Ninsiri v Minister for Home Affairs

Federal Court of Australia|2019-03-18|Before: Gleeson J

The application be dismissed.
The costs of the application abide the outcome of any proceeding commenced by the applicant in the Federal Circuit Court of Australia within six months of the date of this order.
Otherwise, the applicant pay the respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GLEESON J: 1 The applicant ("Mr Ninsiri") had his Five Year Resident Return (Subclass 155) visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("Act") on 20 October 2017. 2 On 2 January 2019, Mr Ninsiri filed an originating application seeking judicial review of a decision, described as a decision of which he was notified on 31 December 2018. 3 On 22 January 2019, the respondent ("Minister") filed a notice of objection to competency. The Minister contends that this Court does not have jurisdiction to hear the applicant's case and the proper forum for Mr Ninsiri to bring his claim is the Federal Circuit Court of Australia ("FCCA"). 4 Mr Ninsiri, who is self-represented, submitted that he wished to bring his case in this Court. He also stated that he had relied on legal advice in failing to respond to an invitation to make representations to the Minister about revoking the decision to cancel his visa. Mr Ninsiri gave a detailed account of the relevant facts in an affidavit sworn on 18 December 2018 and filed on 2 January 2019.

Legal framework for visa cancellation decisions 5 Section 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person in certain circumstances including that the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 6 Section 501CA of the Act applies if the Minister makes a decision under s 501(3A), referred to in s 501CA as the "original decision". 7 By s 501CA(3), as soon as practicable after making the original decision, the Minister must give the person a written notice that sets out the original decision and invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. 8 By reg 2.52 of the Migration Regulations 1994 (Cth) ("Migration Regulations"), representations must be made within 28 days after the person is given the notice and particulars of relevant information under s 501CA(3)(a) of the Act. By s 501CA(4), the Minister may only revoke the original decision if, relevantly, the person makes representations in accordance with the invitation.

Facts 9 According to a letter from the Department of Home Affairs to Mr Ninsiri's then legal representative dated 23 November 2018, Mr Ninsiri was invited, in a previous letter dated 20 October 2017, to make representations to the Minister about revoking the decision to cancel the visa. According to the 23 November 2018 letter, the 20 October 2017 letter also stated that such representations needed to be lodged within 28 days after the day Mr Ninsiri was taken to have received the invitation, in accordance with the prescribed period. Mr Ninsiri did not make a revocation request within 28 days, that is, by 17 November 2017. On 7 September 2018, some 10 months later, Mr Ninsiri made a request that the cancellation of the visa be revoked. 10 The 23 November 2018 letter stated: The Department has determined that your representations were not made within the prescribed time frame. Therefore, the Minister cannot consider revoking the decision to cancel your visa. 11 This decision ("23 November 2018 decision") is the decision notified to Mr Ninsiri on 31 December 2018.

This Court's jurisdiction 12 Section 476A of the Act outlines this Court's limited jurisdiction and provides that it has original jurisdiction in relation to a migration decision if, and only if: (1) the FCCA transfers a proceeding pending in that court in relation to the decision to this Court under s 39 of the Federal Circuit Court of Australia Act 1999 (Cth); (2) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under s 500; (3) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under s 501, 501A, 501B, 501BA, 501C or 501CA; or (4) this Court has jurisdiction in relation to the decision under s 44(3) or s 45(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"). 13 Subsections 476A(1)(a), 476A(1)(b) and 476(1)(d) of the Act do not apply to Mr Ninsiri's application because: (1) the FCCA has not transferred a proceeding pending in that court in relation to the 23 November 2018 decision to this Court; (2) the 23 November 2018 decision is not a decision of the Administrative Appeals Tribunal; and (3) this Court does not have jurisdiction in relation to the 23 November 2018 decision under s 44(3) or 45(2) of the AAT Act. 14 Accordingly, for this Court to have jurisdiction, it must be conferred by s 476A(1)(c) of the Act. However, that provision does not apply because the 23 November 2018 decision was made by the Department and was not made personally by the Minister under the relevant provision, which is s 501CA. 15 It follows that the Court does not have jurisdiction to review the 23 November 2018 decision. 16 The Minister submitted that, to the extent that the applicant also seeks to challenge the 20 October 2017 cancellation decision, the Court also lacks jurisdiction to review the cancellation decision because the decision was not a decision made personally by the Minister. The evidence does not permit me to make a finding about who made the cancellation decision. However, it is not necessary to deal with this submission since Mr Ninsiri's application on its face does not seek to challenge the cancellation decision.

FCCA jurisdiction 17 The FCCA's jurisdiction is provided under s 476 of the Act. Under s 476(1), the FCCA has the same original jurisdiction in relation to migration decisions as the High Court under para 75(v) of the Constitution. 18 The cancellation decision and the 23 November 2018 decision are each a "migration decision" for the purposes of s 476(1) of the Act. Each decision is a "privative clause decision" within the meaning of s 474(2) being, relevantly, a decision of administrative character made or required to be made, under the Act not excluded by ss 474(4) or 474(5) and reg 5.35AA of the Migration Regulations. Neither decision is a decision of the kind in relation to which the FCCA has no jurisdiction by s 476(2)(d) or by the Regulations, specifically reg 5.35AA.

Conclusion 19 This Court lacks jurisdiction to review the 23 November 2018 decision. 20 The proper forum for determining Mr Ninsiri's application is the FCCA. 21 Costs should abide the outcome of any proceeding brought by Mr Ninsiri in the FCCA within the reasonable time. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Migration Act 1958(Cth)ss 474, 476, 476A, 501(3A), 501CA

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