Griffiths v Minister for Immigration and Border Protection

1. Pursuant to r 31.24(5) of the Federal Court Rules 2011 (Cth), the appeal be dismissed as not competent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 The appellant is a citizen of the United Kingdom. He arrived in Australia in 1969, and has been granted various resident return visas. The last of these was granted on 18 October 1995. On 18 May 2015, the appellant was convicted of a criminal offence and sentenced to 12 months imprisonment. 2 On 2 November 2015, the appellant was given notice by the Department of Immigration and Border Protection that his Class BB Subclass 155 Five Year Resident Return visa had been mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (the Act). He was invited to make submissions about whether that decision should be revoked. He did so. Nevertheless, on 14 December 2016, the Assistant Minister came to the conclusion that the visa cancellation decision should not be revoked. 3 The appellant unsuccessfully sought judicial review of this decision before the Federal Circuit Court of Australia: Griffiths v Minister for Immigration and Border Protection (No 2) [2017] FCCA 441. He then appealed to the Federal Court of Australia. On 11 May 2018, the Court (Griffiths J sitting as a single judge in the appellate jurisdiction) dismissed the appellant's appeal: Griffiths v Minister for Immigration and Border Protection [2018] FCA 629. 4 On 21 May 2018, the appellant filed a Notice of Appeal in the Court purporting to appeal from the decision of Griffiths J. 5 On 27 June 2018, the first respondent filed a Notice of Objection to Competency of Appeal on the basis that Griffiths J was exercising the Court's appellate jurisdiction pursuant to ss 24(1)(d) and 25(1AA) of the Federal Court of Australia Act 1976 (Cth) and that therefore the Court does not have jurisdiction to hear and determine any appeal of that decision. 6 This objection is correct. The Court does not have two layers of appellate jurisdiction and does not have jurisdiction to hear any appeal from a single judge in the position of Griffiths J, exercising the appellate jurisdiction of the Court. Any appeal must be pursued by way of an application for special leave to the High Court of Australia. 7 In order to deal with the matter efficiently, I listed the matter for case management on 10 September 2018. On this day, I explained to the appellant the proper processes by which he ought to pursue any appeal. I handed relevant documents to the appellant, which contained extracts of ss 24 and 25(1AA) of the Federal Court of Australia Act 1976 (Cth) and r 41 from the High Court Rules 2004 (Cth), as well as a copy of Form 23, which is required to seek special leave to appeal in the High Court. 8 I explained that due to the time limits imposed on applications for special leave to appeal, he would need to apply for an extension of time to file an application for special leave to appeal. He would also need to file a supporting affidavit. I explained that in the affidavit he needed to set out why he says the decision is wrong, put his arguments forward, and explain the reasons for the delay. 9 The appellant claimed that he was told over the phone by Court staff that "you can" fill out the form to appeal Griffiths J's decision in the Federal Court as opposed to the High Court one. I explained that that is part of the factual matrix he will need to explain in the affidavit. 10 On 13 September 2018, my associate sent an email to the parties restating and confirming the details that I explained in the case management hearing. The email explained that: The appeal from the decision of Judge Smith in the Federal Circuit Court was heard by Justice Griffiths. Pursuant to ss 24(1)(d) and 25(1AA) of the Federal Court of Australia Act 1976 (Cth), Justice Griffiths heard that appeal in the appellate jurisdiction of the Federal Court of Australia as opposed to its original jurisdiction. Consequently, the only means of appealing Justice Griffiths' decision is to seek special leave to appeal to the High Court of Australia. The process of initiating an application for special leave to appeal to the High Court is set out in Rule 41.01 of the High Court Rules 2004 (Cth) and involves filling out Form 23, which can be found here. A copy is also attached to this email. Rule 41.02 additionally provides that any application must be filed within 28 days after the judgment was pronounced but that an applicant may seek an order for an extension of time by filing and serving an affidavit explaining the reasons for the failure to comply with the 28 day requirement. In this case, that would involve setting out the reasons as to why the applicant believed that he was required to file the appeal in the Federal and not the High Court. The applicant should also explain why he believes that the High Court of Australia should grant the extension of time and hear the appeal by reference to any purported errors in the decisions of Justice Griffiths and/or Judge Street. Noting the above, unless any submissions to the contrary are received by the Chambers of the Chief Justice by 17 September 2018, the present appeal will be dismissed with no order as to costs. 11 No submissions to the contrary were filed by, or otherwise received from, the appellant. In an email dated 18 September 2018, the first respondent indicated that it would not be making any submissions to the contrary either. 12 At the case management hearing, the solicitor for the first respondent indicated that she was instructed to seek costs. I indicated that, should there be further delay or need for any submissions, I would consider whether to make an order for costs. There has been no such delay or filing of submissions. As such, I do not propose to order any costs against the appellant. 13 I order that, pursuant to r 31.24(5) of the Federal Court Rules 2011 (Cth), the appeal be dismissed as not competent. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.