DBA16 v Minister for Home Affairs

1. The applicant is to file and serve submissions not exceeding ten pages by 4.00pm, 11 October 2018.
2. The first respondent is to file and serve submissions not exceeding ten pages by 4.00pm, 18 October 2018.
3. The interlocutory application filed 8 October 2018 is dismissed.
4. Liberty to apply.
5. The costs of the interlocutory application are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHEELAHAN J: 1 On 27 September 2018 the Federal Circuit Court constituted by Her Honour Judge Kirton refused an application by the applicant under s 477(2) of the Migration Act 1958 (Cth) for an extension of time within which to bring an application to the Federal Circuit Court for a remedy under s 476 of the Act: DBA16 v Minister for Home Affairs & Anor [2018] FCCA 2761. By operation of s 476A(3) of the Migration Act no appeal lies to the Federal Court from an order of the Federal Circuit Court refusing an application for an extension of time under s 477(2). 2 The applicant has commenced this proceeding by an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) seeking a writ of certiorari to quash the decision and orders of the Federal Circuit Court on the ground of jurisdictional error, and a writ of mandamus directing the Federal Circuit Court to determine the applicant's application for an extension of time according to law. 3 Before me as general duty judge is an urgent interlocutory application by the applicant filed 8 October 2018 seeking an order that the final hearing of this proceeding be expedited and listed at the Court's earliest convenience and before 11 October 2018. During the course of argument counsel for the applicant withdrew the application to the extent that the applicant sought a listing before 11 October 2018, and the application proceeded as an application that the proceeding be expedited and listed at the Court's earliest convenience. The grounds on which the application for expedition is made are explained below. 4 The applicant applied to the Federal Circuit Court for an extension of time to bring a substantive application that had been filed on 11 September 2018 seeking relief in the original jurisdiction of that Court under s 476 of the Migration Act. By that substantive application, the applicant sought relief in connection with a decision of the Immigration Assessment Authority (IAA) made 15 September 2016 which had affirmed a decision of a delegate of the Minister dated 20 July 2016 to refuse to grant the applicant a Safe Haven Enterprise Visa. The ground for the substantive application was that the decision of the IAA was affected by jurisdictional error because the purported appointment of a port as a proclaimed port in respect of an area of waters within the Territory of Ashmore and Cartier Islands by notice published in the Commonwealth of Australia Gazette no GN 3 on 23 January 2002 was invalid. The invalidity of the proclamation is alleged to have consequences including that the IAA did not have jurisdiction, power, or authority to conduct a review of the delegate's decision. 5 The applicant claims that the facts of his case are materially indistinguishable from those the subject of the Full Court's decision in DBB16 v Minister for Immigration and Border Protection (DBB16) made 6 August 2018 (Perram, Wigney and Lee JJ), the reasons for which have not yet been published, and from those the subject of decisions of the Federal Circuit Court in DBD16 v Minister for Immigration and Border Protection [2018] FCCA 1801 (Judge Smith), and DBC16 v Minister for Immigration and Border Protection [2018] FCCA 1802 (Judge Smith). In DBB16 the Full Court made declarations which included a declaration that the purported appointment referred to in [4] above is invalid. 6 Before the Federal Circuit Court the Minister resisted the application for an extension of time on grounds including delay, and in reliance upon an Anshun estoppel. The Minister argued that an Anshun estoppel arose because the applicant had previously brought a proceeding seeking judicial review of the relevant decision of the IAA and was unsuccessful, albeit not by reference to the ground now advanced, namely the invalidity of the purported appointment of a port: DBA16 v Minister for Immigration & Anor [2017] FCCA 320 (Judge Driver). An appeal from that decision was dismissed: DBA16 v Minister for Immigration & Anor [2017] FCA 1580 (Lee J). Material to Her Honour Judge Kirton's decision refusing the application for an extension of time was that her Honour considered that the new ground relating to the invalid proclamation of a port was hopeless, and bound to fail because it would inevitably be met with a successful claim for Anshun estoppel by the Minister. 7 The parties agreed that there is currently before the Senate of the Commonwealth Parliament a Bill titled Migration (Validation of Port Appointment) Bill 2018. If the Bill is enacted, the purpose of the legislation will be to alter the purported appointment referred to in [4] above so as to make it valid, and its enactment may therefore affect retrospectively the applicant's claim that the purported appointment of a proclaimed port is invalid. In a letter to the Court dated 8 October 2018 the applicant's solicitors stated that the Bill passed the House of Representatives on 16 August 2018, and on that day was then introduced into the Senate. The applicant's solicitors stated that the Bill was then referred to the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 12 September 2018. The letter continued - The future of the passage of the Bill is uncertain. The Senate is next due to sit on 15-18 October, and 22-26 October 2018. The Bill could be passed at any time. The effect of the foregoing is that unless that Appellant [sic] secures a judgment in his favour on the ground of review claimed in the Federal Circuit Court application before the passage of the Bill by the Senate, his rights will be lost forever. As such, we ask that the matter be listed at the Court's earliest convenience and before 11 October 2018 if there is that possibility. 8 The question whether a court should take account of proposed legislative amendments in deciding whether to exercise a discretionary power to adjourn or to expedite the hearing of a proceeding has been considered in a number of cases including: Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 WLR 213 (Upjohn J); R v Whiteway; Ex parte Stephenson [1961] VR 168 at 171 (Dean J); Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 (Kirby P, Mahoney and McHugh JJA); Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 (Meggitt) (Mason P, Sheller and Beazley JJA); Jupp v Computer Power Group Ltd (1994) 122 ALR 711 (Jupp) (Gray J); Warramunda Village Inc v Pryde (2002) 116 FCR 58 at [54]-[63] (Warramunda) (Lee, Finkelstein and Gyles JJ); Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 973 (Bennett J); and Esso Australia Resources Pty Ltd v Federal Commissioner of Taxation (No 1) (2011) 196 FCR 560 (Esso) (Edmonds and Perram JJ). 9 In Esso the Full Court refused an application by the Commissioner of Taxation to adjourn the hearing of an appeal. The Commissioner argued that a Bill that was before the Senate proposed amendments to the Petroleum Resource Rent Tax Assessment Act 1987 (Cth) with retrospective effect which, if enacted, would render the appeal pointless. The Full Court did not accept that the appeal would be pointless even if the proposed amendments were enacted, because a determination of the appeal would be relevant to the question of costs. There were two further features of the Full Court's reasons that are relevant to the present application. First, the Full Court took into account at [13] that it was by no means obvious that the Bill would be guaranteed a passage through both Houses of Parliament because the government did not control either house. In the present case, the government does not currently control the Senate, and therefore the statement in the applicant's solicitors' letter to the Court that, "[t]he future of the passage of the Bill is uncertain" would appear to be a fair observation. 10 Second, the Full Court stated at [15] that, "there is much to be said for the view that it is not appropriate for a court to take into account as a controlling factor the prospect of a substantive legislative amendment which would accrue for the benefit of one party." This observation reflected the language of Mason P in Meggitt at 529-530. In my view, this consideration may also be relevant to an application for expedition where the ground for the application is to avoid the operation of proposed amendments to legislation, which is the primary ground on which the present application for expedition is made. 11 In Jupp, Gray J, sitting in the Industrial Relations Court of Australia, identified at 713-715 a number of factors that militated against making an order in that case for an expedited trial where amending legislation with retrospective operation had been foreshadowed by a minister by a media release - Even on the assumption that parliament does legislate as the minister and the media contact have represented, the question still arises whether, in a case such as this, the court should prefer the interests of the applicant to those of the respondent. If the court were minded to grant applications such as that brought on this notice of motion it would find itself in an impossible position. There is no basis on which to choose between the interests of the applicants and the respondents. Still less is there any basis on which to choose between the application of one applicant and those of others. True it is that this applicant is the one who has brought his motion before the court seeking a speedy trial. If he were granted it, there is no reason why every other applicant who suspected that he or she might be affected by the proposed amendments should not apply also. As a matter of physical resources, the court could not deal with all of the applications which might conceivably be affected by the proposed amendments and give judgment in them all prior to 30 June. If it cannot deal with all, there are sound reasons why it should not deal with any. The granting of the application to expedite the trial would be an invitation to the respondent to delay and perhaps to filibuster. Further, it would put pressure on the court to give a quick, rather than a properly considered, judgment. It would very likely require the re-organisation of the business of the court. If a judge could not be found who was free to deal with the application, then other matters would have to be unfixed, and this matter fixed for trial in preference to those. Again, the court has no basis on which it can decide as between the interests of the affected parties. In the ordinary handling of the business of the court, some order is required. 12 At 716 Gray J concluded - There is no distinction drawn in those authorities between applications by respondents and applications by applicants for adjournments. In either case, the courts have refused to adjourn cases to enable either party to take advantage of proposed changes in the law. … … The matter should be decided, in my view, by the application of the general principle that courts apply the law as it is. The application of that principle dictates that no special step be taken to avoid the proposed amendments. The court should not bring a case forward to assist an applicant any more than it would delay it to assist a respondent. 13 In Warramunda at 74-75 [62]-[63] Finkelstein J considered whether it was apt for Gray J to invoke the principle that courts should apply the law as it is. Finkelstein J considered that statements to this effect in the cases referred to the law as it is at the date originating process was filed, so that (at 75 [63]) - It follows that a court will not fall into error for bringing a case on for hearing earlier than the appointed day, provided it can be heard without injustice to any party to the proceeding, or to parties in other litigation that may also have a just claim on the judge's time. 14 I observe that this passage is concerned with the question of the identification of error, and does not suggest any guidance of general application that proceedings should be brought forward for hearing in circumstances where there may be legislative amendments that might affect the outcome of the proceeding. The other members of the Court, Lee J and Gyles J, delivered separate reasons and did not address the correctness of the reasons of Gray J in Jupp. 15 In this case, the applicant persuaded the Federal Circuit Court to hear and determine expeditiously his application for an extension of time under s 477(2) of the Migration Act. Her Honour Judge Kirton heard the application on 13 September 2018, reserved for a short period, and on 27 September 2018 gave considered reasons for refusing the application for an extension of time. The applicant relied on the expedited hearing of the application before the Federal Circuit Court as an advantage which the applicant had obtained, the benefit of which should not now be lost in circumstances where the applicant's allegation in this Court is a failure of the Federal Circuit Court to exercise jurisdiction. 16 In my view no special order should be made by me in the circumstances of this case to have the proceeding expedited and listed for hearing at the Court's earliest convenience. To do so would be to act at least to some degree on speculation as to the likely progress of a Bill through the Commonwealth Parliament and whether the Bill, in terms enacted, would affect the applicant's rights. 17 Further, I take into account that there are a number steps that would have to be achieved before the applicant would be in a position to establish jurisdictional error on behalf of the IAA, which was the claim in the substantive application to the Federal Circuit Court. Those steps include: establishing that the Federal Circuit Court fell into jurisdictional error in refusing the application for an extension of time; persuading the Federal Circuit Court on any remitter to extend time; and if time were extended, successfully meeting the Minister's claim that there is an Anshun estoppel. I do not express any view about the merits of the applicant's claim before this court, but merely observe that at this point in time the applicant has a number of hurdles to overcome in order to obtain the substantive remedy that was sought in the Federal Circuit Court. 18 In the circumstances of this case the question of listing the proceeding for hearing should be considered in the ordinary handling of the business of the Court, which was one of the considerations identified by Gray J in Jupp at 714. In this court, the ordinary handling of business involves reference of the case to the National Operations Registrar, and allocation to a docket Judge where the question of listing can be considered in an ordered manner. 19 I have taken into account the applicant's argument that he should not lose the advantage of expedition that he achieved in the Federal Circuit Court. However, while that argument was attractively put by counsel for the applicant, I do not give it great weight, because this is a fresh proceeding in the original jurisdiction of this Court and, as I have indicated, the question of listing the proceeding for hearing should be addressed in the ordinary handling of business of this Court. 20 The proceeding shall be referred today to the National Operations Registrar for allocation to a judge's docket. I will hear the parties on the question of orders for the filing and service of written submissions in preparation for a hearing of the proceeding. The interlocutory application is otherwise dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.