BYN18 v Minister for Home Affairs

1. The proceeding is dismissed.
2. The Applicant is to pay the costs of the First Respondent, either as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FLICK J: 1 The Applicant in the present proceeding, identified by the pseudonym BYN18, was born in 1989 in Tehran, Iran. 2 In March 2013 he was granted a Class XA Subclass 866 Protection visa. 3 In August 2016, he was convicted in the Local Court of New South Wales of Common Assault (DV) and Stalk/Intimidate intend Fear Physical Harm (Domestic). He was sentenced to a term of imprisonment of 12 months. In March 2017, he was convicted of Stalk Another Person in the Magistrates Court of Victoria and sentenced to imprisonment of seven months. 4 On 4 April 2017, he was notified by the Department of Immigration and Border Protection (as it was then) that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the "Migration Act"). A delegate of the Minister had formed the view that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and did not pass the character test. In the notification letter, the Applicant was then invited "to make representations to the Minister about revoking the decision to cancel your visa" and informed "any representations MUST be made within 28 days after you are taken to have received this notice" (emphasis in original). 5 Notwithstanding the express reference to the time within which a representation could be made, a response was not provided until January 2018. 6 On 21 March 2018, the Department (now the Department of Home Affairs) advised the Applicant that it had "determined that your representations were not made within the prescribed time frame" and therefore that "the Minister cannot consider revoking the decision to cancel your visa". 7 On 17 April 2018, the Applicant commenced a proceeding in the Federal Circuit Court of Australia seeking an extension of time under s 477 of the Migration Act. The jurisdiction which was invoked was that purportedly conferred on that Court by s 476 of the Migration Act. 8 Before the Federal Circuit Court it was common ground that no challenge was made to the actual decision to cancel the visa under s 501(3A); the challenge which was mounted was to the notification of that decision. In essence, the Applicant contended that the "person who purported to give the Notice to the Applicant … did not hold a delegation from the Respondent [Minister] to carry out his duty under the Migration Act 1958 s 501CA(3)". If successful in that challenge, the Applicant would have - so the argument ran - 28 days from whatever date a new notification was given in which to make representations. 9 In December 2018, a Judge of the Federal Circuit Court, in an ex tempore judgment, dismissed the proceeding: BYN18 v Minister for Home Affairs [2018] FCCA 3838. In doing so, the Judge first addressed the question as to whether the Court had jurisdiction and resolved that question adversely to the Applicant as follows (without alteration): [7] I accept the submissions of the respondent that that this Court has no jurisdiction as the notification is not a migration decision within this Court's jurisdiction. The notification is a procedural step and is not of an administrative nature so as to give rise to a migration decision enlivening this Court's jurisdiction. Although unnecessary to do so, the Judge noted that the application to that Court was filed 333 days outside the time permitted under s 477 of the Migration Act and went on to conclude as follows that the argument sought to be agitated by the Applicant as to the absence of delegation lacked sufficient merit to warrant an extension of time being granted: Proposed ground 1 [17] In the circumstances, proposed ground 1 lacks sufficient merit to warrant an extension of time under s 477 of the Act as being necessary in the interests of the administration of justice. [18] When the unsatisfactory explanation for the delay, which was substantial, is taken together with the insufficient merit, the Court is not satisfied that there is a sufficiently arguable case to warrant an extension of time under s 477 of the Act. But for the finding of there being no jurisdiction, the Court would otherwise have dismissed the application under s 477 of the Act. 10 Later in December 2018, the Applicant then filed in this Court an Originating application for relief under section 39B Judiciary Act 1903 (Cth). An Amended Originating application for relief under section 39B Judiciary Act 1903 ("Amended Originating Application") was then filed in February 2019 in accordance with leave granted by this Court. Although that Amended Originating Application does not specifically identify the December 2018 decision of the Federal Circuit Court as the decision sought to be reviewed, it was common ground that that was the decision sought to be reviewed. Orders were sought from this Court setting aside the Order of the Federal Circuit Court and a "direction that the [Minister] properly notify the Applicant of his decision to cancel the Applicant's visa". 11 It is concluded that the Amended Originating Application is to be dismissed with costs.