Gill v Federal Circuit Court of Australia

REASONS FOR JUDGMENT 1 The reasons that follow are edited reasons given orally on 10 March 2015 for an order dismissing this appeal. 2 On 15 February 2012, the applicant applied to the then Department of Immigration and Citizenship for a student (class TU) visa. On 16 April 2012, a delegate of the then Minister for Immigration and Citizenship refused to grant that visa. That was because the delegate was not satisfied that the applicant satisfied the prescribed criteria for the visa. On 23 April 2012, the applicant applied to the Migration Review Tribunal to review the delegate's decision. In late June, the applicant appeared before the Tribunal to give evidence and present arguments. On 18 July 2012, the Tribunal made its decision and affirmed the decision of the delegate not to grant the applicant the visa. In that regard, the Tribunal made a number of findings, as follows. 3 First, the Tribunal found that the visa application was made in Australia, and so the applicant was required to satisfy cl 572.211 of Sch 2 to the Migration Regulations 1994 (Cth). Secondly, at the time of application, the applicant was not the holder of a substantive visa of the type described in Sch 2 cl 572.211(2), (4) or (6) of Sch 2 to the Regulations. Thirdly, the applicant's current visa application was made on 15 February 2012. Fourthly, the applicant's last substantive visa ceased to be in effect on 8 December 2011. Fifthly, in order to meet cl 572.211(3)(c), the applicant was required to have lodged a current visa application within 28 days of the latter of either the day when the last visa ceased to be in effect, or, if the last visa was cancelled and the Tribunal set aside and substituted the cancellation decision or the Minister's decision not to revoke the cancellation, the day when the applicant was taken to be notified of the Tribunal's decision under ss 368C, 368D and 379C of the Migration Act 1958 (Cth). The Court notes cl 572.211(3)(c)(ii)(B) refers to s 368C, although this provision was repealed by the Migration Legislation Amendment Act (No 1) 2008 (Cth). In any event, the date the last visa ceased to be in effect was the relevant date in the applicant's circumstances. 4 The Tribunal found that the application was not made within 28 days after the last substantive visa ceased to be in effect, and, as a result, found the applicant did not meet the requirements of cl 572.211(3)(c) of Sch 2 to the Regulations. I understand from hearing the applicant today he says he received misleading information about those matters. The facts remain as they were, however, and the decision of the Tribunal speaks for itself. 5 It appears that the applicant then lodged a request for ministerial intervention on 13 August 2012, I would infer because he considered he received misleading information as to his visa application. 6 By letter dated 19 May 2014 signed by the Assistant Director, Ministerial Intervention at the Department of Immigration and Border Protection, the applicant was notified of the outcome of his request for ministerial intervention under s 351 of the Act. Under s 351, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under s 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. In the letter to the applicant of 19 May 2014, it was stated: While section 351 of the Act provides the Minister with the power to substitute a decision of the Migration Review Tribunal with a more favourable decision, it is a discretionary non-compellable power. This means that the Minister is not obliged to intervene in your case. 7 The letter then stated: The Assistant Minister for Immigration and Border Protection, Senator the Hon Michaelia Cash has personally considered your case and has decided that it would not be in the public interest to intervene. The Assistant Minister has not exercised their power under section 351 of the Act in your case. 8 In those circumstances, on 5 June 2014, the applicant filed an application seeking judicial review of the Tribunal's decision in the Federal Circuit Court, and, to that end, sought an extension of time pursuant to s 477 of the Act. However, on 26 August 2014, that Court refused the applicant's application for an extension of time to seek judicial review of the Tribunal's decision of 18 July 2012. The Court below also refused the applicant's application for an adjournment and ordered he pay the cost of the proceeding fixed in a sum of $1,331. The Federal Circuit Court subsequently provided ex tempore reasons for judgment which may be found in Gill v Minister for Immigration & Border Protection [2014] FCCA 1929. The Court explained as follows. 9 Firstly, that s 477(1) of the Act requires that any application for judicial review be made within 35 days of the Tribunal's decision; s 477(2), however, provides the Court may extend that period if it considers it is in the interests of the administration of justice to do so. Secondly, the applicant filed his application on 5 June 2014, somewhere in the order of 600 days out of time. Thirdly, the applicant's explanation for the delay was that he had sought ministerial intervention, and it had taken time to receive a response. Fourthly, it is well established that an applicant's conduct in seeking ministerial intervention under the Act is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the Tribunal on grounds that may have been available to him. 10 Further, there was no evidence before the Court of the applicant seeking judicial review in accordance with the Act in the relevant timeframes. Additionally, in relation to the substantive application for judicial review, no jurisdictional error was apparent on the face of the Tribunal's record, and none had been identified by the applicant. In that regard, the Court below noted that the applicant applied for a temporary student visa on 15 February 2012. The Court below identified that cl 572.211 of Sch 2 to the Regulations required him to be the holder of a substantive visa of the type I have previously mentioned, and that, as explained above, ultimately the application was not made within 28 days after the last substantive visa held by the applicant ceased. 11 It was noted by the Tribunal that it had no discretion to grant the applicant the visa. In those circumstances, the Court below was not satisfied that the application for judicial review had any prospect of success. It said that if an extension of time was granted, it was likely that the applicant's proceeding would be dismissed pursuant to R 44.12 of the Federal Circuit Court Rules 2009 (Cth) on the basis that the application did not raise an arguable case for the relief claimed. Coupled with the applicant's inadequate explanation for his delay, the Court below said it would not be in the interests of justice to grant a further extension to the applicant. 12 The application to this Court seeks relief under s 39B of the Judiciary Act 1903 (Cth), and it is capable of being construed as both a challenge to the decision of the Federal Circuit Court, as well as to the failure of the Minister to intervene under s 351 of the Act. So far as the application is to be taken as a challenge to the decision of the Federal Circuit Court, it is accepted that this Court has jurisdiction to consider the application, including the challenge to the refusal to grant an extension of time within which to seek judicial review. I refer in that regard to the decision in Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [11]. 13 In this proceeding, the applicant has not filed a written outline of submissions, despite orders being made on 5 December 2014 for the applicant to do so no later than 10 business days before the hearing. However, the applicant did attend today and has made some oral submissions. As to the Federal Circuit Court decision, the originating application states: I applied appeal decision of Ministerial intervention to The Federal Circuit Court of Australia on 05 June 2014 which was dismissed on 26 August 2014 without considering Facts of natural justice and without considering Migration Regulation (1958) (Cth) & Judiciary Act (1903) (Cth). Even they did not send me green court booklet. 14 The applicant has not particularised the specific relief he is seeking in relation to the Court's decision under s 39B. In any event, in my view, and I accept the Minister's submission in this regard, the applicant's application reveals no error in the reasons of the Court below. The Court below correctly identified the time limits on applications to the Court that the Tribunal had also explained. The Court below invited the applicant to make statements in support of his explanation for the delay, and ultimately considered that explanation and the prospects of success of the substantive application. In my view, the Court below was correct to conclude that the applicant's application did not have any prospects of success for the reasons given by her Honour. No error is shown in the reasons of the Court below in refusing to grant an extension of time. The applicant's originating application therefore reveals no error sufficient to enliven this Court's jurisdiction under s 39B(1) of the Judiciary Act, and should be dismissed. 15 So far as the application before this Court involves a challenge to the refusal of the Minister to intervene, I consider it should also be dismissed. In this regard, the applicant's originating application also states: I think I am become a victim of a procedure fairness issue/matter here as Ministerial Intervention has an error in my decision. This is not fair by any department while making a decision and department or Tribunal should be fair to make it decision and must look into all necessary aspects in application. 16 In his affidavit supporting the application, the applicant further states: I demand an order from FC - that the decision of the Migration Intervention or Minister of Immigration and Citizenship be quashed. I understand the applicant's reference to "FC" to mean this Court. 17 As I have mentioned above, the applicant has not filed any further outline of submissions on this point, and today has not made any substantive submissions about it. As a matter of the formalities, pursuant to s 476A of the Act, this Court does not have jurisdiction "in relation to" migration decisions. Under s 5, a migration decision means, first, a privative clause decision, or a purported privative clause decision, or a non-privative clause decision. The Minister submits that a decision of the Minister not to exercise or not to consider the exercise of the Minister's power under s 351 is a privative clause decision within the meaning of s 474(2) of the Act, and so this court does not have jurisdiction in relation to the original application to the extent it relates to the decision not to exercise the power under s 351 of the Act. 18 On the basis of that submission, it would appear to be correct the Court would not have jurisdiction. In any event, even if the Court did have jurisdiction, the applicant's application does not reveal any circumstances which would warrant the granting of relief under s 39B in relation to the issue raised by the applicant about procedural fairness. In deciding whether or not to exercise the power under s 351 of the Act, the Minister, plainly, was not obliged to afford procedural fairness to the applicant seeking exercise of the power. And, in that regard, I refer to Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 in various paragraphs, including [52]-[53], [100] and [118]. 19 Furthermore, s 351(7) provides that the Minister does not have a duty to consider whether to exercise the power under subs (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person or in any other circumstances. As the High Court has explained in Re Minister for Immigration and Multicultural and Indigenous Affairs Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [48], in relation to an analogous section of the Act, being s 417: That gives rise to a fatal conundrum. In the express absence of a duty, mandamus would not issue without an order that the earlier decision of the Minister be set aside. Further, in that regard, there would be no utility in granting relief to set aside that earlier decision where mandamus could not then issue. 20 I accept the Minister's submission that if the Court did have jurisdiction, a similar situation would arise in the present matter. Accordingly, there is no purpose, or, to use the language of the High Court, no utility in granting the relief claimed in any event. In these circumstances, the application for relief in respect of the Minister's refusal to intervene should also be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.