BJT21 v Minister for Home Affairs

1. Proceeding NSD567/2021 be remitted to the Federal Circuit Court of Australia for determination of the applicant's application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth).
2. Proceeding NSD495/2021 be adjourned to a date to be fixed.
3. The parties have liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 On 15 January 2020, the applicant was sentenced to a period of imprisonment of 18 months in the Magistrates Court of Victoria. On 11 March 2020, a delegate of the first respondent (the Minister) cancelled the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth). Under that provision, the Minister "must cancel a visa" if, relevantly, the holder has been sentenced to a term of imprisonment of 12 months or more and is serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of a State. 2 On 11 June 2020, the applicant was successful in an appeal to the County Court of Victoria against his sentence. He was resentenced to a term of 10 months' imprisonment. 3 The applicant made representations as to the revocation of the delegate's cancellation decision. On 4 December 2020, the delegate declined, under s 501CA, to revoke the decision. The applicant then applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision. 4 The applicant's submissions before the Tribunal included that the decision to cancel the applicant's visa under s 501(3A) of the Act should be revoked because the applicant did not fall within the grounds for mandatory cancellation under that provision, having ultimately been sentenced to less than 12 months' imprisonment. The Tribunal decided to affirm the delegate's decision, finding, inter alia, that the applicant did not pass the character test for other reasons. 5 The applicant has commenced an application for review of the Tribunal's decision in the Federal Court of Australia. His first ground of review asserts that the decision of the delegate of 11 March 2020 to cancel his visa pursuant to s 501(3A) of the Act was of no effect because a statutory pre-condition for the exercise of that power - that the visa holder have been sentenced to a term of imprisonment of 12 months or more - was not satisfied. 6 The jurisdiction of the Federal Court in relation to "migration decisions" (as defined in ss 5, 474 and 474A of the Act) is limited to that conferred under s 476A. The applicant recognised that there is substantial doubt as to whether the Federal Court has jurisdiction to review a decision made by a delegate of the Minister under s 501(3A) of the Act. In an attempt to deal with the jurisdictional issue, the applicant applied to the Federal Circuit Court for review of the delegate's decision, relying on the same first ground of the application before the Federal Court. 7 Pursuant to s 476, the Federal Circuit Court has jurisdiction to review a decision of a delegate made under s 501(3A) of the Act. However, under s 477(1), an application to the Federal Circuit Court for a remedy in the exercise of the jurisdiction under s 476 must be made within 35 days of the date of the migration decision. Accordingly, the applicant also applied to the Federal Circuit Court for an extension of time pursuant to s 477(2). In addition, the applicant applied for the transfer of the proceeding to the Federal Court so that it could be heard together with the proceeding that had already been commenced in the Federal Court. 8 The application for an extension of time and transfer was listed before a duty judge in the Federal Circuit Court on 15 June 2021. The matter appears to have been listed with some urgency because the hearing of the Federal Court proceeding had been listed for 17 June 2021. 9 Both parties submitted to the duty judge that the application for an extension of time was required to be decided by the Federal Circuit Court before an order for transfer of the proceeding to the Federal Court could be made. His Honour's attention was drawn to judgments of the Federal Court in Hay v Minister for Immigration and Border Protection [2018] FCA 124 at [35]-[36] and Broadbent v Minister for Immigration and Border Protection [2018] FCA 173 at [15]. Those authorities held that jurisdiction is not conferred on the Federal Court to consider an application to extend time under s 477(2) in proceedings transferred to it by the Federal Circuit Court. In Broadbent, the matter was remitted to the Federal Circuit Court to determine the question of extension of time. In Hay, it was held that the Federal Court would have had jurisdiction to review a decision under s 501(3A) if an extension of time had been granted by the Federal Circuit Court and those proceedings had then been transferred to the Federal Court. 10 I am informed by the parties that the duty judge declined to deal with the question of extension of time. His Honour did not produce written reasons, but I am informed that he indicated orally that he declined to follow Hay and Broadbent because he considered adequate reasons had not been provided in those cases. His Honour expressed a view that the Federal Court did have jurisdiction under s 476A(1)(a) to determine the question of extension of time. His Honour made an order that: The proceedings are transferred to the Federal Court of Australia under s 39 of the Federal Circuit Court of Australia Act 1999 (Cth) which includes the pending proceeding for an extension of time under s 477 of the Migration Act 1958 (Cth). 11 The observations in both Hay and Broadbent that the jurisdiction of the Federal Court under s 476A(1)(a) does not extend to determination of an application for an extension of time under s 477(2) of the Act are, at least, considered obiter dicta observations. There has been no argument before me as to whether a judge of the Federal Circuit Court should apply obiter dicta observations made by a single judge of the Federal Court. However, as a judge of the Federal Court, I would not lightly decline to follow the considered obiter dicta observations of other single judges of the Federal Court: see Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2019) 270 FCR 513 at [108]. 12 I note that in a third judgment, FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474, Perry J held at [6] that s 477(2) of the Act gives the Federal Circuit Court alone the power to extend time in respect of applications commenced in the original jurisdiction of that Court under s 476 and that the Federal Court's power to extend time under s 477A(2) applies only to applications commenced in its original jurisdiction pursuant to ss 476A(1)(b) or (c) of the Act. In that case, her Honour noted that she had made orders declaring that the Federal Court did not have jurisdiction to decide the application for an extension of time and had remitted the matter for determination by the Federal Circuit Court. 13 The parties do not dispute the correctness of the observations made in Hay, Broadbent and FAF18. I consider that those observations are clearly correct. 14 The parties were in agreement that the matter ought to be remitted to the Federal Circuit Court for determination pursuant to s 477(2) of the Act of the application for an extension of time. I consider that to be the only appropriate course. 15 It is unfortunate that the duty judge in the Federal Circuit Court considered that he was free to simply decline to follow the clear judgments of two judges of the Federal Court. It is unfortunate because, first, the time set aside for the hearing of the application for review by the Federal Court has been wasted; second, the time of another Federal Circuit Court judge will now have to be taken up with deciding an application that should already have been decided; and, third, the applicant will remain in detention while the proceedings are delayed through no fault of his own. 16 In view of the fact that the applicant remains in detention, I respectfully recommend that the Federal Circuit Court expedite the hearing of the application for an extension of time. 17 I will order that the matter be remitted to the Federal Circuit Court for determination of the applicant's application for an extension of time. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.