Can FCCA judicially review Protection Obligation Evaluations?

Federal Court: according to a previous decision of the Full Court in SZQDZ, an Independent Merits Review was not a "migration decision" for the purposes of s 477 of the Migration Act 1958. A subsequent decision of the High Court in SZSSJ held that an International Treaties Obligations Assessment was a "migration decision". The question to the FCA was whether SZSSJ overruled SZQDZ to the effect that a Protection Obligation Evaluation was a "migration decision", thus reviewable by the Federal Circuit Court and with a 35-day filing limitation.

Summary and discussion

The Applicant arrived in Australia as an unauthorised maritime arrival and was thus barred under s 46A(1) of the Migration Act 1958 from making a valid visa application while in Australia, unless the Minister waived that bar under s 46A(2).

An officer of the Department conducted a Protection Obligations Evaluation (POE) for the purposes of advising the Minister whether the Minister should intervene, be it by waiving the bar or, alternatively, by granting the Applicant a visa under s 195A.

About 2 years after the POE was finalised, the Applicant applied to the Federal Circuit Court (FCCA) for judicial review of the POE. The FCCA dismissed that application on the basis that it had been filed more than 35 days after the date of the POE and that it was not in the interests of the administration of justice to allow a late application.

The Applicant applied to the Federal Court (FCA) for judicial review of the FCCA's decision under s39B of the Judiciary Act 1903 (Cth). The Applicant argued that the POE was not a "migration decision" as defined under s 5(1), with the result that s 477(1), which requires that applications to the FCCA for judicial review in relation to migration decisions be made within 35 days of the date of the "migration decision", did not apply to the Applicant.

With respect, although this does not seem to have been picked up by the FCA decision, if the POE was not a "migration decision", s 476(1) of the Act would not be satisfied, with the result that the FCCA would not have the same original jurisdiction in relation to the POE as the High Court (HCA) has under paragraph 75(v) of the Constitution, which would defeat the Applicant's application to the FCCA.

In any event, the FCA was asked to decide whether the decision of the HCA in SZSSJ had overruled the earlier decision of the FCA's Full Court (FCAFC) in SZQDZ.

In SZQDZ, the FCAFC had held that a decision of an Independent Merits Review (IMR) was not a "migration decision". Subsequently, the HCA held in SZSSJ that an International Treaties Obligations Assessments (ITOA) was a "migration decision".

Thus, the question to the FCA was: has the HCA's decision (about an ITOA) overruled the FCAFC's decision (about an IMR), to the effect that an IMR is a "migration decision"?

Given that the Applicant accepted that a POE was substantially identical to an IMR, if the answer to the above question is 'yes', the result would be that a POE is also a "migration decision". If that is the case, the FCCA would have jurisdiction and the application to it would need to be made within 35 days of the date of the POE unless that requirement was waived by the FCCA. Otherwise, the FCCA would have no jurisdiction.

The FCA held as follows...

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