SZ v Minister for Immigration & Multicultural Affairs

Federal Court Rules, O 6 rr 2, 13(1) Migration Act 1958 (Cth), ss 475(2), 476, 478(1)(b), 485 Judiciary Act 1903 (Cth), ss 39B, 44 Federal Court of Australia Act 1976 (Cth), s 33C(1)

Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398, referred to Philip Morris (Australia) Ltd v Nixon [2000] FCA 229, referred to Dinnison v Commonwealth of Australia (1997) 74 FCR 184, applied Cam Mui Chi v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14, applied Minister for Immigration and Multicultural Affairs v A (1999) 168 ALR 594, considered N44 v Minister for Immigration and Multicultural Affairs [1999] FCA 1127, referred to Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415, referred to Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19, referred to Lu v Minister for Immigration and Multicultural Affairs [2000] FCA 40, referred to Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384, applied News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410, referred to SZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS AND CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE AND DIRECTOR, AUSTRALIAN PROTECTIVE SERVICE AND COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE AND PRINCIPAL MEMBER OF REFUGEE REVIEW TRIBUNAL N 190 OF 2000 LEHANE J 11 APRIL 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE

THE COURT ORDERS THAT: 1. The claims in paragraph 2 of the applicant's notice of motion filed on 17 March 2000 be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

CHIEF EXECUTIVE OFFICER, AUSTRALIAN CUSTOMS SERVICE

REASONS FOR JUDGMENT 1 This proceeding began in the High Court on 1 December 1999 as an application for orders nisi directed to the respondents. The substantive orders sought, and the grounds on which the applicant sought them, were stated as follows: "1. The respondents DO SHOW CAUSE WHY WRITS OF PROHIBITION should not be issued out of this Court directed to the first to fifth respondents prohibiting the respondents, and the respondents' agents and servants, from detaining the applicant, and each party represented by the applicant, in custody pursuant to s.189 of the Migration Act 1958 (the Act), or from removing the applicant, and each party represented by the applicant, from Australia pursuant to s.198 of the Act, where such detention or removal is subsequent to the applicant, and each party represented by the applicant, having been refused the grant of a protection visa by a delegate of the Minister or is subsequent to such decision of the delegate being affirmed by the Refugee Review Tribunal, and DO SHOW CAUSE WHY A WRIT OF CERTIORARI should not be issued out of this Court directed to the sixth respondent, removing into this Court to be quashed the decision made by Tribunal Member Whitton on 5 July 1999 in respect of the applicant, and the like decisions made by Members of the Tribunal in respect of each party represented by the applicant and DO SHOW CAUSE WHY WRITS OF CERTIORARI should not be issued out of this Court directed to the first and second respondents, separately, removing into this Court to be quashed the decision made by the delegate of the Minister, Adele Abraham, on 22 May 1997, in respect of the applicant, and like decisions, to refuse to grant a protection visa, made by delegates of the Minister in respect of each party represented by the applicant upon the grounds that: - a) a decision of the delegate of the Minister to refuse to grant an applicant a protection visa, being a decision made pursuant to s.65(1)(b) of the Act, is a decision which is invalid for being made contra to Chapter III of the Constitution; and b) where a delegate's decision to refuse to grant a protection visa is reviewed by the Refugee Review Tribunal, a decision of the member of the Refugee Review Tribunal, affirming the decision of the delegate, is a decision which is invalid for being made contra to Chapter III of the Constitution c) (c) [sic] the prohibition, in s.427(6) of the Act, on an applicant being represented by a legal practitioner in proceedings before the Tribunal, is invalid for breach of natural justice in denying legal representation, to an applicant, in a matter which must be decided judicially"

The references to parties "represented by the applicant" reflects the fact that the applicant commenced the proceedings, relying on O 16 r 12 of the High Court Rules (HCR), as the representative of a number of persons who were said to have the "same interest" as the applicant. Those persons were identified in two lists contained in a Schedule of Represented Persons to the affidavit supporting the application. Each of those named in the first list was said to be a person who had applied to the first respondent (the Minister) for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth), whose application had been refused by a delegate of the Minister and who, because the period specified in s 412(1)(b) of the Migration Act had expired, could no longer apply for review by the Refugee Review Tribunal of the delegate's decision. Each of those named in the second list (including the applicant himself) was said to be a person who had applied for a protection visa, whose application had been refused by a delegate of the Minister, who had unsuccessfully sought review of the delegate's decision by the Refugee Review Tribunal and who, because the period specified in s 478(1)(b) of the Migration Act had elapsed, could no longer apply to the Federal Court for judicial review of the decision of the Refugee Review Tribunal under Pt 8 of the Migration Act.

2 The application for orders nisi was heard by Kirby J on 16 February 2000. After hearing evidence and argument, his Honour made three orders, the first of which was in the following terms: "1. Remit to the Federal Court of Australia the whole of the application made by [the applicant] to this Court for hearing and determination by that Court."

3 The matter was then brought back before his Honour to deal with a problem described by counsel for the Minister as follows: "The problem is that I had put to your Honour that it was common ground that if [the applicant's] matter were remitted to the Federal Court, then in the Federal Court it would be possible either to add further persons as applicants or to have the proceedings continue as representative proceedings on behalf of the other persons named in the schedules to the current application. The problem with that, on reflection, is that what your Honour is remitting is a matter. The matter is only between [the applicant] and the other respondents and that if someone else comes along with the same sort of claim, it is not the same matter." 4 Following further brief discussion, his Honour varied the first order "to remit the whole of the application to the Federal Court of Australia," and the order, as entered, was that "the whole of this application be remitted to the Federal Court of Australia for hearing and determination by that Court." The preceding discussion makes it clear that by the varied order his Honour intended to remit both the controversy between the applicant and the respondents and the controversies between each of the persons named in the two lists and the respondents (or some of them). The remitter to this Court was, of course, made under s 44 of the Judiciary Act 1903 (Cth). 5 I have already, by consent, stated a case, under s 25(6) of the Federal Court of Australia Act 1976 (Cth), for the consideration of a Full Court: that case is based on agreed facts relating to the applicant alone and it will raise, for determination by the Full Court, the constitutional question underlying the claims for prerogative relief. 6 The aspect of the proceeding immediately before me is the applicant's application, by notice of motion filed on 17 March 2000, to add persons either to the group of represented parties (under O 6 r 13(1) of the Federal Court Rules (FCR)) or as additional applicants (under FCR O 6 r 2). In his application to the High Court, the applicant sought the following ancillary orders: "3. For the purposes of Order 16, rule 12, the applicant be the representative of, and sue on behalf of, those persons set out in the Schedule of Represented Persons, below. Schedule of Represented Persons All those persons identified in the Schedule of Represented Persons in the supporting affidavit, to this application, of the applicant's solicitor. 4. The applicant be at liberty to represent, and to sue on behalf of, other persons by amending the Schedule of Represented Persons from time to time, to include those other persons, and filing and serving the amended Schedule of Represented Persons on the respondents under affidavit of the applicant's solicitor." 7 Kirby J did not, in terms, make order 3 as sought. The order remitting the matter to the Court assumes that the applicant sues on behalf of the listed represented parties, as well as for himself. Nor, apparently, was a special order necessary for the purpose of HCR O 16 r 12 if (as appears to be the case) the requirements of the rule were met: the applicant and those whom he claims to represent appear to have "the same interest" (Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398) and, although it is by no means clear that claims are asserted by all the represented persons against all respondents, there is no explicit requirement under that rule (or under FCR O6 r 13) that all applicants claim against all respondents (compare s 33C(1)(a) of the Federal Court of Australia Act: Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 at pars 87, 107 and 111‑113). 8 There is no doubt - it is common ground - that the proceeding, following remitter, has become a proceeding in this Court, to be determined in all respects in accordance with this Court's procedures (Dinnison v Commonwealth of Australia (1997) 74 FCR 184 at 188, 189; Cam Mui Chi v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 at 37‑39). In this Court, in my view, the proceeding should be treated (despite some difficulties to which I shall come) as if it were one commenced under FCR O 6 r 13, the rule corresponding with HCR O 16 r 12: given the particular requirements of Pt IVA of the Federal Court of Australia Act (to one of which I have already referred) it cannot, I think, be regarded as - or turned into - a proceeding under that Part. 9 The foregoing is, I think, necessary background to a consideration of the orders now sought by the applicant. As reformulated during the hearing of the applicant's motion, they are as follows: "1. The applicant be at liberty to represent persons having the same interest in the proceedings by (i) amending, from time to time, the Schedule of Represented Persons (the Schedule being attachment "B" to the affidavit of James Coelho affirmed on 1 December 1999 in High Court proceedings No. S 213 of 1999) to include those persons, and (ii) filing the amended Schedule under affidavit of the applicant's solicitor being an affidavit in the form of the draft affidavit at attachment "E" to the affidavit of James Coelho affirmed on 16 March 2000 in Federal Court proceedings No. N190 of 2000. 2. In the alternative, persons be at liberty to be joined as applicants to Federal Court proceedings No. N190 of 2000 where such persons have the same interest as the applicant, being the interest identified at paragraph 27 of the affidavit of James Coelho affirmed on 1 December 1999 in High Court proceedings No. S 213 of 1999, by those persons names being filed, from time to time, in a Schedule of Additional Applicants under affidavit of the applicant's solicitor which identifies that same interest." 10 The Minister contended that the Court has no power to make the orders sought or, indeed, to add persons as represented parties or as applicants. That was said to be so for two reasons. One was that the Federal Court Rules, properly understood, did not permit the addition of further represented parties or the joinder of further applicants. The other was that the jurisdiction of the Court, in relation to the matter remitted, did not extend beyond the bounds of that matter so that, if the Court purported to deal in the proceeding with controversies, parties to which were persons other than the applicant and the present represented parties, it would exceed its jurisdiction. That was so because, as the Minister's written submissions put it, "the only jurisdiction that the Federal Court has with respect to the subject matter in the absence of a remitter is that conferred by Part 8 of the Migration Act". Counsel for the Minister cited, in support of that proposition, the decision of the Full Court in Minister for Immigration and Multicultural Affairs v A (1999) 168 ALR 594 at 615 per Emmett J and at 619 per Finkelstein J. 11 In that case, the respondent to the proceedings before the Full Court had applied for a protection visa. His application was incomplete, in the sense that a number of significant questions in the prescribed form had not been answered; instead, the respondent indicated that material in answer to the questions would be provided "soon". Before the information had been provided, and without warning the respondent that a decision would be made on the application as it stood, a delegate of the Minister decided to refuse the application. An application for review by the Refugee Review Tribunal (RRT) was lodged, but outside the time permitted by the Migration Act, so that the Tribunal had no power to entertain it. In those circumstances, the respondent sought from the High Court orders nisi for writs prohibiting the Minister from acting on the delegate's decision, quashing that decision and requiring the Minister to cause the application to be dealt with according to law. The matter was remitted by the High Court to this Court under s 44(1) of the Judiciary Act. It proceeded before a judge of this Court, who granted substantially the relief sought. His Honour proceeded on the unexpressed assumptions - neither was questioned in argument before him - that the Court had jurisdiction to determine the matter and that the application for a protection visa had been a valid application and, accordingly, one upon which the Minister was authorised by the Migration Act to make a decision. 12 The validity of the former assumption was tested on the appeal and the validity of the latter assumption received some consideration by the Full Court though, for reasons which for present purposes do not matter, no decision was made as to its correctness. Two members of the Full Court held, as to the former assumption, that if the application for a protection visa were valid the Court lacked jurisdiction to determine the remitted proceeding. That was a result of s 485 of the Migration Act and the limited terms of s 44(1) of the Judiciary Act. Section 485 of the Migration Act provides: "(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially‑reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903. (2) Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975. (3) If a matter relating to a judicially‑reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part." 13 On the assumption that the respondent had validly applied for a protection visa, the decision to refuse it was an RRT‑reviewable decision within the meaning of s 475(2)(d); it was therefore not a judicially‑reviewable decision and was a decision which, for the purposes of s 485(1), was "covered by subsection 475(2)." Consequently, the Court had no jurisdiction in respect of the decision other than the jurisdiction provided by Pt 8 (and Pt 8 did not provide jurisdiction in respect of the decision) or by s 44 of the Judiciary Act. Although s 485(3) limited the powers of the Court in remitted matters only in relation to judicially‑reviewable decisions (and not, for example, in relation to decisions covered by s 475(2)), it did not follow that the Court had jurisdiction, on remitter from the High Court, to grant prerogative relief in relation to an RRT‑reviewable decision. Section 44(1) of the Judiciary Act did not "provide" jurisdiction in such a case but permitted remitter to a Court which already had jurisdiction with respect to the subject‑matter and the parties; and this Court had no jurisdiction in relation to the subject matter before it, namely an RRT‑reviewable decision (see per Emmett J at 613‑616; per Finkelstein J at 619). 14 In my view, the consideration by Emmett and Finkelstein JJ of that topic formed an essential step in their reasoning supporting the orders of the Court and accordingly the views which they expressed are binding on me. In any event - though the contrary was submitted - I see no reason to doubt the correctness of what their Honours said. A different result may follow where a matter is remitted under s 44(2) of the Judiciary Act, so that s 44(3)(a) applies, but the matters which may be remitted under that provision are those in which the High Court has original jurisdiction under s 75(iii), as opposed to s 75(v), of the Constitution. Plainly the Full Court in A proceeded on the basis that that was a matter falling within s 75(v) rather than s 75(iii), and this case in that respect is indistinguishable. 15 The Minister submitted that two things followed from the decision in A. One was that the Court has no jurisdiction to entertain the claims made on behalf of those represented persons whose applications for protection visas have been refused but who have not applied (and now cannot apply) for review by the Refugee Review Tribunal and, a fortiori, cannot entertain similar claims by additional persons in the same position. The other was that, although the Court had jurisdiction both with respect to the applicant and those represented parties whose applications for review by the Refugee Review Tribunal had failed and with respect to the respondents, and had jurisdiction also with respect to the subject matter of the controversies between those parties (being judicially‑reviewable decisions), the Court could not, except upon further remitter, acquire jurisdiction to determine controversies concerning other judicially‑reviewable decisions where the time for making an application under Pt 8 of the Migration Act had expired: s 478(1)(b), in combination with s 485, specifically precluded it from doing so. The matter or matters actually remitted extend only to the controversies to which the proceedings related at the time of remitter - that is, only those between the applicant and the persons then represented, on the one hand, and the respondents on the other. 16 In my view, the Minister's submissions would clearly be correct, both as a matter of principle and on the authority of A, if the jurisdiction required to be exercised in order to determine this proceeding were properly to be described as jurisdiction in respect of judicially‑reviewable decisions or decisions covered by s 475(2) of the Migration Act. Although this was a matter not canvassed in argument, I am not convinced that the jurisdiction to be exercised is correctly to be described in that way. I do not see why this Court would not have had jurisdiction, under s 39B of the Judiciary Act, to entertain the present proceeding if it had been commenced by application in this Court. It would have had jurisdiction, I think, because the real controversy in this case is not one in respect of particular decisions under the Migration Act: it is whether, having regard to Chapter III of the Constitution, s 65 of the Migration Act validly confers on the Minister power to determine an application for a protection visa and whether s 414 and s 415 validly empower the Refugee Review Tribunal to review a decision of the Minister, or the Minister's delegate, to grant or refuse such a visa. If consideration of that issue resulted in a decision favourable to the applicant and the represented parties, the result would be that the "decisions" in respect of which they seek relief were not decisions of either of the kinds mentioned in s 485(1) of the Migration Act. 17 It may be that matters are obscured somewhat by the form of the present proceedings, particularly the relief sought: if the constitutional question were decided favourably to the applicant and represented parties, prerogative relief perhaps would be neither necessary nor appropriate. But the mere circumstance that the applicant seeks what may be inappropriate relief does not require the conclusion that, in determining the real controversy between the parties, the Court is required to exercise jurisdiction denied to it by s 485(1) of the Migration Act. That reasoning is, I think, supported by observations of all three members of the Full Court in A: see per Merkel J at 609, 610, per Emmett J at 617 and per Finkelstein J at 619. In this respect, it seems to me, this case is a fortiori A. 18 Indeed, this must be the basis on which, in a series of cases, judges of the Court have entertained (and in each case rejected) constitutional challenges similar to that made in this case: N44 v Minister for Immigration and Multicultural Affairs [1999] FCA 1127; Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415; Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; Lu v Minister for Immigration and Multicultural Affairs [2000] FCA 40. In each of those cases the issue arose in the context of an application for judicial review under s 476 of the Migration Act; but neither s 476, nor more generally Pt 8 of the Migration Act, could be regarded as a source of power in the Court to entertain the constitutional challenge. And, for the reasons I have given, no basis is readily apparent for a suggestion that such a challenge might be entertained, in this Court, only in the course of an application validly made under s 476 and s 478. 19 If the views I have just expressed are correct, then, contrary to the Minister's submissions, s 485 of the Migration Act does not deprive the Court of jurisdiction or power to make the orders now sought. For reasons which will appear, it is unnecessary to reach a final view about that now and, as I have not heard argument on the subject, it is inappropriate to do so. If further joinder applications are made, it may be necessary to decide. 20 In my view, the motion, so far as it seeks orders for the addition of represented parties or the joinder of additional applicants, must in any event be dismissed. First, in my opinion, counsel for the Minister was correct in submitting that FCR O 6 r 13 does not permit the making of an order which would expand the class of persons as representing whom an applicant has commenced the proceeding under that rule. Indeed, I greatly doubt whether a proceeding, constituted as this proceeding is constituted, could have been commenced in this Court under that rule. The rule - which in this respect may be contrasted with the concluding words of s 33C(1) of the Federal Court of Australia Act - permits, where numerous persons have the same interest in a proceeding, the commencement of the proceeding by any one or more of them "as representing all or as representing all except one or more of them". The class of persons having the same interest in the proceeding includes, no doubt, a considerable number of persons who are not on either of the present lists of represented persons. To commence a proceeding as representing specified persons who, in common with numerous others, have the same interest in the proceeding is not, unless one strains the language well beyond its ordinary meaning, to commence it as representing all those who have that same interest or "all except one or more of them". That both supports my view that FCR O 6 r 13 does not contemplate the expansion of a class of represented persons and also suggests that, if an order having that effect were possible, an order which simply added specified persons to the class could not be made. It is not in any event appropriate, in my view, to make an order the effect of which would be that the class might be added to automatically from time to time simply by the filing of a list together with an affidavit identifying the additional parties as persons having the same interest in the proceeding as the existing represented parties. It is convenient to deal with that question in connection with the application, in the alternative, for an order permitting the joinder of additional persons as applicants, to which I shall now turn. 21 FCR O 6 r 2 provides: "2 Two or more persons may be joined as applicants or respondents in any proceeding - (a) where - (i) if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and (ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or (b) where the Court gives leave so to do."

In Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384 at 388, Sheppard J described the effect of the rule as follows:

"What it comes down to is that an applicant may join pursuant to r.2(a) without leave if the joinder is of respondents in a proceeding which is within that part of the rule. For all other joinders he requires leave, whether they be joinders in proceedings not falling within r.2(a), or joinders sought to be made after the commencement of proceedings in proceedings otherwise within that provision."

His Honour referred to the joinder of respondents but, no doubt, his observations are applicable equally to the joinder of persons as applicants. In News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524, the Full Court said, of O 6 r 1 and r 2;

"The post‑Judicature Act rules of court also included provisions of the kind now found in FCR O 6, rr 1 and 2 for the joinder of multiple claims and multiple parties, either plaintiffs or defendants, where the subject matter of the proceedings is in respect of, or arises out of, the same transaction or series of transactions, involving some common question of law or fact. These provisions reflect an intention, which now receives more emphasis than in the past, to avoid where reasonably practicable a multiplicity of proceedings …" 22 This is not a case in which all rights to relief claimed in the proceeding are in respect of or arise out of the same transaction or series of transactions within the meaning of O 6 r 2(a)(ii). It is impossible, I think, to regard a number of unconnected applications to the Minister for protection visas, or to the Refugee Review Tribunal for review, as part of one series of transactions. The joinder of several applicants, even at the commencement of proceedings, would therefore have required leave. There is power to join additional applicants, under O 6 r 2(b), after the commencement of the proceedings. But it is a discretionary power, and the discretion is to be exercised on each occasion when additional applicants are sought to be joined and one in relation to which the respondents are, on each occasion, entitled to be heard. It would, in my view, involve both a surrender of the discretion and procedural unfairness to the respondents to make an order in the form in which the applicant seeks it. 23 That conclusion is sufficient to dispose of the present motion. It is unnecessary to consider whether, and in what circumstances, an application to join particular named persons as additional applicants might succeed. One difficulty is that any such order would require some amendment of the terms in which the substantive relief claimed in the present proceeding is framed. It may also be relevant that it is unlikely that all applicants would have claims for relief against each respondent. That, among possibly numerous matters which go to the principles on which the discretion under O 6 r 2(b) would be exercised in the context of a particular application, has been barely touched upon in argument, and I shall say no more about those matters. 24 The result is that the claims in par 2 of the applicant's notice of motion filed on 17 March 2000 are dismissed. I have heard no argument about costs. My tentative view is that it is appropriate simply to order that the costs of the motion be reserved. If either the applicant or the Minister wishes to submit that some other order should be made, he should so indicate when the matter is next before the Court. Otherwise I shall then order that the costs of the motion be reserved. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate: Dated: 11 April 2000 Counsel for the Applicant: R Killalea

Solicitor for the Respondent: Australian Government Solicitor