FEDERAL COURT OF AUSTRALIA
TCWY v Minister for Immigration and Border Protection [2018] FCA 804
ORDERS
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application to file and serve the document titled an amended originating application for review of a migration decision is refused.
2. On or before 4pm on 1 June 2018, the respondent is to file and serve its amended notice of objection to competency dated 20 April 2018.
3. The application for an extension of time within which to file and serve an application for review of a migration decision is dismissed as incompetent.
4. The applicant is to pay the respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 The applicant claims to be a citizen of Iraq. By a so-called draft originating application filed on 1 December 2017 in this Court, the applicant seeks:
(1) an extension of time within which to apply for judicial review of the International Treaties Obligations Assessment (the ITOA) decision given on 23 November 2016 in respect of the cancellation of the applicant’s protection visa under subs 501(3A) of the Migration Act 1958 (Cth) (the Act);
(2) an order setting aside the ITOA “decision” on the ground of jurisdictional error; and
(3) an order quashing the decision of the Administrative Appeals Tribunals (the AAT) dated 19 June 2017 not to revoke the cancellation of the applicant’s protection visa under subs 501(3A) of the Act (the AAT decision) and remitting the matter to be determined by the AAT according to law.
2 The originating application erroneously refers (among other sections) to subs 476(1)(c) of the Act conferring jurisdiction on the Federal Circuit Court (FCC). However, in written and oral argument the applicant clarified that his case is that the Federal Court has jurisdiction with respect to the ITOA decision pursuant to subss 476A(1)(b) (and 474(3)(h)) of the Act.
3 The Minister challenges this Court’s jurisdiction to entertain the application for an extension of time. The grounds of that challenge are identified in its amended notice of objection to competency, namely:
(1) the ITOA is not the subject of a proceeding transferred to this Court by the FCC under subs 476A(1)(a) of the Act and is not a decision as described in subss 476A(1)(b) and (c);
(2) the applicant has not complied with the requirement under subs 486D(2) of the Act to disclose any judicial review proceedings already instituted by him in relation to the AAT decision when he commenced this proceeding; and
(3) the application was filed outside of the time prescribed by s 477A of the Act.
(I note that, despite leave being granted to amend the notice of objection to competency, the Minister failed to file a copy of the amended notice. I have made orders therefore requiring it to be filed and have proceeded on the basis that that order will be complied with in line with the manner in which argument proceeded.)
4 The applicant seeks to amend the originating application so as to “cure” the non-compliance with subs 486D(2) by identifying earlier judicial review proceedings NSD1268 of 2017 which culminated in the judgment of Robertson J in TCWY v Minister for Immigration and Border Protection [2017] FCA 1276 (TCWY (No 1)) delivered on 31 October 2017. However, that amendment is opposed by the Minister on the ground that subs 486D(2) imposes a jurisdictional precondition which cannot be retrospectively “cured”.
5 Following an adjournment of the hearing on 6 April 2018 on these issues, the Minister filed an interlocutory application seeking summary judgment of the application pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and rule 26.01 of the Federal Court Rules 2011 (Cth) (FCR). Summary judgment is sought on the basis that, to the extent that the applicant relies upon subs 476A(1) of the Act to found the jurisdiction of this Court and the application is otherwise competent, the proceeding should be dismissed as an abuse of process on the ground that the applicant has already unsuccessfully sought review in the Federal Court of the AAT decision.
6 For the reasons set out below, the application for leave to amend the originating application must be refused. The application for an extension of time is also dismissed for the reason that the application is incompetent as it does not comply with s 486D of the Act which is a jurisdictional precondition to the making of an application under the Act. As I later explain, I also consider that the application is an abuse of process and would have dismissed the application on this ground in any event even if it were otherwise competent.
7 The applicant relied upon the affidavit of Michaela Byers, solicitor, affirmed on 29 November 2017 which annexed the ITOA. In support of his application for an extension of time, the applicant also relies upon the affidavit of Graeme Swincer affirmed on 29 November 2017 (the Swincer affidavit). Mr Swincer’s evidence was not challenged.
8 The Minister relied upon the affidavit affirmed by Subasha Shradha Lakraji Badlu Prasad, solicitor, on 13 April 2018 (the Prasad affidavit) which annexed among other things the AAT decision, the notice of appeal and draft amended notice of appeal in the first judicial review proceeding, and the orders and reasons for decision in TCWY (No. 1).
3.1 Grant of a protection visa in 2006
9 The background to the application is set out in the applicant’s submissions on jurisdiction at [4]-[19] and is not in issue.
10 The applicant arrived in Australia by boat in 1999 as a minor together with his father. He alleged that he was a citizen of Iraq. On 22 September 2000, his father was granted a subclass 785 (Temporary Protection) visa (TPV) on the basis that he was a person to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954, as amended by the 1967 Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Refugees Convention). The applicant was granted a TPV on the basis of his membership of the same family unit which was subsequently extended on 2 September 2003.
11 On 27 October 2005, the applicant’s application for a protection (class XA) visa was refused and he applied for review of this decision by the then Refugee Review Tribunal (RRT). On 16 February 2006, the RRT remitted the applicant’s protection visa application to the (now) Department of Immigration and Border Protection (the Department) with a direction that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. In reaching its decision, the RRT apparently found that the applicant was a national of Iraq and not a national of Iran. It also found that the applicant did not have the right to enter into and reside in Iran. The applicant’s claims were therefore assessed as against Iraq as his country of nationality. The applicant was granted a third TPV and then, on 9 July 2009, a protection (class XA) visa.
3.2 Automatic cancellation of the applicant’s protection visa and the ITOA in 2016
12 The applicant has a lengthy history of criminal offences in Australia. On 19 January 2015, the applicant’s protection visa was automatically cancelled under subs 501(3A) of the Act due to criminal convictions. He was notified on 29 January 2016 that an ITOA was being commenced to “assist the Department in considering whether to revoke the cancellation of [your] protection visa.”
13 An ITOA was undertaken on 23 November 2016. It found that Australia did not owe non-refoulement obligations to the applicant under the Refugees Convention, the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, or the International Covenant on Civil and Political Rights. In reaching those views, the ITOA assessor found that the applicant was a national of Iran and assessed whether Australia owed non-refoulement obligations to the applicant as against Iran as the relevant country. The ITOA assessor also, among other things:
(1) took into account the Department’s identity assessment for the applicant dated 2015, finding that his father was an Iranian citizen and therefore that the applicant was also considered to be a citizen of Iran;
(2) referred to a UK Home Office report from 2016 stating that people with Iranian fathers are among those currently recognised as Iranian citizens; and
(3) took into account that the applicant’s father departed Australia in 2001 using an Iranian travel document acquired by legitimate means and that the applicant travelled to Iran on a six month trip in 2008-2009.
14 The ITOA also considered the applicant’s invited responses to this information, namely, that he is not an Iranian citizen because his father is stateless and the fact that he might claim Iranian citizenship does not equate to him holding Iranian citizenship. Overall, however, the ITOA found the country information and the Department’s identity assessment to be more compelling than the applicant’s contrary assertions.
3.3 The delegate’s decision to refuse to revoke the cancellation decision
15 On 23 December 2016, a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refused to revoke the cancellation decision on the ground that he was not satisfied that there was another reason why the original decision to cancel his visa should be revoked as required by subs 501CA(4)(b)(ii) of the Act. In reaching that decision, the delegate relied upon the IOTA assessment. The applicant was notified of this decision on 23 January 2017. (I note that it was agreed that the letter notifying the applicant of this decision erroneously referred to 2016 instead of 2017.)
3.4 The decision of the AAT affirming the delegate’s decision
16 On 14 February 2017, the applicant applied to the AAT under subs 500(1)(ba) for review of the delegate’s decision made pursuant to s 501CA(4) not to revoke the cancellation of his visa. It was not in issue that the IOTA’s findings were before the AAT as part of the file that was before the delegate. The AAT affirmed the delegate’s decision on 9 June 2017.
17 In the course of its reasons, the AAT observed that initially the applicant was accepted by the RRT as being a citizen of Iraq and considered that, if he was born in Iraq, that finding would appear to be correct (AAT reasons at [100]). The AAT considered that the question of whether the applicant was also an Iranian citizen is “very much up in the air”, noting the applicant’s claims that neither he nor his father were Iranian citizens (AAT reasons at [100]). The AAT also accepted that there were issues as to whether the applicant would be able to return to Iran and gave weight to his submission that he may be stateless (AAT reasons at [101] and [118]). However, the AAT found that if either possibility eventuated, other options would have to be explored by the Department and that it was unlikely he would remain in immigration detention indefinitely (AAT reasons at [101] and [118]-[120]). The AAT also accepted that the Department’s view was that the applicant was an Iranian citizen and the Department would do its best to return him to Iran, being a country in relation to which Australia’s non-refoulement obligations were not engaged (AAT reasons at [101] and [116] - [117]).
3.5 The first application for judicial review in the Federal Court
18 The applicant sought judicial review of the AAT decision in the Federal Court in proceeding NSD 1268 of 2017 (the first judicial review application) pursuant to s 476A(1)(b) of the Act which confers original jurisdiction on this Court to review a privative or purported privative clause decision made by the AAT under s 500 of the Act.
19 This application was dismissed by Robertson J on 31 October 2017: see TCWY (No. 1). In so holding, his Honour dismissed an application to amend the notice of appeal from the AAT’s decision so as to allege that the AAT fell into jurisdictional error in asking the wrong question or failing to have regard to relevant considerations. Relevantly, particulars of the further proposed ground of review were that:
a. The AAT failed to consider and reconcile the inconsistencies between the Refugee Review Tribunal decision dated 7 February 2006 that found the applicant was born in Iraq, he was an Iraqi national and that he was a refugee with the ITOA decision of 26 November 2017 (sic) that found that the applicant was born in Iran and was an Iranian national;
b. The AAT only considered that the applicant was an Iranian citizen and he may be removed to Iran and failed to turn its mind to the evidence before him that this may not be the case.
(TCWY (No. 1) at [5])
20 Leave to amend to add this ground was refused because no explanation was given as to why the proposed amendment had been notified only on the morning of the hearing and the point was not arguable (TCWY (No 1) at [11]-[16]).
21 There was no appeal from the decision in TCWY (No. 1).
22 The draft originating application sets out the grounds on which judicial review is sought in the event that an extension of time is granted, namely, that the ITOA is infected by jurisdictional error because:
(1) the ITOA assessor assessed the applicant only as against Iran as the reference country on the basis that he was a citizen of Iran and thereby failed to take account of a mandatory relevant consideration being the RRT’s finding in 2006 that the applicant was not a citizen of Iran (Ground 2 (a));
(2) the assessor failed to afford the applicant procedural fairness in:
(a) failing to provide him with sufficient details of adverse matters identified in his identity assessment dated 16 August 2016 (Ground 3(a)); and
(b) relying on country information with respect to Iran without allowing the applicant the opportunity to comment (Ground 3(b));
(3) the ITOA was legally unreasonable because the assessor:
(a) failed to have regard to a mandatory relevant consideration being the RRT decision (Ground 4(a)); and
(b) accorded disproportionate weight to the identity assessment dated 16 August 2016 (Ground 4(b)).
23 As a result, the applicant alleges that the AAT’s decision affirming the decision to cancel the applicant’s protection visa should be set aside because it relied on an invalid IOTA determination (Ground 6).
5.1 The alleged jurisdictional precondition in s 486D of the Act
24 The first question raised by the respondent’s amended notice of objection to competency is whether the proceeding is incompetent under subs 486D(2) of Part 8A of the Act. Subsection 486D(2) provides that:
A person must not commence a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision.
(emphasis added)
25 It is not in issue that no reference was made to the first judicial review application in TCWY (No. 1) in the application or in the supporting affidavit. However, as earlier mentioned, the applicant sought to “cure” that omission by the application to amend the application so as to disclose the earlier proceeding.
26 Subsection 486D(2) is in the same terms as subs 486D(1) save that subsection (1) imposes the same restriction upon the commencement of proceedings in the FCC. While counsel were unable to draw the Court’s attention to any consideration of s 486D by higher courts, the FCC has held that subs 486D(1) imposes a jurisdictional precondition to the commencement of proceedings. Thus in Prabhjot Singh v Minister for Immigration and Border Protection [2017] FCCA 223 (P Singh), Dowdy J held that the “uniform body of authority” in the FCC and its predecessor, the Federal Magistrates Court (FMC), correctly held that the disclosure required by s 486D(1) of the Act is a valid statutory requirement conditioning jurisdiction and that, therefore, a failure to comply with that requirement means that the Court lacks jurisdiction: P Singh at [27]-[33]. Furthermore, the FMC has held that the requirement, if not complied with, cannot be cured by amendment: MZXPI v Minister for Immigration and Citizenship [2008] FMCA 1296 at [16]-[17] Driver FM (applying SZKUT v Minister for Immigration and Citizenship [2008] FMCA 241 (SZKUT) at [12] - [15] (Smith FM)).
27 The applicant contended that these decisions were wrongly decided and should be overruled. In his submission, the relevant question was whether Parliament intended proceedings which did not comply with the provision be incompetent in line with the principles of construction articulated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky). Specifically, in Project Blue Sky, McHugh, Gummow, Kirby and Hayne JJ considered that:
93. … a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.… In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
28 I accept that the principles in Project Blue Sky apply by analogy to the question of statutory construction here, albeit that the question here is whether the proceeding is competent rather than “invalid”. However, in my view, the decisions of the FCC and the FMC correctly construed subs 486D(1) in line with these principles as imposing a jurisdictional precondition which must be met at the time that the proceeding is commenced. As such, subs 486D(2), which applies to the Federal Court but is otherwise in the same terms, should be construed in the same way.
29 First, this construction accords with the text and structure of the provision which is expressed as a prohibition upon a person commencing a proceeding “unless” the person “when commencing the proceeding” makes the required disclosure. As such, the provision is expressed as an inflexible rule applying at the time the proceeding is commenced. There is no express conferral of any discretion on a court to relieve a person of the requirement to make the disclosure when commencing the proceeding, whether by way of granting leave to amend the initiating process or otherwise; nor does the language suggest that any such discretion should be implied. In this regard, as Hayne, Heydon, Crennan and Kiefel JJ explained in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47], “[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention.”
30 Secondly, in expressing the requirement in s 486D as a prohibition on a person commencing a proceeding, it is plain that the Parliament did not intend that the courts to which the section applies would entertain proceedings commenced in violation of the disclosure requirement. To construe the provision otherwise would be to undermine the prohibition. As such the requirement can be described as a jurisdictional precondition with the consequence that a failure to comply with the requirement renders the proceeding incompetent.
31 Thirdly, s 486D appears in Part 8A (ss 486A-486D). That Part bears the heading “Restrictions on court proceedings” suggesting that the provisions within the Part were concerned with imposing restrictions on court proceedings: see subs 13(2)(d) of the Acts Interpretation Act 1901 (Cth) providing that any heading to a part constitutes part of an Act. Furthermore, within Part 8A, the Parliament has been careful to identify those circumstances in which it intended to allow for the possibility that the restrictions imposed by Part 8A might be lifted, and those where it did not. Thus some provisions in Part 8A impose restrictions together with a mechanism by which the restriction may be lifted, while other provisions impose restrictions in unqualified terms. For example, subs 486A(1) imposes a time limit within which applications must be made to the High Court subject to a discretion to extend time under subs 486A(2): see also e.g. subs 486B(2) prohibiting the consolidation of migration proceedings unless the Court is satisfied of certain matters. On the other hand, there is an unqualified prohibition on representative or class actions under subs 486B(4)(a), and unqualified restrictions are imposed on the classes of persons who may commence or continue proceedings in the FCC or Federal Court by s 486C.
32 Fourthly, as the applicant accepted, the purpose of s 486D is to prevent a multitude of different proceedings in different courts being pursued which challenge the same administrative decisions. As Smith FM held in SZKUT at [14], the jurisdictional nature of s 486D is confirmed by the extrinsic materials which, in enacting s 486D of the Act in 2005, “attempted to meet a problem faced by the Courts arising from the repeated bringing of judicial review proceedings. Section 486D was intended to require applicants to be candid with the Court in that respect, at the time when they initiated their new proceeding” (referring to the Migration Litigation Reform Bill 2005, Explanatory Memorandum (HR) (Explanatory Memorandum): see further the Explanatory Memorandum General Outline). By such means, the Parliament sought to assist the courts and the Minister in identifying applications which have already been the subject of proceedings for judicial review and to discourage applicants from attempting to re-litigate these matters, including as a means to delay their removal from Australia: Explanatory Memorandum at [51].
33 Furthermore, while the applicant submitted that a construction of the provision as imposing an incurable prohibition was unlikely given the “inconvenience writ large” that would result from such a construction, that submission fails to take into account that the applicant may make a fresh and competent application which complies with the statutory requirement. A failure to comply with the disclosure requirement is not, in other words, a bar to further proceedings being instituted which comply with s 486D. Furthermore as indicated by the extrinsic material, Parliament’s object was to improve the overall efficiency of migration litigation amid concerns as to large increases in the number of migration matters in the federal courts and high levels of unmeritorious migration litigation. It can readily be understood that overall, greater efficiencies are likely to be achieved by the disclosure of all other judicial review proceedings from the outset rather than by ad hoc disclosure later in the proceedings when significant resources may already have been expended in defending a proceeding that may, for example, constitute an abuse of process.
34 For these reasons, I agree that the construction of s 486D adopted by the FCC and FMC in the decisions relied on by the Minister is correct. It follows that the fact that the Minister appears to have known of the first judicial review application from the outset is irrelevant, contrary to the applicant’s submission. It also follows that the application must be dismissed by reason of the failure to comply with s 486D(2) of the Act when the proceeding was commenced and the application for leave to amend must be refused.
35 Finally, I note that absent s 486D(2), I would have found that the Court had jurisdiction under s 476A(1)(b) of the Act because the applicant seeks to quash the AAT’s decision which is a privative clause decision falling within s 476A(1)(b): see the definition of “privative clause decision” in s 474(2) and paragraph 3 of the “Details of relief sought” in the application for an extension of time. Section 476A of the Act relevantly 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:
…
(b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; …
(emphasis added)
36 Contrary to the respondent’s submissions, the fact that the applicant challenges the validity of the AAT decision by way of a challenge to the ITOA on which the AAT decision is in part based, does not alter the fact that the application is “in relation to” a decision of the AAT on review under s 500 of the Act. However, for reasons later explained, the applicant’s submission that this Court had jurisdiction separately attracted under s 476A(1)(b) because the ITOA was conduct preparatory to the making of the delegate’s decision and influenced the decision of the AAT is misconceived.
37 It is well established that any attempt to re-litigate issues that have already been resolved or ought reasonably to have been raised in earlier proceedings may amount to an abuse of process, irrespective of whether the earlier proceeding gives rise to a res judicata or issue estoppel: Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ). Anshun estoppel also prevents a person from raising a claim or issue which was so connected with the subject matter of the first proceeding as to make it unreasonable for the claim or issue not to have been made or raised in the first proceeding: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 603-604 (Gibbs CJ, Mason and Aiken JJ).
38 In Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, the High Court explained that the doctrine of abuse of process is informed in part by similar considerations of finality and fairness as those underpinning the doctrine of estoppel. As a consequence, the raising of an issue of fact or law, or the assertion of a right or obligation, in subsequent proceedings may constitute conduct giving rise to an estoppel and constituting an abuse of process: Tomlinson at [24] (French CJ, Bell, Gageler and Keane JJ). That said, as their Honours then explained:
25. Abuse of process, which may be invoked in areas in which estoppel is also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises close categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.…
26. Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.
39 The Minister submitted that the application should be summarily dismissed as an abuse of process in any event on the ground that:
Not only has [the Federal Court] already dismissed a review application from the Tribunal’s decision, but the very grounds now sought to be agitated were rejected by the Federal Court in those proceedings. Insofar as it is now sought to argue that the ITOA failed to take account of a “mandatory relevant consideration”, viz, the finding made by the Refugee Review Tribunal in February 2006 about the applicant’s nationality (grounds 2 and 4), those grounds were the subject of an unsuccessful application to amend in the 2017 proceedings.
40 Further, the Minister submitted that there was no reason why the ground alleging a breach of procedural fairness by reason of the AAT’s reliance on country information could not have been raised in the first judicial review proceeding before Robertson J.
41 Against this, Senior Counsel for the applicant contended that the application did not seek to mount a separate attack on the AAT decision but simply that, in the event that the proposed challenge to the ITOA was upheld, the AAT decision would be invalid as a consequence. The applicant accepted that he sought to argue before Robertson J that the AAT decision was invalid on the ground that there was a failure to have regard to the 2006 RRT decision. However, he submitted there was no challenge in the first judicial review proceeding to the validity of the ITOA and therefore the ground now sought to be argued was not, and could not have been, raised. Furthermore, the applicant pointed out that no procedural fairness ground was raised before Robertson J with respect to the AAT decision, let alone the ITOA.
42 I do not accept the applicant’s submission that there is no abuse of process because the present application seeks to challenge the ITOA with the AAT decision being invalid only as a consequence, whereas the first judicial review proceeding directly challenged the AAT decision. This argument relied upon the same argument put by the applicant in support of his contention that the Federal Court had jurisdiction with respect to the ITOA under s 476A(1)(b), namely, that the jurisdiction in this Court is separately attracted under s 476A(1)(b) because the ITOA is conduct preparatory to the making of the delegate’s decision and, therefore, the invalidity of the AAT decision is consequential only on the invalidity of the ITOA.
43 In support of this argument the applicant relied upon the decision in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 (SZSSJ). That decision concerned the power conferred on the Minister personally to grant a visa, or to lift a statutory bar to the making of a visa application, under ss 48B, 195A and 417 of the Act. Those powers were exercisable if the Minister thought that it was in the public interest to do so, but the Minister was under no duty to consider their exercise. As such, the powers were non-compellable.
44 In that context, the High Court held that the FCC had jurisdiction to entertain the challenge to the conduct of an ITOA by a Departmental officer in circumstances where the Minister had made a procedural decision to consider whether to grant a visa or to lift the bar in exercising his power under these provisions. The Court held that the action of conducting an ITOA was a “privative clause decision” by reason of the extended definition of that expression in subs 474(3)(h) of the Act to encompass conduct preparatory to the making of a decision (SZSSJ at [66]). Furthermore and critically, the Court held that:
71. Together, ss 474(7) and 476(2)(d) can be seen to implement a comprehensible legislative policy. A challenge to conduct undertaken by an officer of the Department under the Act and for the purpose of assisting the Minister’s consideration of the exercise of the non-compellable power can be heard and determined by the Federal Circuit Court. A challenge to a decision made by the Minister personally not to exercise a non-compellable power can only be heard and determined by this Court under s 75(v) of the Constitution.
45 Section 476(2)(d), to which the Court referred, provides that the jurisdiction of the FCC does not extend to a “privative clause decision” as defined in s 474(7), that is, a decision by the Minister not to exercise or consider the power relevantly under ss 48B, 195A or 417.
46 In seeking to rely upon SZSSJ here to contend that jurisdiction under s 476A(1)(b) extends to conduct preparatory to a decision under s 500 of the Act, the applicant with respect fails to have sufficient regard to the differences in jurisdiction between the FCC and the Federal Court. Subject to s 476 itself, subs 476(1) confers the same jurisdiction upon the FCC as the High Court has under s 75(v) of the Constitution. As such, the High Court at [71] held that the FCC in common with the High Court can exercise jurisdiction in relation to conduct preparatory to the exercise of a non-compellable power, subject to the carve out of the FCC’s jurisdiction in subs 476(2). By contrast, subs 476A(1) exhaustively defines the Federal Court’s original jurisdiction to entertain an application for judicial review in relation to a migration decision by reference to specific heads of jurisdiction. Relevantly, subs 476A(1)(b) confers original jurisdiction on the Federal Court “if, and only if” the decision “is” a privative clause decision “of the Administrative Appeals Tribunal on review under section 500”. Conduct preparatory to a decision by the delegate, being the ITOA, is manifestly not a decision “of” the AAT under s 500. As such, this Court has no jurisdiction separately to entertain the challenge to the ITOA outside the challenge to the AAT’s decision, which was the subject of the first judicial review proceeding.
47 Secondly and in any event, even if the applicant’s submission that this Court had jurisdiction because the ITOA was preparatory to the AAT decision was correct, this does not explain why the challenge to the ITOA ought not reasonably to have been raised in the first judicial review application. In both cases, it is the AAT decision which is the operative decision that determined the applicant’s rights. Even though the ITOA may have influenced the AAT’s decision as the applicant submits, ultimately the assessment had the status only of evidence before the AAT. Thus, the applicant seeks to challenge the ITOA in this proceeding only in order to quash the AAT decision and remit the matter to the AAT for determination according to law which was also the relief sought in the first judicial review proceeding. It follows that the explanation to this Court by the applicant’s advocate before the AAT, Mr Swincer, that he was unaware of the possibility that the ITOA could be challenged is no doubt genuine but does not afford a reasonable explanation for the failure to raise the issue in the earlier proceeding. In this regard, I further note that the applicant was represented in TCWY (No. 1) by (different) senior counsel and junior counsel and by the same solicitors.
48 For these reasons the application to amend the originating application is refused. As the application is incompetent by reason of the failure to comply with s 486D, there would be no point in allowing that amendment. The application for an extension of time within which to seek judicial review must also be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
