FEDERAL COURT OF AUSTRALIA

Moss v Minister for Immigration and Border Protection [2017] FCA 1243

ORDERS

THE COURT ORDERS THAT:

1.    Grant leave to the respondent to file in Court the affidavit of Sharon Anne Burnett affirmed 20 October 2017.

2.    The proceeding be dismissed.

3.    The applicant pay the respondent’s costs fixed in the sum of $10,500.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1    By originating application filed on 14 August 2017 the applicant, Michael John Moss, commenced this proceeding. In his originating application Mr Moss seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (Minister) on 5 August 2016 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the mandatory decision under s 501(3A) of the Act to cancel Mr Moss’ Class TY, Subclass 444 Special Category (Temporary) visa (Visa). The originating application attaches a copy of the delegate’s statement of reasons for decision under s 501CA of the Act not to exercise the discretion to revoke the mandatory cancellation decision under s 501(3A).

history of the proceeding

2    I will return to the form of the originating application and the relief sought by the applicant shortly. Before doing so, I set out briefly the history of this proceeding.

3    The proceeding was first listed for case management on 31 August 2017. At that time Mr Moss appeared in person. Orders were made for Mr Moss to file and serve any amended application and evidence on which he proposed to rely in support of his application or amended application, for the Minister to file and serve a court book and for the parties to file and serve their respective written submissions. An order was also made listing the matter for hearing on 20 October 2017 at 10.15 am.

4    On 5 September 2017 Ms Burnett, a solicitor in the employ of Clayton Utz solicitors, who act for the Minister in this proceeding, arranged for an email to be sent to the email address vidf_t&e_rfs@serco-ap.com.au. In that email a request was made for Mr Moss to be brought to Court on 20 October 2017 to attend the hearing commencing at 10.15 am.

5    On 12 September 2017 Clayton Utz wrote to Mr Moss. In that letter they said, among other things:

We note that you sought review of the Delegate’s decision in the Administrative Appeals Tribunal (Tribunal) and on 12 July 2017, the Tribunal affirmed the Delegate’s decision (Tribunal’s decision) (a copy of which we attach).

The Federal Court has no jurisdiction (no power) to review the Delegate’s decision. However, it can review the Tribunal’s decision.

We understand, that it is your intention to seek review of the Tribunal’s decision. If so, you will need to amend your Application by 28 September 2017 (as provided by order 1 of the orders made by the Court on 31 August 2017) to seek review of the Tribunal’s decision. You will also need to attach a copy of the Tribunal’s decision to your amended application and add the Administrative Appeals Tribunal as the second respondent to your application.

If no amended application is filed and served by you, we are instructed that the Respondent will submit, at the hearing of the Application on 20 October 2017, that the Federal Court has no jurisdiction to consider your Application.

6    On 20 September 2017 Clayton Utz sent a further letter to Mr Moss enclosing a draft copy of the court book. The purpose of doing so was to assist Mr Moss in the drafting of his amended application. That letter recorded, among other things, that:

In accordance with the orders of the court made on 31 August 2017, please ensure that you file and serve:

1.    Any amended application by 28 September 2017; and

2.    Any evidence in support of your amended application by 28 September 2017.

Once you have forwarded to us a copy of any evidence you wish to file, we will include that evidence in the court book to be filed and served on or before 3 October 2017.

If you fail to file an amended application by 28 September 2017, our client will file a notice of objection to competency. As indicated in our letter of 12 September 2017, the court has no jurisdiction (to review the decision of the delegate dated 9 August 2016).

7    On 28 September 2017 Mr Moss contacted Ms Burnett, who has daily carriage of the matter under the supervision of Mr Chami, the partner with carriage of the matter. Ms Burnett had a conversation with Mr Moss to the following effect:

Mr Moss:    I have your letters – what do I have to do?

Ms Burnett:    The Court cannot consider the delegate’s decision. As we have set out in our letters, if you want the Court to consider the decision of the Tribunal, you will need to file an amended application with the Court.

Mr Moss:    Is that the decision in the letter?

Ms Burnett:    Yes. You need to ask the Court to review the Tribunal’s decision of 12 July 2017 in your amended application and attach a copy of the Tribunal’s decision.

Mr Moss:    Okay. I will do that.

Ms Burnett:    You need to file your amended application in the next 2 days – it was due by today.

8    On 3 October 2017 Clayton Utz served on Mr Moss a copy of the court book filed on 29 September 2017. In their letter under cover of which the court book was served Clayton Utz once again requested that Mr Moss file his amended application seeking review of the decision of the Administrative Appeals Tribunal (Tribunal) by no later than 5 October 2017. They reminded Mr Moss that he had informed them during his conversation with Ms Burnett that he would be in a position to do so by 4 October 2017. The letter concluded:

If you fail to file an amended application by 5 October 2017, our client will file a notice of incompetency. As previously indicated in our correspondence to you, the Court has no jurisdiction to review the decision of the Delegate dated 9 August 2016.

9    On 9 October 2017 the Minister filed a notice of objection to competency and on the same day served a copy of that notice on Mr Moss.

10    On 13 October 2017 Clayton Utz, on behalf of the Minister, served by email and post a copy of the Minister’s outline of submissions. In their letter enclosing those submissions, they recorded:

We note that this matter is listed for hearing on 20 October 2017 at 10.15 am before Markovic J in the Federal Court, Law Courts Building, Queens Square, Sydney. If you do not attend the hearing, either in person or by a legal representative, we are instructed to seek to have your matter dismissed with costs.

11    On 19 October 2017 Ms Burnett arranged for an email to be sent to Mr Moss enclosing a list of authorities which had been filed on the same day. That letter once again notified Mr Moss that the matter was listed for hearing on 20 October 2017 at 10.15 am and that if he did not attend the hearing, either in person or by a legal representative, the Minister’s solicitors were instructed to seek to have the matter dismissed with costs.

12    This morning when the matter was called, including three times outside the Court room, there was no appearance by or on behalf of Mr Moss. Ms Burnett gave evidence that she telephoned the Villawood Immigration Detention Centre this morning prior to coming to Court. She was transferred to the transport and services department of Villawood Immigration Detention Centre and spoke with someone who identified herself as Ashley. Ms Burnett said that she informed Ashley that she had arranged for Mr Moss to attend court today and queried whether she knew the status of the transport. Ashley informed Ms Burnett that Mr Moss had declined to attend. Ms Burnett then asked Ashley whether he was not attending and not coming to Court. Ms Burnett deposed that Ashley had informed her that “that’s what my note says here”.

consideration

13    It is clear that Mr Moss has not attended today and, given the conversation Ms Burnett had with the person who identified herself as Ashley at the Villawood Immigration Detention Centre, does not intend to appear today despite arrangements having been made on behalf of the Minister for him to do so.

14    The Minister made an application that the proceeding be dismissed for want of jurisdiction, that is, because the Court has no jurisdiction to hear the matter. The question of jurisdiction was raised with Mr Moss and he was invited, and given an opportunity, to file an amended application. He has not done so.

15    The originating application filed by Mr Moss seeks judicial review of a decision made by a delegate of the Minister on 5 August 2016 not to revoke, under s 501CA(4) of the Act, the mandatory decision under s 501(3A) to cancel the Visa. The delegate’s decision was affirmed by the Tribunal on 12 July 2017.

16    This Court does not have jurisdiction to review the delegate’s decision. Section 476A(1)(c) of the Act gives this Court jurisdiction in relation to a migration decision if, and only if, the decision is a privative clause decision, or a purported privative clause decision, made personally by the Minister under ss 501, 501A, 501B, 501BA, 501C or 501CA. The decision that is sought to be reviewed is not within the confines of s 476A of the Act.

17    In those circumstances, the Court having no jurisdiction, I would accede to the application made by the Minister that the originating application should be dismissed.

18    The Minister also made an application for payment of his costs and for those costs to be fixed in the amount of $10,500 or such other sum as the Court deems fit pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth).

19    An affidavit sworn by Ms Burnett on 20 October 2017 was relied on by the Minister in support of that application. That affidavit has not been served on Mr Moss as it was intended to provide a copy of it to him this morning. Despite that fact, given Mr Moss’ refusal to attend this morning, I am prepared to consider the application for a fixed sum costs order.

20    Ms Burnett has set out those tasks undertaken in preparation of this matter for hearing and the costs incurred by the Minister in undertaking those tasks, as well as disbursements, being counsel’s fees, that have or will be incurred in respect of the proceeding. Ms Burnett has also indicated that, upon a taxation of costs in this Court, the Minister generally recovers between 65% and 75% of his professional costs incurred. On that basis she has calculated that the Minister would recover a sum within the range of $10,049 and $11,257 by applying those percentages to the professional fees incurred and adding counsel’s fees. In those circumstances, the Minister effectively seeks the midpoint of those amounts, being $10,500.

21    I am satisfied that it is appropriate to make a lump sum costs order, that the calculation reflects a reasonable amount that the Minister would recover and that an order for payment of costs fixed in the amount of $10,500 should be made.

22    In those circumstances, I will make the orders sought by the Minister today.

Associate:

Dated:    21 November 2017