the purpose of R 8.01 of the Federal Court Rules 2011 (Cth).

2.    The originating application be dismissed.

3.    The applicant pay the first respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    On 14 December 2015, the Court dismissed an application by the applicant for an injunction to restrain the Minister for Immigration and Border Protection from removing the applicant from Australia, on the basis that a decision of the former Refugee Review Tribunal, made 5 November 2013, was invalid by reason of jurisdictional error.

2    The application was made urgently and orally, the applicant then being based at the Villawood Detention Centre in Sydney, and the Court, and counsel appearing for the parties, being based in Perth.

3    The applicant had been advised by the Minister’s department, only a relatively short time before the application was made, that the applicant would be removed from Australia soon thereafter.

4    In all of those circumstances, the Court proceeded to hear the oral application but, as noted above, subsequently dismissed it.

5    In order formally to record the proceeding, and in the unusual circumstances as they existed, which included the likelihood that the applicant would be removed from Australia before she could take any further steps in the matter, the Court further ordered that:

1.    The papers marked Exhibit 1, received by the Court on the applicant’s oral application for an injunction to restrain the Minister for Immigration and Border Protection, as first respondent, from removing the applicant from Australia on the basis that the decision of the Refugee Review Tribunal made 5 November 2013 was invalid by reason of jurisdictional error, along with these orders, be deemed to be an originating application for the purpose of R 8.01 of the Federal Court Rules 2011 (Cth).

6    What follows are the reasons for the orders made.

7    In the course of argument, two primary issues were identified as being critical to the application before the Court:

(1)    whether the Federal Court of Australia had jurisdiction to entertain the application for an injunction restraining the Minister from removing the applicant from Australia;

(2)    even if the Court had jurisdiction, whether the applicant had shown a serious issue to be tried sufficient to support the granting of an interlocutory injunction.

8    As to the question of jurisdiction, ss 476 and 476A of the Migration Act 1958 (Cth) deal respectively with the jurisdiction of the Federal Circuit Court of Australia (FCCA) and the Federal Court of Australia.

9    Section 476, in respect of the FCCA, provides that:

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

(2)     The Federal Circuit Court has no jurisdiction in relation to the following decisions:

(a)     a primary decision;

(b)     a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

(c)     a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;

(d)     a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

(3)     Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.

(4)     In this section:

    primary decision means a privative clause decision or purported privative clause decision:

(a)     that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b)     that would have been so reviewable if an application for such review had been made within a specified period; or

(c)     that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).

10    Section 476A, in respect of the Federal Court of Australia, provides 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.

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.

11    The expression “migration decision” is defined by s 5(1) of the Migration Act to mean:

(a)    A privative clause decision; or

(b)    A purported privative clause decision; or

(c)    A non-privative clause decision; or

(d)    An AAT Act migration decision.

12    Each of the expressions in paras (a) to (d) are separately defined. It is plain enough from the terms of subs (1) of s 476A that the original jurisdiction of this Court in relation to a migration decision is limited by the Migration Act. It has original jurisdiction under the Migration Act in such a matter if, and only if, the decision falls into one of the four categories mentioned in s 476A(1), none of which appears to be relevant here. This is not a case where the FCCA has transferred a proceeding, the decision is not on the face of it a privative clause decision or a purported privative clause decision of the Administrative Appeals Tribunal on review under s 500 (on character grounds), nor is it such a decision made personally by the Minister under relevant provisions of the Migration Act, and it is not a case where this Court has jurisdiction under ss 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

13    While there can be little doubt that the FCCA would have jurisdiction to deal with an application for an injunction against removal, pursuant to s 476(1) of the Migration Act, this Court has, in one sense, an inferior jurisdiction to that of the FCCA in this regard. As the heading to s 476A of the Migration Act describes it, this Court has a “limited jurisdiction” under the Migration Act. Of course appeals from FCCA decisions may later come to this Court, pursuant to s 24(1) of the Federal Court of Australia Act 1976 (Cth).

14    Even if it could be argued that the Court is otherwise apprised of jurisdiction, there is a further difficulty in this case so far as the merits of the application are concerned. The applicant seeks to challenge, in effect, the validity of a decision made by the former Refugee Review Tribunal on 5 November 2013, by which it held that it did not have jurisdiction, or power, to review a decision of the Minister’s delegate to not grant a protection visa in circumstances where the applicant’s review application was made out of time.

15    In relation to that review application, the Tribunal found that the review application was lodged more than 28 days after the deemed receipt by the applicant of the Minister’s delegate’s decision refusing to grant a protection visa. The Tribunal found that in accordance with s 412(1)(b) of the Migration Act and reg 4.31 of the Migration Regulations 1994 (Cth), it could not deal with the application.

16    That decision was in fact the subject of an earlier judicial review application to the FCCA. In SZTPE v Minister for Immigration & Border Protection & Anor [2015] FCCA 460, 18 February 2015, Judge Emmett ultimately dismissed the application. Although the applicant had previously attended a directions hearing before the judge on 6 February 2014, the applicant failed to attend the final hearing.

17    At [14], the judge concluded that while she made no final determination as to whether or not the Tribunal’s decision was affected by jurisdictional error, none was apparent on the face of the decision record and none had been identified in the applicant’s grounds of application. In those circumstances, the judge dismissed the application.

18    In the face of this background, it is difficult to see how, as a matter of substance, it can be argued that either the Tribunal, or on judicial review, the FCCA, erred in any material respect. The reasons of the FCCA, reflecting the reasoning of the Tribunal, do not suggest any apparent error. Counsel for the applicant could not readily refer to any apparent error on behalf of the Tribunal or the FCCA.

19    In those circumstances, there does not appear to be any serious issue to be tried, even assuming the Court is possessed of jurisdiction to entertain the application.

20    It was in those circumstances that the Court dismissed the oral application made to it on 14 December 2015.

Associate:

Dated:    2 February 2016