FEDERAL COURT OF AUSTRALIA

Bi v Minister for Home Affairs [2019] FCA 563

ORDERS

THE COURT ORDERS THAT:

1.    The notice of objection to competency filed by the first respondent on 18 September 2018 (Competency Objection) be dismissed.

2.    The amended application for leave to appeal filed by the applicants on 20 February 2019 (Amended Application) be dismissed.

3.    The first respondent is to pay the applicants’ costs of the Competency Objection.

4.    The applicants are to pay the first respondent’s costs of the Amended Application.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application for leave to appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 16 April 2018. The Federal Circuit Court made two sets of orders on that day: by the first set of orders, which are the subject of this application, it dismissed an application in a case brought by the applicants seeking to reopen their case following the final hearing of their application for judicial review to advance additional grounds of review and evidence (see Bi v Minister for Immigration [2018] FCCA 335 (Interlocutory Judgment)); and by the second set of orders it dismissed the substantive application for judicial review of the decision of the former Migration Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) (see Bi v Minister for Immigration (No 2) [2018] FCCA 833 (Final Judgment)).

2    The Tribunal had affirmed a decision of the delegate of the first respondent (Minister) refusing to grant each of the applicants a Temporary Business Entry (Class UC) visa (Visa). The first and second applicants are mother and son and the second applicant applied for the Visa as a dependant of his mother.

BACKGROUND

3    The applicants are citizens of China. On 5 June 2013 they applied for the Visas. The first applicant applied on the basis of a nomination from her sponsor, Aumay Group Pty Ltd, for the position of “general manager”.

4    In the application, the first applicant declared that she had never previously been refused an Australian visa.

5    On 12 September 2013 a delegate of the Minister refused to grant the Visas to the applicants because the first applicant did not satisfy cl 457.224(1) of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations) as she did not meet Public Interest Criterion (PIC) 4020 contained in Sch 4 of the Regulations. The delegate found that, contrary to the declaration in her Visa application form, the first applicant had twice been refused an Australian visa in 2012.

6    On 13 September 2013 the applicants applied for review to the Tribunal where they were represented by a registered migration agent. The applicants attended a hearing before the Tribunal on 31 October 2014.

7    On 19 November 2014 the Tribunal affirmed the decision under review, finding that the information provided by the first applicant about her previous visa applications was false in a material particular and that there was no basis upon which the requirements of PIC 4020(1) or (2) of Sch 4 to the Regulations should be waived.

8    The applicants commenced proceedings in the Federal Circuit Court challenging the Tribunal’s decision. After filing their application, they were represented by a solicitor, Mr Jones, who entered into consent orders made on 4 February 2015 setting a timetable for the preparation of the matter for hearing and setting the matter down for hearing on 4 October 2016. On the application of the applicants, made on or about 29 September 2016, the hearing was adjourned to a later date.

9    On 31 January 2018, when the matter was listed for hearing, the applicants were no longer represented by Mr Jones and they appeared in person. At the conclusion of the hearing the Federal Circuit Court reserved its judgment.

10    On 16 February 2018, when the matter was listed for handing down of judgment, the second applicant informed the Federal Circuit Court that he wished to provide more documents to the court which he said were relevant to the applicants’ case. Accordingly, the primary judge adjourned the handing down of judgment and granted the applicants leave to file an application in a case seeking leave to reopen their case.

11    The applicants filed their application in a case on 9 March 2018 and it was listed for hearing on 13 March 2018. On that occasion the applicants were represented by Christopher Levingston & Associates. The applicants submitted that they wished to reopen their case to put a transcript of the Tribunal hearing before the court. They contended that they had been deprived of the opportunity to attend the first court date on 4 February 2015 as their solicitors at the time had not been formally engaged and had acted without their instructions and they were not provided with a copy of the court’s orders made at that time.

12    Following the hearing of the application in a case the primary judge reserved judgment. As set out at [1] above, the Interlocutory Judgment and the Final Judgment were handed down on 16 April 2018.

THE FEDERAL CIRCUIT COURT JUDGMENTS

The Interlocutory Judgment

13    The primary judge dismissed the application in a case. In his reasons the primary judge set out several bases upon which he said that application should be refused, including that:

(1)    at least as at 29 September 2016 the applicants must have been aware of the orders made for the conduct of the case in February 2015 or, at the very least, must have had knowledge of the order setting the matter down for final hearing. That this was so was evident from the fact that on or about 29 September 2016 the second applicant approached the Minister’s solicitor in an attempt to adjourn the hearing date that had been allocated in the orders made in February 2015, which in fact occurred;

(2)    the primary judge rejected the applicants’ claim that they had no knowledge of the relevant process. The primary judge also found that there was no evidence to explain why the applicants took no steps to obtain legal advice or otherwise gain the necessary knowledge about how to prosecute their case, which they claimed they lacked;

(3)    the applicants had not satisfactorily explained why it took them at least 16 months to acquire the knowledge they said was denied to them by their first solicitor, Mr Jones, and that, in the circumstances, the applicants had had a reasonable and fair opportunity to properly prepare for the final hearing;

(4)    at the final hearing the second applicant made reference to documents he wished to give to the court but he did not identify any specific documents. In any event, the handing down of judgment was adjourned until 12 March 2018 and the applicants were given the opportunity to present the documents they said they were denied the opportunity of providing at the final hearing; and

(5)    having filed their application in a case, there was nothing in the affidavit in support or in that application that related to the documents that the applicants claimed they wished to provide to the court at the final hearing but which they said they were denied the opportunity to so provide. Nor was there anything from the applicants to indicate the nature of any claimed interpretation errors at the Tribunal hearing and whether such errors were material to any finding made by the Tribunal and the disposition of the application for review such that leave should be granted to the applicants to reopen their case.

The Final Judgment

14    The primary judge dismissed the substantive application seeking judicial review of the Tribunal’s decision. The applicants raised three grounds before the Federal Circuit Court, set out in the primary judge’s reasons at [17], as follows:

1.    The Tribunal has fallen into error concerning the exercise of the discretion.

2.    The interpreters didn’t translate correctly and effectively between the applicant and the member.

3.    The decision of the member was made on insufficiency and incomplete evidence.

[Errors in original.]

15    The primary judge found that none of those grounds identified error in the Tribunal’s decision.

PROCEDURAL HISTORY IN THIS COURT

16    On 27 April 2018 the applicants lodged their application for leave to appeal from the Interlocutory Judgment with the Court (Application). At that time they were represented by Michael Vassili Barristers and Solicitors. On 3 May 2018 the Application was accepted for filing by the Court.

17    On 7 September 2018 the Court made directions for the preparation of the Application for hearing, including that any notice of objection to competency be filed and served within seven business days of the date of the directions; the applicants file and serve a draft notice of appeal setting out particularised grounds of appeal within ten business days of the date of the directions, if not already filed; and for the filing and service of submissions by the applicants and the Minister.

18    On 18 September 2018 the Minister filed a notice of objection to competency (Competency Objection) and affidavit in support affirmed by Charlotte Elizabeth Saunders, a solicitor in the employ of the Minister’s solicitors, on that date.

19    On 8 October 2018 the parties were notified by email, through their respective solicitors, that the matter was listed for hearing on 14 November 2018 at 2.15 pm.

20    On 7 November 2018 the applicants lodged an interlocutory application with the Court relevantly seeking an order that the hearing listed on 14 November 2018 be vacated (First Adjournment Application) and an affidavit sworn on 7 November 2018 by Malik Hameed, a solicitor in the employ of the then solicitors for the applicants.

21    On 7 November 2018 the Minister also filed his submissions in accordance with the Court’s directions made on 7 September 2018.

22    On 9 November 2018 the First Adjournment Application was listed for hearing before me. It was opposed by the Minister. Mr Hameed appeared for the applicants. The applicants submitted that they required an adjournment in order to obtain the sound recordings of the hearings before the primary judge. The application for an adjournment of the magnitude sought was declined but, in order to give the applicants some additional time, I adjourned the hearing from 14 to 16 November 2018 at 10.15 am. The First Adjournment Application was otherwise dismissed and the applicants ordered to pay the Minister’s costs of that application.

23    On 13 November 2018 Michael Vassili Barristers and Solicitors contacted my Associate by email noting that they no longer acted for the applicants, requesting leave to withdraw from attendance on future dates and attaching a notice of ceasing to act. On 15 November 2018 the second applicant emailed my Associate stating that the notice of ceasing to act had not been served on them until that day and, accordingly, seeking an adjournment of the hearing listed for 16 November 2018 so that the applicants could retain new lawyers (Second Adjournment Application). That application was opposed by the Minister.

24    On 16 November 2018 the parties appeared before me and the second applicant again sought an adjournment of the hearing. Over the Minister’s opposition an adjournment was granted. The hearing was adjourned to 31 January 2019 and orders were made for the applicants to file their submissions by 16 January 2019 and for the Minister to file any further submissions in reply by 25 January 2019. The costs of the Second Adjournment Application were reserved.

25    On 31 January 2019 the applicants filed a notice of acting - appointment of lawyer appointing Mr Matthew Phillip Fitzgerald of Fitzgerald Naylor Lawyers as their solicitor and an interlocutory application seeking, among others, orders that the hearing on 31 January 2019 be vacated and that the matter be set down for hearing on a date to be fixed (Third Adjournment Application). The basis for the Third Adjournment Application was that Fitzgerald Naylor Lawyers had only recently been appointed and they required time to prepare the matter for hearing.

26    On 31 January 2019 orders were made vacating the hearing scheduled to take place on that day; listing the matter for hearing on 27 February 2019; for the applicants to file and serve any amended application for leave to appeal from the Interlocutory Judgment, application in relation to the Final Judgment, affidavits in support and submissions; for the Minister to file any further submissions and affidavits in support; for the applicants to pay the Minister’s costs of and incidental to the Second Adjournment Application; and for the applicants to pay the Minister’s costs of the Third Adjournment Application and his costs thrown away by reason of the adjournment of the hearing on an indemnity basis.

APPLICATION FOR LEAVE TO APPEAL AND NOTICE OF OBJECTION TO COMPETENCY

27    In the Application the applicants raise the following grounds:

1.    On the basis that the decision of Judge Nicholls made on 16 April 2018 in the Federal Circuit Court of Australia, was an interlocutory order under 17A of the Federal Circuit Court of Australia Act 1999; then the Appellant craves leave to appeal pursuant to r 44.12 of the FCC Rules and r 35.12 of the FC Rules.

(a)    The Primary Judge erred by not granting an adjournment to the Appellant on 31 January 2018, in the premises.

(b)    The Primary Judge erred by making a finding not available on the evidence as before the court, or in the alternative by taking into account an irrelevant consideration.

(c)    The Primary Judge erred by not recognising that the Tribunal failed to perform a review

28    The Application was not accompanied by the judgment or order from which leave to appeal is brought; the reasons for judgment or order; an affidavit supporting the Application or a draft notice of appeal as required by r 35.12 of the Federal Court Rules 2011 (Cth) (Rules). Nor does it include a certification by the applicants’ lawyers at the time pursuant to s 486I of the Migration Act 1958 (Cth) (Act).

29    On 20 February 2019 the applicants filed a further application for leave to appeal (Amended Application) in which they raise a single ground, namely:

1.    On the basis that the decision of Judge Nicholls made on 16 April 2018 in the Federal Circuit Court of Australia, was an interlocutory order under section 17 of the Federal Circuit Court of Australia Act 1999; then the Appellant seeks leave to appeal pursuant to r 44.12 of the FC Rules and r 35.12 of the FC Rules.

(a)    The Primary Judge erred in refusing the application to re-open the Applicants’ case.

30    Like the Application, the Amended Application was not accompanied by the judgment or order from which leave to appeal is brought; the reasons for judgment or order; or an affidavit supporting the application or a draft notice of appeal as required by r 35.12 of the Rules. However, the Amended Application includes a certificate under s 486I of the Act signed by the applicants’ current lawyer, Mr Fitzgerald.

31    In the Competency Objection, the Minister objects to the competency of the Application. The Minister seeks to have the Application dismissed summarily as incompetent because the applicants have not complied with r 35.12 of the Rules and because the Application does not comply with the requirements of s 486I of the Act.

CONSIDERATION

Competency Objection

32    The Minister pressed his Competency Objection in relation to the Amended Application. Given the relief sought, it is necessary to consider this first.

33    As noted at [31] above, there are two bases upon which the Minister contends that the Amended Application is incompetent and should be dismissed.

34    The first is the failure by the applicants to comply with r 35.12(2) of the Rules which relevantly provides, in the case of an application for leave to appeal, that:

(2)    The application must be accompanied by the following:

(a)    the judgment or order from which leave to appeal is brought;

(b)    the reasons, if published, for the judgment or order;

(c)    an affidavit stating the facts that support the application;

(d)    a draft notice of appeal that complies with rules 36.01(1) and (2); and

(e)    if the applicant wants to have the application considered without oral argument—a statement to that effect.

35    As set out at [28] and [30] above, the Application and the Amended Application do not comply with r 35.12(2) of the Rules. Nor did the applicants seek an order that the Court dispense with the requirement for compliance with any part of r 35.12(2): see r 1.34 of the Rules.

36    As the Minister observed, the applicants’ defaults could be remedied by later compliance with the Rules. However, given that by the time of the hearing they had not been complied with, the Minister submitted that the Amended Application was incompetent. Before turning to consider whether that is so, it is appropriate to make several observations.

37    The Rules apply to proceedings commenced in the Court and prescribe the procedures to be followed by litigants in the Court in the conduct of proceedings. They have a purpose of assisting the parties and the Court in the orderly conduct and administration of the business of the Court. That said, the Rules are not to be applied inflexibly. There are times where a party may not be able to comply with particular requirements of the Rules or where the Rules are not apt to be applied to the particular circumstances of a case. However, the Rules are not simply to be ignored without explanation particularly where, as here, the applicants were represented at the time of the filing of both the Application and the Amended Application.

38    Putting those matters to one side, the failure to comply with r 35.12(2) of the Rules is not a basis on which I would dismiss the Amended Application as incompetent. Non-compliance with the Rules is not a matter that goes to the Court’s jurisdiction. Put another way, it could not be said that compliance with, relevantly, r 35.12(2) is a precondition to the exercise by the Court of its jurisdiction which is conferred by s 24 of the Federal Court of Australia Act 1976 (Cth). Rather, a failure to comply with r 35.12(2) may have other ramifications. For example, where a draft notice of appeal is not provided and no grounds of appeal are articulated the application for leave to appeal would be dismissed because of a failure by the applicant to establish that there was any basis, let alone an arguable basis, for a grant of leave to appeal.

39    I turn to consider the second basis on which the Minster contends that the Amended Application should be dismissed as incompetent. That depends on the failure by the applicants to comply with s 486I(1) of the Act at the time of the filing of the Application.

40    In order to consider this basis for objection to competency it is necessary to have regard to the relevant statutory framework.

41    Section 486I appears in Pt 8B of the Act, which is titled “Costs orders where proceedings have no reasonable prospect of success”, and provides:

(1)    A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.

(2)    A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.

42    Section 486K defines “migration litigation” as “a court proceeding in relation to a migration decision”.

43    A “migration decision” is defined in s 5 of the 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.

44    In addition:

(1)    rule 8.04 of the Rules, titled “Application starting migration litigation to include certificate”, provides:

(1)    For section 486I of the Migration Act 1958, a lawyer may file an originating application starting migration litigation only if the application includes a certificate in accordance with the certificate contained in Form 15, signed by the lawyer.

(2)    In this rule:

lawyer has the meaning given by section 5 of the Migration Act 1958.

(notes omitted.)

(2)    section 5 of the Act defines “lawyer” to mean a barrister; solicitor; barrister and solicitor; or a legal practitioner of the High Court or the Supreme Court of a State or Territory;

(3)    Note 1 to r 35.12 of the Rules refers to s 486I of the Act and notes that “[a] lawyer may file a notice of appeal starting migration litigation only if the notice includes or is accompanied by a certificate under section 486I of the [Act], signed by the lawyer”; and

(4)    for the purposes of the Rules, “migration litigation” has the meaning given by s 486K of the Act: see Sch 1 Dictionary.

45    A threshold question which arises is whether the Application (and Amended Application) is a document commencing migration litigation. Because that question had not been fully addressed in oral argument, after the hearing I sought further written submissions from the parties.

46    On that issue, the Minister accepted that the definition of “migration decision” in s 5 of the Act applies to that expression as it appears in s 486K and that the Interlocutory Judgment is not a “migration decision” as defined by s 5 of the Act. Rather, the Minister submitted that the Tribunal’s decision the subject of the application for judicial review in the Federal Circuit Court is a “migration decision” because the Tribunal’s decision is a privative clause decision, or a purported privative clause decision. The Minister further submitted that on this basis the Application is a “court proceeding in relation to a migration decision” for the purposes of s 486I of the Act. The Minister submitted that the phrase “in relation to” is of broad ambit such that, relevantly, an application for leave to appeal to this Court from orders of the Federal Circuit Court concerning review of a Tribunal decision is “migration litigation” as defined in s 486K of the Act, just as an application for judicial review of a Tribunal decision to the Federal Circuit Court would come within the definition.

47    More generally, the Minister acknowledged that there was limited judicial authority on the consequence of a failure by an applicant’s lawyer to comply with s 486I of the Act. However, he relied on two decisions in this Court, SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 and TCWY v Minister for Immigration and Border Protection [2018] FCA 804, the latter of which he submitted gave some support, by analogy, to his submission that the Amended Application should be dismissed as incompetent because of the failure to comply with s 486I at the time of commencement of the proceeding. That is, when the Application was filed. The Minister submitted that the failure to comply with s 486I at the commencement of the proceeding could not be cured or rectified by, as is the case here, including a certification in an amended pleading.

48    The effect of the Minister’s submissions is that if there has been failure to comply with s 486I(1) of the Act at the commencement of a proceeding, that proceeding is forever tainted by that failure which cannot be cured. The Minister contended, by reference to the language of s 486I, that Parliament intended for there to be certification at the commencement of the proceeding such that certification is a jurisdictional precondition to the competency of the proceeding.

49    As noted at [45] above, the first question to address is whether the Application is a document commencing “migration litigation” within the meaning s 486K of the Act. In order for the court proceeding to meet that definition it must be a court proceeding in relation to a “migration decision” as that term is defined in s 5 of the Act.

50    As clarified by counsel for the applicants and by the Amended Application, the applicants seek leave to appeal from the Interlocutory Judgment. By the Interlocutory Judgment the Federal Circuit Court dismissed the applicants’ application in a case filed on 9 March 2018. The application in a case that was before the primary judge was not before me but there was no dispute between the parties that, as explained by the primary judge at [38] of the Interlocutory Judgment, the applicants sought leave to reopen their application for judicial review in order to put a transcript of the Tribunal hearing before the Court.

51    As summarised at [46] above, the Minister acknowledges that the Interlocutory Judgment is not a “migration decision” within the meaning of s 5 of the Act. But the Minister argues that the Application (and Amended Application) is nonetheless a document commencing “migration litigation” for the purposes of s 486I of the Act because it commences a court proceeding “in relation to a migration decision”. I do not agree. My reasons follow.

52    I accept that the Tribunal’s decision is a privative clause decision or a purported privative clause decision as defined by the Act: see s 474(2) and s 5E of the Act. Thus the Tribunal’s decision is a “migration decision” for the purposes of s 5. It follows that the application for judicial review filed in the Federal Circuit Court is a document commencing migration litigation because it commences a court proceeding in relation to a migration decision. The primary judge delivered two judgments in that proceeding: the Interlocutory Judgment and the Final Judgment. These judgments respectively addressed the application in a case seeking to reopen and lead further evidence and the application for judicial review of the Tribunal’s decision.

53    The Application is confined to seeking leave to appeal from the Interlocutory Judgment which the Minister accepts is not a “migration decision”. If successful, the applicants will be granted leave to appeal from the Interlocutory Judgment.

54    In support of his submission the words “in relation to” used in s 486K are words of broad ambit and that their meaning will depend on the context in which they are used, the Minister relied on Burswood Management Limited v Attorney-General (Cth) (1990) 23 FCR 144 at 146 (Burswood). In Burswood the Court relevantly noted that the meaning to be attributed to those words depends on the particular statute in which they appear: at 146. That case concerned a consideration of the meaning of the words “in connection with” as opposed to the words “in relation to” which are used in s 486K of the Act. I accept that, by analogy, the statement of principle in Burswood would generally apply to the words “in relation to”. However, it is also relevant to have regard to those decisions that have considered the words “in relation to” in the context of the Act.

55    In Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 (Bodruddaza) the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ, Callinan J agreeing) considered the construction of s 486A of the Act which sets out time limits on applications to the High Court for judicial review and, at the time, relevantly provided in subs (1) that an application for a remedy to be granted in exercise of the High Court’s original jurisdiction “in relation to a migration decision” must be made within 28 days of the actual (as opposed to deemed) notification of the decision. In considering the meaning of the phrase “in relation to a migration decision” the High Court relevantly said at [21]-[25]:

21.    The Solicitor-General of the Commonwealth submitted that the phrase in s 486A(1) “a remedy ... in relation to a migration decision” was sufficiently broad to encompass more than applications for judicial review. He submitted that, for example, unless the plaintiff complied with s 486A, an action in tort would not lie in the original jurisdiction of this Court against the Commonwealth for false imprisonment where an officer had detained the plaintiff as an unlawful non‑citizen without the knowledge or reasonable suspicion stipulated by s 189 of the Act.

22.    Counsel for the plaintiff advanced cogent reasons why the phrase “a remedy ... in relation to a migration decision” should not be given a reading which would take s 486A beyond public law remedies and into the area of what might be called collateral attack upon migration decisions.

23.    First, the plaintiff emphasised the extensive scope of the definition of “migration decision” in s 5(1), and in particular the inclusion of proposed decisions in the definition of “purported privative clause decision” found in s 5E. The tortious conduct completing a cause of action might well take place after the end of the 84 day period stipulated in s 486A by reference to actual notification of a migration decision. Such a draconian, if not irrational, legislative scheme should not be attributed to the Parliament in the absence of clear words.

24.    Secondly, the perceived mischief to which the 2005 Act was directed concerned the challenge by judicial review processes to migration decisions. The application to this Court identified in s 486A(1) is “for a remedy” by way of judicial review, specifically in a s 75(v) matter. The Explanatory Memorandum on the Bill for the 2005 Act circulated by the authority of the Attorney-General to the House of Representatives is instructive in this respect. Section 486A was one of several provisions included in the 2005 Act amendments with the avowed objective “to impose uniform time limits for applications for judicial review of migration decisions in the [Federal Magistrates Court], the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court”.

25.    Accordingly, the submission now made by the Solicitor-General which would give broader reach to s 486A should not be accepted.

(footnotes omitted.)

56    In Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17 (Plaintiff S99/2016) Bromberg J considered the meaning of the phrase “in relation to a migration decision” in the context of s 476A and s 486A of the Act. At [417], after setting out [21]-[25] in Bodruddaza, his Honour said:

417.    In other words, the Court construed the words “a remedy … in relation to a migration decision” as applying only to judicial review applications, that is, in relation to public law remedies sought in relation to a migration decision. The words “a remedy … in relation to a migration decision” did not capture, for example, an action in tort for false imprisonment relating to detention purportedly under s 189 of the Act (as the Solicitor-General had submitted that it did). A plaintiff would not be precluded by s 486A(1) from bringing an action in false imprisonment after the 84-day period prescribed by the section.

57    In Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 (Tang) a Full Court of this Court (Rares, Perram and Wigney JJ) considered whether a proceeding to quash orders of the Federal Circuit Court refusing to extend the time for the making of an application to quash the migration decision of the Tribunal was itself “in relation to” a migration decision. If it was, the Full Court would have no original jurisdiction given the operation of s 476A(1) of the Act. In considering that issue, the Full Court had regard to the meaning of the phrase “in relation to” and observed at [5], quoting Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510 at [25] per French CJ and Hayne J, that it “can be used in a variety of contexts ‘in which the degree of connection that must be shown between the two subject matters joined by the expression may differ’” and that ‘“the subject matter of the inquiry, the legislative history, and the facts of the case are all matters’ which will bear upon the judgment whether one concept is ‘in relation to’ another”. At [7]-[9] their Honours said:

[7]    The expression “in relation to a migration decision” appears throughout Div 2 of Pt 8. In particular, ss 477 and 477A require proceedings “in relation to a migration decision” in the original jurisdiction of the Federal Circuit Court and in this Court’s circumscribed original jurisdiction to be commenced within 35 days of the migration decision. These time limits make little sense if proceedings “in relation to a migration decision” were to include collateral challenges to the underlying migration decision such as might occur in a case alleging false imprisonment. It is established, therefore, that such a challenge is not caught by s 486A of the Act: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651. That decision does not directly govern this case because Mr Tang’s proceeding does not involve a collateral challenge to the decision not to reinstate his visa and because s 486A (which placed time limits on when an application to the High Court “in relation to a migration” had to be made) is contained in Pt 8A and not Div 2 of Pt 8. There is no relevant difference, however, between Pt 8A and Div 2 of Pt 8 in relation to the issue of construction which arises and the presence of s 486A in Pt 8A may be put aside.

[8]    Bodruddaza does nevertheless establish, that “in relation to” has a narrower operation in the present context than its ordinary meaning might otherwise suggest. In Bodruddaza the High Court held that the expression “a remedy … in relation to a migration decision” in s 486A “should not be given a reading which would take s 486A beyond public law remedies and into the area of what might be called collateral attack upon migration decisions” (at [22]; see also: [25] and [79]). This does not directly control the outcome of this matter either because Mr Tang’s application is properly characterised as one which seeks a public law remedy, namely, writs of mandamus and certiorari against an officer of the Commonwealth. On the other hand, one of the reasons the High Court accepted the limitation on s 486A (at [24]) was that given in the Explanatory Memorandum for the Migration Litigation Reform Bill 2005 (Cth) which accompanied its introduction. That showed that the legislation was introduced with the avowed objective “to impose uniform time limits for applications for judicial review of migration decisions in the [Federal Magistrates Court], the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court”.

[9]    That objective would not be served by extending the concept of proceedings “in relation to a migration decision” to include cases where judicial review is sought of orders made by the Federal Circuit Court in respect of an underlying migration decision. Although it is also true that the broader interpretation would not hinder the achievement of that objective we do not consider that it is the interpretation which would “best achieve the purpose or object of the Act”: cf Acts Interpretation Act 1901 (Cth) s 15AA. Consequently, we conclude that Div 2 of Pt 8 of the Act is confined by the use of expression “in relation to a migration decision” to applications for direct judicial review of migration decisions and does not extend to ancillary judicial review proceedings in respect of orders made in proceedings of that kind.

58    The Full Court concluded that the proceeding to quash the orders of the Federal Circuit Court was not “in relation to a migration decision” so that s 476A did not operate to remove any original jurisdiction this Court otherwise had to hear the claim.

59    In this case, the expression “in relation to a migration decision” should be construed having regard to the purpose of the Act and the particular context in which it appears. Section 486I and s 486K were inserted into the Act by the Migration Litigation Reform Bill 2005 (Bill), along with s 476A and s 486A and numerous other provisions. As the Explanatory Memorandum to the Bill notes at [76], s 486K, in which the expression relevantly appears, is definitional. It goes on to explain that the definition of “migration litigation” “makes clear” that Pt 8B “only applies to applications for judicial review of migration decisions commenced in a court”.

60    As is demonstrated by the cases set out above, the phrase “in relation to a migration decision” has been considered for the purposes of the Act, albeit in the context of other provisions. The High Court in Bodruddaza rejected a submission that that expression would encompass more than applications for judicial review. As Bromberg J explained in Plaintiff S99/2016, the High Court construed the words “a remedy … in relation to a migration decision” as applying in relation to public law remedies sought in relation to a migration decision. In Tang the Full Court observed that Bodruddaza established that “in relation to” has a narrower meaning in the context of the Act than might otherwise be the case. The Full Court in Tang held that Div 2 of Pt 8 of the Act is confined in the use of the expression “in relation to a migration decision” to applications for “direct judicial review” of migration decisions and does not extend to ancillary judicial review proceedings in relation to orders made in proceedings of that kind. That reasoning equally applies in the context of s 486K such that for the purposes of Pt 8B and, relevantly, s 486I, “migration litigation” is confined to applications for “direct judicial review” of migration decisions and does not include ancillary judicial review proceedings, in relation to orders made in such proceedings.

61    It follows that, contrary to the Minister’s submission, I do not accept that the Application is “in relation to a migration decision”. It is not an application for leave to appeal from the Final Judgment. If it was, the application for leave to appeal would, in my opinion, be “in relation to” a migration decision, that is, the Federal Circuit Court’s decision refusing the application for judicial review of the Tribunal’s decision, and thus a document commencing “migration litigation” as contemplated by s 486K of the Act.

62    The Application is not of that nature. It is one step removed. The Application seeks leave to appeal from a procedural decision of the Federal Circuit Court. It seeks only to challenge the finding of the primary judge refusing the applicants leave to reopen their case. It is an ancillary proceeding of the nature referred to in Tang. Accordingly, the Application is not a document commencing “migration litigation”. It follows that s 486I of the Act does not apply to the Application. I thus do not propose to consider the Minister’s further submissions and the consequences of a failure to comply with s 486I of the Act.

The Amended Application

63    The orders made dismissing the application in a case are interlocutory. The principles to be applied to determine whether leave to appeal should be granted were not in dispute. In determining whether leave to appeal should be granted the Court should have regard to whether the primary judge’s decision is attended with sufficient doubt to warrant its reconsideration and, presuming the decision is wrong, whether substantial injustice would be suffered by the applicant if leave to appeal were refused: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. The test is cumulative and is not satisfied unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36; [2010] FCAFC 139 at [5].

64    As noted above, the Amended Application does not annex a draft notice of appeal. However, in the Amended Application the applicants raise one ground: that the primary judge erred in refusing the application to reopen their case. In oral submissions counsel for the applicants expanded upon this ground and explained that the alleged error on the part of the primary judge was that his Honour erred in the balancing of the factors relevant to the exercise of the discretion to grant leave to reopen a case to adduce further evidence.

65    The applicants also referred to [72] of the Interlocutory Judgment and submitted that the primary judge’s statement that some errors in interpretation would not reveal jurisdictional error incorrectly encapsulated the authorities cited by his Honour and was not supported by them. The applicants submitted that the primary judge was not required to consider whether the proposed further evidence would be sufficient to establish jurisdictional error but, rather, was required to address the issue of whether leave should be granted to adduce further evidence.

66    The applicants noted that the primary judge set out the applicable principles at [43]-[45] of the Interlocutory Judgment, including The Movie Network Channels Pty Ltd v Optus Vision Pty Limited [2009] NSWSC 132 which, in turn, referred to the decision in ASIC v Rich (2006) 235 ALR 587; [2006] NSWSC 826 (ASIC v Rich). Having regard to the factors relevant to the exercise of the discretion to reopen as set out in ASIC v Rich, the applicants conceded that the public interest in finality of litigation was an important principle; there was a lack of explanation by the applicants for their failure to take certain steps; and there was an issue of prejudice to the Minister, all of which were factors that the Court may take into account in determining an application to reopen a case. However, the applicants submitted that they sought to adduce the further evidence, namely a transcript of the Tribunal hearing, because it was important to their case. They contended that there was an element of self-representation and a dispute about whether the lawyers who had previously acted were properly instructed. They said that, having regard to those background facts, the asserted importance of the material should have, in the primary judge’s balancing of the relevant factors, weighed in favour of granting the application to adduce the further evidence.

67    The primary judge’s refusal of the applicants’ application to reopen their case to file further evidence involved the exercise of a discretion. Ultimately, in order to succeed in their appeal, the applicants would have to establish that in exercising that discretion the primary judge made an error of the type identified in House v The King [1936] 55 CLR 499 at 504-505 (House v The King). That is, they must establish that the primary judge acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, was mistaken about the facts, did not take into account a material consideration or, if it is not apparent how the primary judge reached his or her result, that it appears, based on the facts, that it is unreasonable or plainly unjust.

68    The applicants have not established any arguable basis for concluding that the primary judge’s discretion miscarried in this case. Rather, by their proposed ground of appeal the applicants seek to have this Court re-exercise the discretion.

69    As noted at [66] above, the primary judge in the Interlocutory Judgment referred to the relevant factors that guide the exercise of the discretion to reopen as follows:

[45]    It is also of assistance to note what was said in The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 (“The Movie Network Channels”). The Movie Network Channels sets out the principles which inform the exercise of the Court’s discretion to re-open, including that “the evidence must be credible, highly probative and not previously obtainable by reasonable diligence”, and citing the “interests of justice” test from Bradshaw (The Movie Network Channels at [4]). In The Movie Network Channels (at [8]), his Honour Justice Einstein relied on the judgment of his Honour Justice Austin in ASIC v Rich [2006] NSWSC 826; (2006) 235 ALR 587 (“Rich”) which lists a range of factors that are relevant to the exercise of the Court’s discretion to re-open as follows:

In ASIC v Rich (2006) 235 ALR 587 at [18] per Austin J listed the factors that he agreed were relevant to the exercise of the discretion as follows:

i.    The nature of the proceeding [See also Woolworth Ltd v Olson [2004] NSWSC 871];

ii.    Whether the occasion for calling the further evidence ought reasonably to have been foreseen;

iii.    The consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;

iv.    The extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief;

v.    The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;

vi.    The degree of relevance and the probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;

vii.    The prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;

viii.    The public interest in the conclusion of litigation [See also Hawthorn Glen Pty Ltd v Aconex Pty Limited (No 1) [2007] FCA 2010 at [48]]; and

ix.    What explanation is offered by the plaintiff for not having called the evidence in chief.

70    It was a matter for the primary judge to consider the evidence before him in light of those factors in order to determine whether it was in the interests of justice to allow the application for leave to reopen. It is clear from his Honour’s reasons that he had regard to a number of the factors identified in ASIC v Rich, including the importance of the issue on which the further evidence was sought to be adduced to the pleaded issues in the case; the probative value of the further evidence sought to be adduced; the public interest in the conclusion of the litigation; and the explanation offered by the applicants for not having called the evidence in chief. The primary judge concluded that the application should be declined. His Honour gave detailed and cogent reasons for reaching his conclusions.

71    There is no arguable basis on which it could be said that the primary judge erred in the exercise of his discretion in any of the ways identified in House v The King or, as articulated by the applicants, because his Honour failed to give sufficient prominence to one factor over others.

72    Further, the applicants’ submission that there was some form of error because his Honour mischaracterised the cases referred to at [72] of the Interlocutory Judgment does not provide an arguable basis for granting leave to appeal. First, there was no mischaracterisation of the authorities as alleged. Secondly, despite the applicants seeking to reopen their case to tender a transcript of the Tribunal hearing, they did not put that transcript before the court on the application to reopen. At the time of the hearing of the application in a case the applicants were legally represented. Despite that, as the primary judge observed, there was no detail given to “explain the merit of the matter” they wished to raise before the court and the submission made was that the applicants’ solicitors “believe[d] the ‘applicant’ ... when he said that there was an ‘error with the interpreter’” but did not know what specific aspects of the evidence were misinterpreted: Interlocutory Judgment at [74]-[76]. The primary judge identified this as an important reason why leave to reopen should be refused. That is, his Honour simply did not know what the nature of the alleged error in interpretation was and how the transcript of the Tribunal hearing would provide probative evidence going to the issues in the case.

CONCLUSION

73    For those reasons the Competency Objection should be dismissed with costs and the Amended Application should be dismissed with costs. I will make orders accordingly.

Associate:

Dated:    24 April 2019