Whittaker v Minister for Immigration and Border Protection

1. the matter be transferred to the Federal Circuit Court of Australia pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth); and
2. there be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DERRINGTON J: 1 In this matter the applicant, Mr Ziyaad Whittaker, seeks an extension of time in which to bring an application for the purposes of challenging the decision of the Minister for Immigration and Border Protection not to revoke a cancellation decision in respect of his visa. 2 The circumstances surrounding the reasons as to why this application has to be made are probably not necessary to consider, however, it is relevant to note that Mr Whittaker had his existing visa cancelled and was informed of that at a relatively early stage. He then, by the assiduous efforts of his mother, made representations to the Minister seeking that the Minister exercise his power to, applied to revoke the cancellation of his visa under section 501CA(4) of the Migration Act 1958 (Cth). The Minister considered, over some significant period of time, whether or not to do that. Eventually, on 17 January 2017, he determined that he would not. 3 Under the provisions of section 477 of the Migration Act the applicant had a limited period of time in which to make an application for review of the Minister's decision. That period of time was 35 days. For reasons which are not necessary to consider on the question to be decided today, the application was not made within that time. That is not by, any means, a criticism of the applicant or his mother, Mrs Whittaker. It should be noted that Mrs Whittaker has made diligent and determined attempts to pursue the correct Court proceedings, but she is not legally trained and that has caused both difficulty for her and delay. 4 Nevertheless, an application was eventually made to this Court for the purposes of extending the period of time in which the applicant might make an application to review the decision of the Minister not to revoke the cancellation decision. The matter has come on relatively quickly and today was the first case management hearing in the matter. At the commencement of the case management hearing, Ms Tattersall, who appeared for the Minister, raised an issue questioning the jurisdiction of this Court to hear and determine the application. 5 I note, as an aside that Ms Tattersall's submissions to the Court, obviously on instructions from her client, have been very fair and balanced and she has sought to assist the Court in a difficult matter. The essence of the Minister's point in this respect is that, whilst presently under section 476A(1)(c) a Minister's decision under section 501CA is amenable to review in this Court, this was not the position at the time that the Minister in fact made the decision in this case. 6 Ms Tattersall has helpfully drawn my attention to the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth) (Amendment Act). The Amendment Act was assented to on 22 February 2017 and the relevant provisions for the purposes of this matter were deemed to have commenced on 23 February 2017. Relevantly, item 12 of Schedule 1 of the Amendment Act amended s 476A(1)(c) of the Migration Act 1958 (Cth) by inserting in that subsection both ss 501BA and 501CA. 7 Unfortunately for the applicant, the effect of the legislative scheme is that this Court has no jurisdiction to hear and determine applications for judicial review of decisions made by the Minister under s 501CA of the Migration Act which were made before the commencement of the relevant provisions of the Amended Act, that date being 23 February 2017. 8 It follows that this Court does not have jurisdiction to determine the application as it is presently constituted. However, the question which now arises is, what ought to happen to the application? Should it be dismissed or transferred to the Federal Circuit Court? The answer to this question might have serious consequences for the applicant. That said, it is quite possible that whether or not the matter is dismissed or transferred will not make a great deal of difference, but that may be a matter for another Court. 9 The issue presently before me is whether or not I ought transfer this matter under s 32AB(1) of the Federal Court of Australia Act 1976 (Cth) or simply dismiss the proceedings thereby allowing the applicant to commence further proceedings, if he so wishes, in the Federal Circuit Court. It has been suggested in some authorities, which Ms Tattersall has helpfully provided to me, that the matter once transferred to the Federal Circuit Court might then be retransferred to this Court under s 39 of the Federal Circuit Court of Australia Act 1999 (Cth), the effect of which would be to vest jurisdiction in this Court to hear and determine it. This process has been observed by Perry J in Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188 at [14] to be "a curious result" and I would agree with that as a matter of general application. However, the fundamental issue is whether or not this Court has jurisdiction to transfer a matter in respect of which it has no jurisdiction to hear and determine the substantive merits? That question has arisen in a number of cases dealing with migration matters. 10 The first to which I will refer is the decision of Tamberlin J in Asaad v Minister for Immigration and Citizenship [2008] FCA 836. In that matter, where the legal question was not relevantly dissimilar to the present case, the issue was whether or not the Court might transfer the proceedings before it to the Federal Magistrates Court, despite the fact that the Court did not have jurisdiction to hear and determine it. The power in question was that which I mentioned previously; being s 32AB(1) of the Federal Court of Australia Act 1976 (Cth). That section provides that if a proceeding is pending in the Court, the Court may by order transfer the proceeding from the Court to the Federal Circuit Court. 11 At the time, the reference to the Federal Circuit Court was of course a reference to the Federal Magistrates Court. Tamberlin J in considering the question on transfer, considered that the expression "proceeding" in s 32AB of the Federal Court of Australia Act 1999 (Cth) was distinct from the expression "matter" as that expression is used in s 39B(1) of the Judiciary Act 1903 (Cth). The point of that was that the expression "proceeding" was sufficiently wide to encompass the dispute between the parties before the Court and was distinct from the concept of the "matter" in respect of which the Court had no jurisdiction to hear and determine. His Honour, thereupon, concluded that the court had power to, and ought to, transfer the proceedings from the Federal Court to the Federal Magistrates Court notwithstanding there was doubt as to the Federal Court's jurisdiction to hear and determine it. In other words, his Honour considered that despite the Federal Court not having any relevant jurisdiction to hear and determine the action overall, it had power under s 32AB to determine a "proceeding", being the dispute between the parties, as to the relevant jurisdiction and to make orders accordingly. 12 The next decision, which was but a few weeks after the decision in Asaad, was a decision of Emmett J in Rashidzadeh v Minister for Immigration and Citizenship [2008] FCA 1168. There, the circumstances were again not dissimilar to the circumstances of the present case. An application had been brought for a Constitutional writ for relief in the Federal Court but, as his Honour noted, this court had only limited jurisdiction by reason of s 476A of the Migration Act 1958 (Cth) and in order for the court to have jurisdiction, the matter must have fallen within subparagraphs (a) to (d) of that section. It was common ground before his Honour that, the court did not have jurisdiction over the matter which was the subject of the proceeding. However, his Honour at [2] referred to s 32AB(1) and agreed that the expression "proceeding" includes: …an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal. 13 His Honour continued: Even though it is common ground that the Court does not have jurisdiction to resolve the dispute between the parties in this proceeding, there is nevertheless a proceeding pending in this Court. Accordingly, I am satisfied that the Court has power and jurisdiction, pursuant to s 32AB, to transfer the proceeding to the Federal Magistrates Court. 14 Whilst his Honour queried whether any utility would arise from ordering a transfer, it appears that his Honour, nevertheless, was prepared to do so. 15 The next decision is that of Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188. It was a decision handed to me by Ms Tattersall for the Minister. In that matter, again, a not dissimilar circumstance arose whereby the application brought before the Court was not within s 476A of the Migration Act, and hence the Federal Court had no jurisdiction to hear and determine it. The question then was what her Honour ought to do with it; that being whether to dismiss it or to transfer it to the Federal Circuit Court. In reaching her conclusion, her Honour accepted that the Federal Court had no jurisdiction in the matter and that the Federal Circuit Court did, but the essential question was not necessarily whether or not there was a power to transfer the proceedings to the Federal Circuit Court, but whether or not the Federal Circuit Court would have effective power under s 39 of that Act to transfer the matter to the Federal Court. In reaching her conclusion, her Honour said at paragraph 14: I have considered whether it would be appropriate to transfer these proceedings to the Federal Circuit Court as a means of best protecting the applicant's rights, given that any fresh application in that court would, subject to the matters I further explain, now be out of time and require an extension of time. I am persuaded by the Minister's submissions that this court does have power to transfer the proceedings to the Federal Circuit Court notwithstanding its own lack of jurisdiction with respect to the originating application: see Asaad v Minister for Immigration and Citizenship [2008] FCA 1039 at [21] (Tamberlin J); Rashidzadeh v Minister for Immigration and Citizenship [2008] FCA 1168 at [2] (Emmett J). However, it would seem a curious result to say that this court lacks jurisdiction which it could acquire because the Federal Circuit Court has retransferred the proceedings back into this court. This doubt persuades me that this is not an appropriate course to adopt, given the Minister's intimations that the Federal Court is the most appropriate court in which the proceedings should ultimately be dealt with. 16 In that matter, her Honour thought that the appropriate course was to dismiss the originating application which had been filed in court but made an order that the judgment not be entered for a period of 14 days in case something unexpected might arise in relation to instituting proceedings in the Federal Circuit Court. 17 The last decision to which I wish to refer is a decision of Griffiths J in Poroa v Minister for Immigration and Border Protection [2015] FCA 1313. In that matter there was an objection to competency and, again, it arose under the provisions of the Migration Act 1958 (Cth) and, in particular, under s 501CA(4) being the decision of the Minister not to revoke an earlier visa cancellation decision. 18 His Honour reached the conclusion on the construction of s 476A of the Migration Act that the court had no jurisdiction to hear the matter. He then considered the decision in Tusitala and the issues arising in that case. His Honour ultimately reached the conclusion that as the matter went to the jurisdiction of the court, there ought to be particular caution and he ultimately dismissed the application. It is noted that his Honour made reference to the fact that the current legislative position was unsatisfactory, and that urgent consideration needs to be given to amending the Act to remedy what was identified as a legislative drafting oversight which currently existed and was creating considerable inconvenience and unnecessary distraction. 19 As I understand it, the Minister accepts the absence of s 501CA from the provisions of s 476A(1)(c) was, in fact, an oversight which has now been corrected by the Amendment Act. The result of the above cases seems to suggest to me that this court does, in fact, have power to transfer these proceedings to the Federal Circuit Court. I am not required at this point to determine whether or not the Federal Circuit Court has effective power to re-transfer the proceedings to this Court. It is not necessary to be determined that at this point. It may or may not come to pass. That being so, I propose to exercise the power under s 32AB(1) to transfer these proceedings to the Federal Circuit Court of Australia and that that occurs as a matter of urgency. 20 It should be noted that a question arises as to the circumstances of urgency. Ms Tattersall, for the Minister, was not able to provide any undertaking that the Minister would not act on a previously stated intention to remove Mr Whittaker back to South Africa. There is no need for me to go into the reasons surrounding that. It suffices to simply observe the attitude of the Minister. That of itself does not really affect the question of law, but might be relevant to the question of whether or not it was preferable to transfer the proceedings as opposed to simply determining the proceedings. The fact of the existence of the proceedings in the Federal Circuit Court may well have some relevance to whether or not the Minister continues to act on his presently stated intention, but, as I say, that is presently not the subject of consideration. 21 In those circumstances, the orders I propose are: