McLaughlin v Minister for Immigration and Border Protection

1. The respondent's objection to competency is upheld.
2. The action is dismissed.
3. The applicant is to pay the respondent's costs of and incidental to the originating application and the respondent's notice of objection to competency.
4. The applicant has leave to inspect the transcript of today's hearing by way of a "read only" electronic file to be provided to the applicant by email from the South Australia District Registry. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 By originating application dated 27 May 2016, the applicant, Mr McLaughlin, sought relief in this Court in the following terms: Details of relief sought 1. That the decision of the Respondent purportedly to determine that the Applicant no longer holds a visa be quashed. 2. That the Respondent be restrained from removing the Applicant from Australia pending the resolution of this application. 2 The grounds for relief are expressed as follows: Grounds of application 1. The Respondent has purported to cancel a Class BF transitional (permanent) visa ('the transitional visa') in the name of the Applicant, but the Applicant holds an absorbed person visa. Particulars The cancellation of the transitional visa was made by reference to factors that are different from those that would be involved in the cancellation of the absorbed person visa, with the consequence that the factors relevant to the cancellation of the transitional visa would not be relevant to any purported cancellation of the absorbed person visa. Any inferred purported cancellation of the absorbed person visa must fail for irrelevancy considerations (and failure to consider relevant considerations). 2. It follows that the Applicant is still the holder of a visa (an absorbed person visa). 3 The originating application is titled "Originating application for review of a migration decision" and is made in Form 70 in accordance with r 31.22(1) of the Federal Court Rules 2011 (Cth) (Rules). That rule prescribes the procedure for invoking this Court's jurisdiction to review a "migration decision". The term "migration decision" has the same meaning in the Rules as it does in the Migration Act 1958 (Cth) (Act): see r 31.21 of the Rules. 4 By a Notice of Objection to Competency filed on 17 June 2016, the respondent (Minister) seeks an order that the application be dismissed pursuant to r 31.24 of the Rules. 5 I am satisfied that the application, both in its form and in its content, purports to invoke this Court's original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act), that is, the jurisdiction equivalent to that conferred on the High Court under s 75(v) of the Constitution. 6 This Court's original jurisdiction to hear and determine applications for judicial review in relation to migration decisions is confined to that conferred by s 476A of the Act. I accept the Minister's submission that each of the decisions and conduct sought to be reviewed are properly to be regarded as a "migration decision" for the purpose of that provision: see the definition of "migration decision" in s 5 of the Act, which defines a migration decision to include: (1) cancelling, revoking or refusing to give a consent or permission (including a visa) (s 474(3)(b)); and (2) doing or refusing to do any other act or thing (s 474(3)(g)). 7 Mr McLaughlin confirmed in his oral submissions that he sought judicial review of both a decision of the delegate of the Minister to cancel his Class BF transitional (permanent) visa and a "decision" of the Minister to the effect that, upon cancellation of that visa, Mr McLaughlin no longer held an absorbed persons visa or, for that matter, any visa under the Act. The consequence of Mr McLaughlin holding no visa under the Act is that he would be an unlawful non-citizen: see ss 13 and 14 of the Act. 8 Insofar as Mr McLaughlin applies for judicial review of the decision of the delegate of the Minister to cancel his transitional visa, that subject matter does not fall within the original jurisdiction of this Court as conferred and limited by s 476A of the Act. 9 As to the application to quash the "decision of the respondent purportedly to determine that the Applicant no longer holds a visa", that claim for relief, fairly read together with the grounds for review, indicate that Mr McLaughlin would contend on this application that he continues to hold an absorbed persons visa, irrespective of whether the decision to cancel his transitional visa is invalid in the sense described by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Putting aside the merits of that argument, it remains that the action commenced by Mr McLaughlin is one in which judicial review is sought of or in relation to a migration decision, namely, the "decision" that Mr McLaughlin no longer holds a visa (including an absorbed person visa). Even if that impugned act is not a "decision" in the ordinary sense of the word, it is, at the very least, the "doing of an act or thing" and falls within the definition of a "migration decision" for that reason. The subject matter of that aspect of Mr McLaughlin's claim does not fall within the limited original jurisdiction conferred on this Court under s 476A of the Act. 10 This Court has held that, although s 476A of the Act limits the Court's jurisdiction to hear and determine applications for judicial review in relation to migration decisions (that is, the jurisdiction equivalent to that conferred on the High Court under s 75(v) of the Constitution), it does not otherwise exclude or limit jurisdiction that is otherwise properly attracted in the matter before it. For example, this Court may hear and determine applications founded in the tort of false imprisonment where the respondent relies upon a visa cancellation decision as a source of the authority to detain the applicant: see for example Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471 (Siopis J). Jurisdiction in such a case is attracted under s 39B(1A)(c) of the Judiciary Act. However, that is not the jurisdiction sought to be invoked in the present case. 11 In so concluding, I have taken into account the circumstance that the relief sought on the application includes an injunction restraining Mr McLaughlin's removal from Australia "pending the resolution of this application". Although this Court has jurisdiction to grant relief in the nature of an injunction other than in the exercise of its jurisdiction to hear and determine applications for judicial review under s 39B(1) of the Judiciary Act, the injunction sought by Mr McLaughlin in [2] of his claim for relief is interlocutory in nature: it is ancillary and incidental to the primary claim for relief stated in [1]. As this Court does not have jurisdiction to grant the relief sought in [1], the application for ancillary or incidental relief sought in [2] must also fail for lack of competency: contrast ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363. 12 Mr McLaughlin bore the burden of establishing the competency of his application: see r 31.05(2). He has not discharged that burden. 13 Rule 31.05(5) provides that, if the Court decides that an application is not competent, the application "is dismissed". 14 I have decided that the application is not competent. Although it appears that r 31.05(5) operates of its own force to dismiss the application, I will, nonetheless, make an order in these proceedings to the same effect. 15 I will hear the parties as to costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.