CQX18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: PERRAM J
• Judgment Date: 22 March 2019
• Neutral Citation: [2019] FCA 386
• Date: 22 March 2019

FEDERAL COURT OF AUSTRALIA

CQX18 v Minister for Home Affairs [2019] FCA 386

Appeal from:	Application for judicial review: CQX18 v Minister for Home Affairs [2018] FCCA 2015
File number:	NSD 1897 of 2018
Judge:	PERRAM J
Date of judgment:	22 March 2019
Catchwords:	MIGRATION – application for review of decision of Federal Circuit Court – where Federal Circuit Court Judge dismissed application for review of decision of Minister for Home Affairs – where reasons given ex tempore and written version not published until 54 days after expiry of appeal period – consideration of whether late publication constituted jurisdictional error – whether writs should issue where applicant could apply for leave to appeal out of time ; PRACTICE AND PROCEDURE – where individual Federal Circuit Court Judge named as Respondent – where ‘The Judges of Federal Circuit Court of Australia’ named as Respondent – consideration of proper respondents –directions made to remove and substitute respondents
Legislation:	Federal Circuit Court of Australia Act 1999 (Cth) s 8 Federal Court of Australia Act 1976 (Cth) ss 4, 24 Judiciary Act 1903 (Cth) s 39B Federal Circuit Court Rules 2001 (Cth) r 16.02 Federal Court Rules 2011 (Cth) rr 36.03, 36.05
Cases cited:	Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 Calvin v Carr [1980] AC 574 CLU16 v Minister for Home Affairs [2019] FCA 147 Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; 305 ALR 534 Craig v South Australia [1995] HCA 58; 184 CLR 163 Deva v University of Western Sydney [2011] FCA 199 Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195; 223 FCR 441 Palmer v Clarke (1989) 19 NSWLR 158 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 Warrell v Fair Work Commission (No 2) [2013] FCA 402
Date of hearing:	22 January 2019
Date of last submissions:	10 February 2019 (Applicant) 5 March 2019 (Third Respondent)
Registry:	New South Wales
Division:	General Division
National Practice Area:	Delete these rows - not required
Category:	Catchwords
Number of paragraphs:	28
Counsel for the Applicant:	Mr VA Kline
Solicitor for the Applicant:	Salvos Legal Humanitarian
Counsel for the Third Respondent:	Mr G Johnson
Solicitor for the Third Respondent:	HWL Ebsworth Lawyers
Counsel for the First, Second and Fourth Respondents:	The First, Second and Fourth Respondents filed submitting notices save as to costs

ORDERS

		NSD 1897 of 2018
BETWEEN:	CQX18 Applicant
AND:	THE HONOURABLE ALEXANDER STREET, A JUDGE OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA First Respondent ; THE JUDGES OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA Second Respondent ; MINISTER FOR HOME AFFAIRS Third Respondent ; IMMIGRATION ASSESSMENT AUTHORITY Fourth Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	22 March 2019

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

THE COURT DIRECTS THAT:

2. The First and Fourth Respondents be removed as separate parties to the proceedings.

3. The Second Respondent be changed to ‘The Federal Circuit Court of Australia’.

4. The Third Respondent become the First Respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1. This is an application for writs of certiorari and mandamus addressed to Judge Street (the First Respondent), the Judges of the Federal Circuit Court of Australia (the Second Respondent) and the Minister for Home Affairs (the Third Respondent). It should be dismissed with costs. The question the case presents is whether the Federal Circuit Court of Australia (‘Federal Circuit Court’) acts outside the jurisdiction conferred on it by Parliament where, having made orders to dismiss a case and having given oral reasons at the same time for doing so, the judge dealing with the case does not then produce a written version of those reasons for a substantial period of time after the time to appeal the decision has expired. A secondary question is whether, assuming that to be so, it would be appropriate to grant a writ of certiorari where a mechanism still lies to bring an application for leave to appeal to this Court.

A Preliminary Matter

2. As it presently stands, the First Respondent to the application is named as ‘The Honourable Alexander Street, A Judge of the Federal Circuit Court of Australia’, the Second as ‘The Judges of the Federal Circuit Court of Australia’, the Third as the Minister for Home Affairs and the Fourth as the Immigration Assessment Authority. There are two issues with this list.

3. First, Judge Street should be removed as a respondent. Whilst understandable, because Judge Street is the judge who exercised the jurisdiction of the Federal Circuit Court in the case at hand, the naming convention adopted by the Applicant is not appropriate. This proposition is derived from s 8(4) of the Federal Circuit Court of Australia Act 1999 (Cth) (‘Federal Circuit Court Act’) which provides that the Federal Circuit Court ‘consists’ of its Chief Judge and the other Judges holding office ‘from time to time’. Consequently, it has no separate legal personality from its Chief Judge and the other Judges of whom it entirely and only exists. No question of whether the Court is an officer of the Commonwealth therefore arises because ‘the Court’ is merely a useful shorthand for ‘The Chief Judge of the Federal Circuit Court and the Judges from time to time holding office in that Court’ all of whom are officers of the Commonwealth amenable to relief under s 39B of the Judiciary Act 1903 (Cth).

4. This is certainly the procedure adopted in relation to other inferior tribunals which are said to ‘consist’ of their members. Thus the proper respondent in an application for writs of certiorari and prohibition against the former Refugee Review Tribunal is ‘The Refugee Review Tribunal’ and not the Tribunal member making the decision: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 at 310 [43] per McHugh J, 325 [91] per Gummow J, 341 [153] per Kirby J, and 347 [180] per Hayne J. The same is true of the Fair Work Commission: Deva v University of Western Sydney [2011] FCA 199 at [23]; see also the comprehensive review of the authorities in this intriguing area by Flick J in Warrell v Fair Work Commission (No 2) [2013] FCA 402 at [3]. The slight twist here perhaps is that the Federal Circuit Court is an inferior court and not an inferior tribunal but, at least for present purposes, that distinction is immaterial (cf Craig v South Australia [1995] HCA 58; 184 CLR 163 at 176-177 [11]). Accordingly, there is no reason for Judge Street to be an individual respondent to the application for relief.

5. S...