FEDERAL COURT OF AUSTRALIA

Chauque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 89

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s objection to competency is upheld.

2.    The applicant’s originating application for an extension of time is dismissed.

3.    The applicant is to pay the respondent’s costs of and incidental to the originating application and the respondent’s notice of objection to competency.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    The applicant is presently a detainee of Yongah Hill Immigration Detention Centre in the State of Western Australia.

2    By application filed on 25 November 2019, the applicant sought an extension of time in which to lodge an application for judicial review of a decision of the respondent (the Minister) made under s 65 of the Migration Act 1958 (Cth) (Act) refusing to grant the applicant a partner (temporary) and partner (residence) visa (visa refusal decision). By the application for review, the applicant seeks an order from this Court that the visa refusal decision be quashed. The application for an extension of time was supported by two affidavits of the applicant sworn 19 November 2019. One of the affidavits exhibited the decision record for the visa refusal decision which had been made more than 4 years ago on 12 October 2015.

3    On 23 January 2020, the Minister filed a notice of objection to competency of the application pursuant to rule 31.24(1) of the Federal Court Rules 2011 (Cth), seeking the dismissal of the primary application. The notice is supported by two affidavits of Mr Andrew Cunynghame, a solicitor employed by Sparke Helmore representing the Minister. The first, affirmed 31 January 2020, exhibited an email sent by Sparke Helmore on 23 January 2020 to the applicant’s email address stated in his application, inviting the applicant to discontinue these proceedings because the Court lacked jurisdiction to hear the application. The second, affirmed 6 February 2020, exhibited:

(a)    a copy of a letter from the Minister’s delegate to the applicant dated 12 October 2015 notifying the applicant of the visa refusal decision in accordance with s 66 of the Act;

(b)    a copy of an application to the Administrative Appeals Tribunal (Tribunal) made by the applicant on 29 January 2016 seeking review of the visa refusal decision; and

(c)    a copy of the decision of the Tribunal dated 17 March 2016 dismissing the application for review on the basis that it did not have jurisdiction to review the matter (as the applicant had not paid the prescribed fees within the prescribed time and no determination had been made that the fee should be reduced).

4    For the reasons that follow, I uphold the objection to competency and dismiss the application for an extension of time.

Background matters

5    The background to the applicant’s application is as follows.

6    On 15 November 2019, the applicant received a notice from the Australian Border Force advising him that arrangements had been made for his removal from Australia pursuant to s 198(6) of the Act. The notice stated that it was anticipated that the applicant would be removed from Australia on 27 November 2019.

7    I infer that the notice from the Australian Border Force prompted the applicant to file the application for an extension of time in which to lodge an application for review of the visa refusal decision. The application is dated 19 November 2019 but was not filed until 25 November 2019.

8    On 5 December 2019, the applicant also filed an interlocutory application seeking to restrain the Minister from removing him from Australia until the application for an extension of time had been finalised. On 9 December 2019, I heard and dismissed that interlocutory application. My reasons are published as Chauque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2100.

9    As already noted, on 23 January 2020 the Minister filed a notice of objection to competency to the application for an extension of time. The parties came before me for case management on 31 January 2020. At that time, I listed the Minister’s objection for hearing today. The Minister subsequently filed the affidavits referred to above, together with an outline of submissions.

Consideration of objection

10    Rule 31.24(5) provides that, if the Court decides that an application is not competent, the application is dismissed.

11    Section 476A(1) of the Act confers and confines the Federal Court’s original jurisdiction to hear and determine applications for judicial review in relation to “migration decisions”. Section 476A(1) is in the following terms:

(1)     Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

    (a)     the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or

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

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

    (d)     the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

12    I accept the Minister’s submission that the visa refusal decision that is sought to be reviewed by the primary application is a “migration decision” for the purpose of s 476A. That expression is defined in s 5 to include a privative clause decision, which in turn is defined in s 474. Subject to exceptions that are not presently relevant, a privative clause decision is a decision of an administrative character made under the Act, including a decision refusing to grant a visa (see s 474(3)(b)). The visa refusal decision is such a decision.

13    Under s 476A, the Federal Court’s jurisdiction in relation to migration decisions is confined to the decisions specified in subsection (1). That subsection does not include decisions made by the Minister under s 65 of the Act. Accordingly, the visa refusal decision does not fall within the original jurisdiction of this Court as conferred and confined by s 476A of the Act. Any application to review the visa refusal decision is, accordingly, incompetent.

14    It also follows that the originating application for an extension of time in which to bring an application for judicial review of the visa refusal decision is both futile and incompetent (given that the underlying application sought to be brought is incompetent).

Conclusion

15    Accordingly, I will dismiss the originating application and order the applicant to pay the Minister’s costs of the originating application and the objection to competency.

Associate:

Dated:    7 February 2020