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.