Potier v Hannigan

REASONS FOR JUDGMENT 1 On 10 December 2015, the applicant, Mr Malcolm Huntley Potier, filed an interlocutory application seeking orders, among others, that: The second respondent is hereby injuncted to defer any deportation of the applicant until the conclusion of all of these proceedings, or any other associated proceedings are concluded. 2 The interlocutory application is supported by a document titled "Affidavit" which is signed by Mr Potier but which has not been sworn or affirmed before a qualified witness. The interlocutory application came on for hearing on an urgent basis on Friday, 11 December 2015 at 2.15 pm. Mr Potier had received a "Notice of Intention to Remove from Australia" which records a removal date of Tuesday, 15 December 2015. 3 After hearing submissions made on behalf of the second respondent (the Minister), Mr Potier sought an adjournment in order to prepare his submissions in reply. I stood the matter over to Monday, 14 December 2015 at 2.15 pm to enable him to do that, noting that when the matter was next before me, Mr Potier needed to be in a position to make any further submissions, given the date on which the Minister intends to remove him. 4 The following background facts, which appear from the materials before me, are relevant to this matter: (1) on 21 October 2015, after being released from criminal detention, Mr Potier was detained pursuant to s 189 of the Migration Act 1958 (Cth) (the Act) and is in immigration detention; (2) on 30 October 2015, Mr Potier applied for a bridging visa E (the Visa). That application was refused by a delegate of the Minister on 3 November 2015; (3) Mr Potier applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision to refuse the Visa. According to the Tribunal's decision, that application was received by it on 9 November 2015; (4) on 17 November 2015, the Tribunal found that it did not have jurisdiction as the application had been filed outside the period prescribed by the Act and the Migration Regulations 1994; (5) on 25 November 2015, the applicant sought to file two originating applications and documents in support in the registry of this Court. A registrar of the Court refused to accept them for filing. Her decision is set out in her letter dated 26 November 2015 to Mr Potier; (6) on 1 December 2015, the applicant commenced these proceedings seeking review of the decision of the registrar of 26 November 2015 refusing to accept the documents for filing pursuant to s 35A(5) and (6) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). These proceedings are listed for directions on 17 December 2015; (7) Mr Potier has received a document titled "Notice of Intention to Remove from Australia" to remove him on Tuesday, 15 December 2015. 5 The parties, being Mr Potier and the Minister, have made submissions to me in relation to the orders now sought by Mr Potier in his interlocutory application. Before setting out the submissions made by the parties it is relevant, in my view, to note the terms of each of the originating applications which Mr Potier sought to file on 25 November 2015. They are annexed to the affidavit sworn by Mr Potier in support of the originating application for judicial review. One of the originating applications, which I shall refer to as the First Originating Application in these reasons, seeks a declaration in relation to the decision dated 3 November 2015 refusing Mr Potier's application for the Visa. That is it seeks relief in relation to a decision of the Minister's delegate. The other originating application, which I shall refer to as the Second Originating Application in these reasons, seeks relief in relation to the Tribunal's decision dated 17 November 2015. 6 In support of his interlocutory application Mr Potier submitted that he has commenced proceedings which have been served on the Minister. Upon being served, the Minister has not sought to take any steps to have those proceedings dismissed as an abuse of process or to object to them as frivolous. Mr Potier submitted that the Court's power to make the order he sought was in ss 23 and 33ZF of the FCA Act. The proceedings are, in Mr Potier's submission, serious. Whatever the merits of the proceedings, Mr Potier submits they ought to be decided by the Court. Mr Potier also submits that in the event he is removed from Australia, any orders made in those proceedings, should he ultimately be successful, will be meaningless as he will no longer be in Australia to be released into the community. Mr Potier suggested that the Minister's attempt to remove him would result in the Minister avoiding the jurisdiction of this Court. 7 The solicitor for the Minister submitted that the Court has power to make the order for injunctive relief sought by Mr Potier although he noted there were issues with its terms. 8 The issue articulated by the Minister is whether Mr Potier can meet the first limb of the relevant test namely, whether there is a serious question to be tried. In the Minister's submission there is no serious question to be tried. This is because, while the Court has the jurisdiction to review the decision of the registrar to refuse the filing of the two originating applications that Mr Potier attempted to file, this Court has no jurisdiction to entertain the substantive proceedings which Mr Potier in fact sought to file. 9 The solicitor for the Minister submitted that the First Originating Application seeks orders in relation to a primary decision. The original jurisdiction of this Court in relation to a migration decision is set out in s 476A of the Act. The relief sought in the First Originating Application does not come within that section. Similarly, the solicitor for the Minister submitted that the Federal Circuit Court of Australia does not have jurisdiction to review the decision of the delegate dated 3 November 2015. He referred the Court to s 476 of the Act in that regard. Again, having regard to s 476A of the Act, the Court does not have jurisdiction to deal with the relief sought in the Second Originating Application. In relation to the issues that arise in the Second Originating Application, the solicitor for the Minister referred me to the decision in Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 (Salehi) in which Mansfield J, after reviewing a number of the authorities, found that the time limits prescribed by the Act for the filing of an application for review are strict. 10 In the circumstances, even if Mr Potier was successful in his application for judicial review of the registrar's decision, the grant of any relief to have the registrar reconsider her decision would be futile given the lack of jurisdiction of the Court. 11 The solicitor for the Minister also noted the terms of s 198(6) of the Act which require an officer to remove, as soon as reasonably practicable, an unlawful non-citizen in the circumstances set out in that subsection which, he submitted, applied to Mr Potier. 12 In reply, Mr Potier submitted that the First Originating Application raises the issue of the validity of the delegate's decision and whether it is in accordance with law. Mr Potier submits that is a legal question to be determined by this Court, and not a review of a primary decision. Mr Potier further submits that the Second Originating Application relates to the decision of the Tribunal that it had no jurisdiction. Again, Mr Potier says that is a legal question to be determined by this Court. 13 Mr Potier submitted that the decision of Salehi relied on by the Minister is not relevant as the section considered by Mansfield J in that matter, s 478 of the Act, has been repealed. Mr Potier relies on the decision in Pomare v Minister for Immigration and Citizenship [2008] FCA 458 (Pomare) in support of the substantive relief that he seeks in the Second Originating Application. 14 The Court's power to make the orders sought by Mr Potier is in s 23 of the FCA Act. Section 33ZF has no relevance. Before making an order restraining a party, the Court must be satisfied that there is a serious question to be tried and, if so, that the balance of convenience favours the making of the order. 15 In the present case, having considered the evidence and the submissions made I am not satisfied that there is a serious question to be tried. I accept the Minister's submission that this Court does not have jurisdiction to entertain the First Originating Application or the Second Originating Application. In those circumstances, the substantive relief sought by Mr Potier in these proceedings is futile. 16 Section 476A of the Act prescribes this Court's original jurisdiction in relation to migration decisions. Most relevantly s 476A(1) is in the following terms: (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 Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia 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. Note: An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975: (a) a privative clause decision; (b) a purported privative clause decision; (c) an AAT Act migration decision. In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a), (b) or (c) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975. The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non‑privative clause decisions. 17 Neither the First Originating Application nor the Second Originating Application falls within s 476A of the Act. Further, in my view, the decision of the registrar refusing the filing of the First Originating Application and the Second Originating Application recognises this situation and the Court's lack of jurisdiction, in the case of the First Originating Application, implicitly and, in the case of the Second Originating Application, expressly. In those circumstances, even if Mr Potier was able to demonstrate that he was entitled to the substantive relief he seeks in relation to the decision of the registrar, it would be of no utility given the lack of jurisdiction of this Court to determine the First Originating Application and the Second Originating Application. 18 The fact that upon being served with the originating process commencing these proceedings the Minister took no steps to file an application to summarily dismiss or strike out the proceedings is not a matter which is relevant to the issue now before me. There was no obligation on the Minister to take such a step in the proceedings. The fact that he has not done so does not have any effect in terms of, for example, amounting to an admission that the Minister thinks the proceedings have merit. Nor can it be said, as Mr Potier suggests, that the removal is an attempt by the Minister to avoid the jurisdiction of this Court in the present proceedings. There is no evidence of that. 19 Insofar as Mr Potier relies on the decision of Pomare in relation to the substantive issues raised in the Second Originating Application, in my view, that case can be distinguished on its facts and is not relevant to the situation in which Mr Potier now finds himself, or found himself, in connection with the filing of his application with the Tribunal. As was submitted by the solicitor for the Minister, the terms of s 478 of the Act, which were considered in Salehi, can now be found in ss 412 and 347 of the Act. The proposition for which Salehi is authority applies equally to those sections. That is, the provisions in terms of filing with the Tribunal are inflexible. In any event, those issues do not arise for determination before me. 20 The solicitor for the Minister concedes that if Mr Potier is removed there is no utility in the present proceedings as, if ultimately successful not only in these proceedings but in proceedings in the nature of those contemplated by the First Originating Application and the Second Originating Application, Mr Potier will not be able to apply for the Visa as he will not be onshore. However, in effecting the removal, the Minister is acting in accordance with his obligations under s 198 of the Act. 21 Given the matters set out above, I will make orders dismissing Mr Potier's interlocutory application filed 10 December 2015 and order that Mr Potier pay the Minister's costs of that application. The orders I make are: (1) the interlocutory application, filed 10 December 2015, by the applicant be dismissed; (2) the applicant to pay the second respondent's costs of that application. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.