Mehmood v Attorney-General of the Commonwealth

THE OBJECTION TO COMPETENCY 6 A Notice of Objection to Competency was filed on 15 March 2013. 7 It was submitted that jurisdiction to review a decision to cancel a Criminal Justice Certificate was conferred upon the Federal Magistrates Court - but not this Court. 8 Provision is made in Rule 31.05 of the Federal Court Rules 2011 for a Respondent to file a Notice of Objection to Competency to an application for an order under the Administrative Decisions (Judicial Review) Act 1977 (Cth). This rule had its counterpart provision in Order 54 r 4 of the now-repealed Federal Court Rules 1979. Unlike its former counter-part, r 31.01(2) expressly provides that it is the applicant who "bears the burden of establishing the competency of an application". Rule 31.05(3) now also expressly provides that a respondent "may apply to the Court for the question of competency to be heard and determined before the hearing of the application". 9 Division 31.3 of the Federal Court Rules 2011 applies to applications for review of a "migration decision". Rule 31.21 provides that expressions used in that Division have the same meaning as they have in the Migration Act 1958 ('Cth") ("Migration Act"). Rule 31.24 provides that a notice of objection may be filed in respect to an application for review of a "migration decision". Rule 31.24(2) and (3) are the counterpart provisions to r 31.05(2) and (3) respectively. That expression would thus include a "migration decision" as defined as follows in s 5 of the Migration Act: "migration decision" means: (a) a privative clause decision; or (b) a purported privative clause decision; or (c) a non-privative clause decision. Part 8 of the Migration Act addresses judicial review of decisions and s 474(2) defines a "privative clause decision" for the purposes of that section as follows: "privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). 10 The course to be taken when any objection to the jurisdiction of this Court is raised by a Respondent is not certain. So much was recognised by Branson J in Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109 where her Honour summarised the position as follows: THE PROPER APPROACH [4] Before giving consideration to the terms of the notice of objection to competency, it is appropriate to say something about the approach that the Court should take when its jurisdiction is challenged. It is clear that this Court has jurisdiction to determine that it has no jurisdiction in respect of a proceeding instituted in the Court and to dismiss the proceeding accordingly (Residual Assco Group Ltd v Spalvins [2000] HCA 33; 202 CLR 629 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at [14]). [5] The provisions in the Federal Court Rules for the filing and service of a notice of objection to competency is intended to encourage a respondent to inform the applicant promptly that the jurisdiction of the Court is in issue (Coal & Allied Operations P/L v Industry Research & Development Board - unreported, Federal Court of Australia, Beaumont J, 16 November 1992). The filing of a notice of objection to competency also places the Court on notice that its jurisdiction to make the orders sought by the applicant in the proceeding is challenged. The Court must then decide, before it makes the orders sought by the applicant or any substantive orders, whether it has jurisdiction to proceed (The Queen v the Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1978) 143 CLR 190). However, whether, where the jurisdiction of the Court is challenged, the Court must defer taking any further step in the proceeding until it rules on the challenge remains, in my view, unclear. [6] In Bray v F Hoffman-La Roche [2003] FCAFC 153; 200 ALR 607 Finkelstein J at [239] expressed the view that, where an issue which is properly characterised as jurisdictional is raised, a judge is not entitled to put off his or her determination of that issue unless all steps in the proceeding are deferred pending the determination of the issue. His Honour said: … until the court's jurisdiction has been established, the court cannot know whether it has the "right" to enter upon the inquiry. It is only when the right is established that the case can proceed. However, the practice of the Court has not always accorded with the view expressed by Finkelstein J (see Khatri v Price [1999] FCA 1289 per Katz J at [14]). [7] I have not heard argument on whether I should in this case adopt the approach suggested by Finkelstein J to be the only appropriate approach. The parties put their respective submissions to me on the assumption that the relevant principles were those collected and summarised in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 ('Reading v AMP'). Reading v AMP, which sought to identify and summarise the circumstances in which an order will be made under O 29 r 2 of the Federal Court Rules, was not a case in which the jurisdiction of the Court was challenged. Appl'd: Parker v Vivian [2009] FCA 933 at [9] to [10] per McKerracher J; Parker v Antoine [2009] FCA 929 at [11] to [12] per McKerracher J. 11 Whatever may be the approach to be followed in another proceeding, it is considered that the Notice of Objection to Competency filed on 15 March 2013 should be resolved at the outset and at the same time as resolving Mr Mehmood's application for interlocutory relief restraining his removal from Australia prior to any hearing of his Originating Application.

THE STATUTORY PROVISIONS TO CANCEL and JURISDICTION 12 Central to the resolution of the objection to competency is the identification of the statutory provisions pursuant to which each decision was said to have been taken and the identification of the jurisdiction entrusted to this Court. 13 The decision to cancel Mr Mehmood's Criminal Justice Certificate in February 2013 was taken pursuant to s 162 of the Migration Act. That section in its entirety provides as follows: Criminal justice certificates to be cancelled (1) If the presence in Australia of a non-citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given, then: (a) if it was given under section 145 or 147, the Attorney-General; or (b) if it was given under section 146 or 148--an authorised official; is to cancel it. (2) Before cancelling the certificate, the Attorney-General or authorised official is, an adequate time before doing so, to tell the Secretary: (a) when it is to be cancelled; and (b) the expected whereabouts of the non-citizen when it is cancelled; and (c) the arrangements for the non-citizen's departure from Australia. In the present proceeding, the Criminal Justice Certificate was granted pursuant to s 147. 14 Contrary to the initial understanding as at 13 March 2013 when this proceeding was first before the Court as a duty matter, there would appear to be no necessity for any separate "decision" to be taken to cancel any Criminal Justice Visa once a certificate is cancelled: s 164. That section in its entirety provides as follows: Effect of cancellation etc. on criminal justice visa If: (a) a criminal justice certificate is cancelled; or (b) a criminal justice stay warrant is cancelled or expires; any criminal justice visa granted because of the certificate or warrant is cancelled and the Minister is to make a record of the cancellation. The section operates according to its terms once a certificate is cancelled. 15 The jurisdiction entrusted to this Court is relevantly to be found in s 476A(1) and (2) which provide as follows: (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 Magistrates Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Magistrates 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 or 501C; 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. (2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. Section 476A(1), it will be noticed, provides that this Court relevantly has jurisdiction "only if" its original jurisdiction is invoked in respect to one or other of the classes of decisions set forth in s 476A(1)(a) to (d). 16 Section 476 confers jurisdiction on the Federal Magistrates Court. Section 476(1) is expressed in very much different terms to s 476A(1) and provides as follows: Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. The Federal Magistrates Court has concluded that there "appears to be no doubt that a challenge to the validity of a decision under s.162 comes within [the Federal Magistrates Court's] jurisdiction under s.476 of the Migration Act": Zhang v Minister for Immigration and Citizenship [2009] FMCA 196 at [21]. The solicitor appearing for the Respondents thus accepted that the Federal Magistrates Court would have jurisdiction to review the decision taken pursuant to s 162(1)(a). 17 For the purposes of s 162(2) the Secretary was told of the matters there specified on the same day as the certificate was cancelled. No prior notice of the intention to cancel the certificate was given to Mr Mehmood. But such matters, it was submitted, were not matters that should attract the concern of this Court as this Court had no relevant jurisdiction. Moreover, it was further submitted, the rules of procedural fairness had no application to a decision taken pursuant to s 162(1): Minister for Immigration and Citizenship v Zhang [2009] FCAFC 129 at [96], 179 FCR 135 at 146. If this Court had no jurisdiction to review the decision taken pursuant to s 162(1)(a), it was also implicitly submitted that the Court had no jurisdiction to award any consequential "loss or damages" said to flow from that decision. 18 The submission as to the absence of this Court's jurisdiction to entertain the Originating Application and Statement of Claim as filed on 7 March 2013 is accepted. The decision to cancel the Criminal Justice Certificate does not fall within any of the categories specified in s 476A(1). The submission advanced by Mr Mehmood that the decision taken on 26 February 2013 was not a "migration decision" but an "administrative decision" does not alter this conclusion.

CONCLUSIONS 19 It follows that the Respondents' objection to the competency of this Court to grant the relief claimed by the Applicant is upheld. 20 It is noted that the undertaking given on behalf of the Respondents on 13 March 2013 was continued. The undertaking given to the Court not to take any step to secure the removal of the Applicant from Australia was continued until 14 days after the date of this judgment. 21 It may further be noted that Mr Mehmood was encouraged on 13 March 2013 when the matter was before the Court to seek independent legal advice with a view to commencing a separate proceeding in the Federal Magistrates Court. No such proceeding was commenced. 22 There is no reason why Mr Mehmood should not pay the costs of the Respondents.

THE ORDERS OF THE COURT ARE:

1. The Notice of Objection to Competency filed by the Respondents on 15 March 2013 is upheld.
2. The Interlocutory Application filed by the Applicant on 12 March 2013 is dismissed.
3. The Application and Statement of Claim filed on 7 March 2013 are dismissed.
4. The Applicant is to pay the costs of the Respondents. I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.