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[2021] FCA 61
Federal Court of Australia
2021-02-04
Besanko J
Original judgment source is linked above.
Introduction 1 This is an application by the applicant in this proceeding for leave to amend his Originating application. The applicant appears in person and the application has been made orally. The respondents to the application are the Administrative Appeals Tribunal (the Tribunal), which has filed a submitting appearance, the Minister for Home Affairs (the Minister), and the Migration Agents Registration Authority (MARA). 2 Part 3 of the Migration Act 1958 (Cth) (the Act) requires migration agents to be registered. The applicant has been a registered migration agent since about 2008. On 25 October 2018, the applicant's registration as a migration agent was cancelled by MARA under s 303 of the Act. That section provides that MARA may cancel the registration of a registered migration agent if it becomes satisfied that the agent is not a person of integrity or is otherwise not a fit and proper person to give migration assistance (s 303(1)(f)) or the agent has not complied with the Code of Conduct prescribed under s 314 (s 303(1)(h)). Section 292 of the Act provides that an applicant whose registration has been cancelled under s 303 must not be registered within five years of the cancellation. 3 On 2 November 2018, the applicant made an application to the Tribunal for review of the decision by MARA to cancel his registration as a migration agent (s 306 of the Act). On the same day, the applicant applied to the Tribunal for a stay of the cancellation of his registration as a migration agent and for certain confidentiality orders. On 30 November 2018, those applications were refused by the Tribunal. As I understand it, one reason the Tribunal refused the application for a stay was that, even had a stay been granted, the applicant's registration as a migration agent was due to expire on 3 December 2018. 4 Between 2 November 2018 and 9 July 2020, various interlocutory applications were made by the applicant and determined by the Tribunal. It is unnecessary for the purposes of these reasons to set out the details. 5 On 9 July 2020, the applicant's application for review was dismissed by the Tribunal pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). That section provides as follows: (2) If a party to a proceeding before the Tribunal with respect to an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may: (a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or (b) in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding. 6 On 31 August 2020, the applicant made an application under s 42A(8A) of the AAT Act for reinstatement of his application. 7 On 28 October 2020, the Tribunal refused to reinstate the applicant's application. The relevant power is in s 42A(9) of the AAT Act and is as follows: (9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. 8 This proceeding was commenced on 7 July 2020. On that day, the applicant filed an Originating application for judicial review. In that document, the applicant states that he applies to the Court for relief under s 39B of the Judicial [sic] Act 1903 (Cth) and to review the decision of the respondent, the decisions on 17 June 2020 and 3 July 2020. The substance of the application as set out in the document is as follows: Details of claim The Applicant is aggrieved by the decisions because: 1. The first respondent, the AAT has not considered or and not aware of all the materials provided before the tribunal, and made legally unreasonable orders since 2018, to the extent, those orders are likely to favour the respondent position and diminish the applicant position in this matter; 2. That the second respondent, the minister and or its delegates of the MARA office have made a judgemental, not-impartial or subjective decision based on fabricated presumptions, which raised biased decisions. 3. In these circumstance the decisions of the Minister under s 314 of the Migration Act 1958, and the "Code of Conduct" may not infer the intention of the Australian Parliament. Grounds of application 1. Reasonable Apprehension of bias conduct and actual bias of the first respondent; 2. The actual bias; of the second respondent; including the law grounds of Wednesbury unreasonableness. 3. "Jurisdictional error". The delegate of the minister did not have jurisdiction to make the decision and there was no enough evidence or material to justify the making of the decision. Orders sought by way of interlocutory relief: 1. An order that the applicant be referred to all the purposes connected with this proceeding as CZP20. 2. An order that the name of the applicant not be published or disclosed to third parties unless authorised by the Court. 3. An order that all orders of the AAT made on and before 17 Jun 2020 be revoked or stay. 9 In the affidavit of the applicant which accompanied the application, he describes himself as "legal adviser". I asked him about this description at the first case management hearing on 28 August 2020. He said that he had "some legal background", but was not a legal practitioner. I asked him about this again at the fifth case management hearing on 22 December 2020. He told me, as I understood it, that he had a law degree from the Southern Cross University and was doing a Master of Laws at Flinders University. I should also record the fact that at the first case management hearing on 28 August 2020, I asked the applicant whether he intended to seek legal advice in this matter. At the third case management hearing in this matter on 10 November 2020, I suggested to the applicant that he might go and see JusticeNet or consider taking some legal advice so that he could present his case properly. 10 I do not propose to go through the "twists and turns" of the matter through the six case management hearings held on 28 August 2020, 11 September 2020, 10 November 2020, 14 December 2020, 22 December 2020 and 27 January 2021. The transcript of those hearings is available. Needless to say, the Originating application raised (at least) the following: (1) On what basis the applicant was seeking to proceed under a pseudonym? (2) What decision of the Minister was being challenged and on what basis? (3) What orders of the Tribunal were being challenged and on what basis? What orders of the Tribunal was the applicant seeking to have stayed? (4) What precise application is being made? 11 I attempted to address some of these issues by the order I made on 14 December 2020 which was as follows: 2. The applicant file a draft originating application or notice of appeal setting out which decisions are challenged, the legislation under which the decisions are challenged and the grounds upon which the decisions are challenged by 4:00pm on Monday, 21 December 2020. 12 By the time of the case management hearing held on 22 December 2020, the applicant had prepared a document entitled "Draft Originating application for judicial review" which set out "Details of relief thought form the Decisions of the respondents in this application [sic]". However, in the course of the case management hearing on 22 December 2020, it became apparent that that document did not contain a description of the decisions the applicant wished to challenge. I decided to give the applicant a further opportunity to produce a document and, on that date, I made the following orders: 1. The case management hearing listed on Wednesday, 23 December 2020 at 9:00 am be vacated. 2. The case management hearing be adjourned to 9:30 am on Wednesday, 27 January 2021. 3. The question of costs of the Interlocutory hearing on this day be reserved. 4. If any document is to be relied on in substitution for the draft originating application for judicial review at the case management hearing on 27 January 2021, then that document be served on the third respondent on or before midday on Friday, 22 January 2021. 13 In response to the order in the fourth paragraph, the applicant produced the following document: Draft Originating application for judicial review No. SAD99 of 2020 Federal Court of Australia District Registry: SA Division: General CZP20 Applicant ADMINISTRATIVE APPEAL TRIBUNAL AND OTHRS Respondents Details of relief thought form the Decisions of the respondents in this application: 1. An order that decision of the AAT made on 9 Jul 2020 and 28 Oct 2020 pursuant to s44 of the AAT Act is invalid, which made on the ground of an error of law, denial procedure fairness and or natural justice or an arbitrary decision: ss 39(1), 44 and 60 (2) of the Administrative Appeal Tribunal Act 1974 (Clth). 2. An order that the decision of the minister or its delegate made on 28 Oct 2018 was in bad faith or by a collateral abuse of process, and contained factual error and failed to interpret s290 of the Migration Act and failed to disclose certain documents and likely to conceal relevant documents to prevent the course of justice, which it cannot be justified in whole or in part on the ground of Wednesbury unreasonableness, and pursuant to s361 of the Migration Act, and on the authority of Hamer-Mathew v Gulabrai (1994) 35 NSWLR 92 and Lux Gulabrai v Karl Hamer-Mathew (NSWCA. 26 June 1997) (Original formatting.) 14 I heard submissions on this document on 27 January 2021. I treated this document as an oral application by the applicant for leave to amend the Draft Originating application for judicial review or to substitute the document for that application.
Paragraph 1 15 Paragraph 1 identifies two decisions of the Tribunal. They are the decisions to dismiss the applicant's application to the Tribunal for review pursuant to s 42A(2) of the AAT Act and the decision to refuse to reinstate his application pursuant to s 42A(9) of that Act. The Court has jurisdiction under s 44 of the AAT Act to deal with appeals on questions of law from those decisions and MARA did not contend otherwise before this Court. The grounds identified are error of law, denial of procedural fairness and/or natural justice, and "decision made arbitrarily". Clearly, those grounds might be particularised, or better particularised, and that was a point made by MARA. However, that complaint does not go to this Court's jurisdiction to entertain the challenges to those decisions and is a matter that can be dealt with (if appropriate) by interlocutory orders. Again, MARA did not contend otherwise. 16 There is a time limit of 28 days for appeals under s 44 of the AAT Act (s 44(2A)) and that time limit has expired. There is a power to extend time. The applicant made the point that he could not have challenged these decisions at the time he instituted this proceeding. That is true, but he could have applied to amend this proceeding within the 28 day period, or instituted a fresh proceeding within that period and he requires an extension of time. The orders which I consider appropriate are set out below.
Paragraph 2 17 The orders sought in paragraph 2 relate to the decision made under s 303(1) of the Act to cancel the applicant's registration as a migration agent. That decision was made by MARA rather than the Minister, but for present purposes that is not material. 18 MARA submits that this Court does not have jurisdiction to entertain a challenge to its decision made on 25 October 2018 because that decision is a migration decision within s 5 of the Act and this Court's jurisdiction is limited to particular types of migration decisions of which the decision made by MARA on 25 October 2018 is not one. I consider that that contention is correct. 19 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. 20 A non-privative clause decision is defined as having the meaning given by subs 474(6) of the Act. Section 474(4) and (6) of the Act are in the following terms: (4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision: Decisions that are not privative clause decisions Item Provision Subject matter of provision 1 section 213 Liability for the costs of removal or deportation 2 section 217 Conveyance of removees 3 section 218 Conveyance of deportees etc. 4 section 222 Orders restraining non-citizens from disposing of property 5 section 223 Valuables of detained non-citizens 6 section 224 Dealing with seized valuables 7 section 252 Searches of persons 8 section 259 Detention of vessels for search 9 section 260 Detention of vessels/dealing with detained vessels 10 section 261 Disposal of certain vessels 11 Division 14 of Part 2 Recovery of costs 12 section 269 Taking of securities 13 section 272 Migrant centres 14 section 273 Detention centres 15 Part 3 Migration agents registration scheme 16 Part 4 Court orders about reparation 23 Division 7 of Part 5 Part-5 reviewable decisions: offences 28 Division 6 of Part 7 Part-7 reviewable decisions: offences 31 regulation 5.35 Medical treatment of persons in detention
(6) A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non-privative clause decision. 21 Item 15 in the table in s 474(4) refers to Part 3 of the Act and the Migration agents registration scheme. Section 303 is within Part 3 of the Act. 22 Section 476A(1) of the Act 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. Note: An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975: (a) a privative clause decision; (b) a purported privative clause decision; (c) an AAT Act migration decision. In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a), (b) or (c) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975. The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non-privative clause decisions. 23 MARA's decision is a migration decision, but does not fall within paragraphs (a), (b), (c) or (d) of s 476A(1). In those circumstances, this Court does not have jurisdiction to entertain a challenge to MARA's decision dated 25 October 2018. 24 Whether another court has jurisdiction to entertain a challenge to MARA's decision was not argued before me and, in any event, is a matter for that Court should an application be brought before it. 25 I would not allow the amendment insofar as it raises paragraph 2 in the draft document.
Conclusion 26 In my opinion, the appropriate order is as follows: the applicant has leave to file and serve within seven days such documents as are necessary under the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011 (Cth) (see Division 33.2 in particular) to apply for an extension of time within which to start an appeal under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) against decisions made by the Tribunal on 9 July 2020 and 28 October 2020 respectively. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.
CZP20
Administrative Appeals Tribunal
(1994) 35 NSWLR 92