AGT18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 526

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AGT18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 526

File number(s):	PEG 148 of 2024
Judgment of:	JUDGE CAMERON
Date of judgment:	8 May 2024
Catchwords:	MIGRATION – Application for injunctive relief – Bridging E Visa – Costs – Relevant considerations
Legislation:	Migration Act 1958 (Cth), pt.8, div.1
Cases cited:	Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division:	General
Number of paragraphs:	12
Date of hearing:	8 May 2024
Place:	Sydney
Counsel for the Applicants:	Mr Crowley
Solicitor for the Applicants:	AUM Legal
Counsel for the Respondent:	Mr Reilly
Solicitor for the Respondent:	Sparke Helmore Lawyers

ORDERS

PEG 148 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AGT18

First Applicant

AGU18

Second Applicant

AGV18 (and others named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	8 MAY 2024

THE COURT ORDERS THAT:

1.The applicants’ application for interlocutory relief be dismissed.

2.The parties bear their own costs of the application for interlocutory relief.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CAMERON

INTRODUCTION

1. This is a proceeding where the applicants have sought injunctive relief to support an application for a declaration and writs of mandamus and of prohibition in connection with the grant to them of Bridging E visas (subclass 050).  The application was lodged with the registry on 29 April 2024 but only accepted for filing earlier today, 8 May 2024.

2. The relevant factual background is that the applicants have been unsuccessful in applications for protection visas and were also unsuccessful on review before the Administrative Appeals Tribunal (Tribunal).  They applied to the Melbourne registry of this Court for judicial review of the Tribunal’s decision but their application was dismissed by the registrar on 5 February 2024 because they failed to attend a directions hearing.  On 6 March 2024 that order was set aside by consent.

3. On 12 March 2024 the applicants applied for Bridging E visas on the basis that they had judicial review proceedings on foot in the Melbourne registry of this Court.  On 10 April 2024, a delegate (Delegate) of the first respondent (Minister) granted the applicants Bridging E Visas which were to cease on 10 May 2024 and which did not provide working rights.

   PROCEEDING IN THIS COURT

4. It is unfortunate that it has been necessary, in the applicants' minds, to bring an urgent proceeding and I should also, on behalf of the Court, apologise to the parties for the dilatory approach of the registry in the dealing with this matter.  It apparently sat on the registry's desk for a week before it was brought to a judge's attention.  If handled as it should have been this application could have been dealt with more conveniently earlier and without today’s urgency, necessitated by the imminent expiry of the applicants’ bridging visas. 

5. It is understandable that the applicants were concerned that they would shortly become unlawful non-citizens, and I imagine that they are unfamiliar with, and perhaps suspicious of, the mechanisms of the Minister's department, which can sometimes be, to be generous, opaque. 

6. It does seem that the Delegate who granted the bridging visas in question made a mistake and misunderstood the nature of the visas being sought.  That that might have been remedied simply by conversations between the parties does not alter the fact that it appears to have been a mistake, as the Minister implicitly concedes by the granting, following a further visa application today, of fresh bridging visas which in effect substitute for the ones issued on 10 April 2024. 

7. New visas having been granted, this proceeding has become otiose.  The only remaining issue is costs.

8. The application which the applicants have brought to the Court is, in my view, notwithstanding the articulate and thoughtful arguments of Mr Crowley, not one which would have been likely to have been successful at the end of the day.  My reasons for that conclusion are based on the particular relief sought in the application, namely:

   1. A declaration that:

   1.1. the applicants hold Bridging E (class WE)(Subclass 050) visas that permit them to remain in Australia until 28 days after judicial review proceedings are completed; and;

   1.2.the applicants’ visas are not subject to Condition 8101 (no work).

   2. A writ of prohibition, directed to the respondent, prohibiting the respondent from taking any steps on the basis that the applicants’ visas expire on 10 May 2024 or that the visas are subject to Condition 8101.

   3. A writ of mandamus, directed to the respondent, requiring the respondent to issue bridging visa grant notices to the applicant correctly recording that their visas do not expire on 10 May 2024 and that they are not subject to Condition 8101 (no work)

9. The Court’s power in matters such as the present is to be found in Pt.8, div.1 of the Migration Act 1958 (Cth) and the cases which discuss those provisions, such as Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Relevantly, it is limited to determining whether the Delegate’s decision is vitiated by reason of jurisdictional error and, if it is, to issuing writs of certiorari and mandamus to have the Delegate’s decision quashed and the applicants’ application for visas determined according to law. Specifically it cannot:

   (a)declare that a visa application has been successful or the conditions to which such a visa was to be subject;

   (b)absent a relevant finding of jurisdictional error, prohibit the Minister from performing what would otherwise be a statutory duty to remove unlawful non-citizens from Australia; or

   (c)direct the Minister to issue particular visas or to specify the conditions to which such visas might be subject. 

10. I understand the applicants’ argument that the Delegate had one duty and one duty only and could be required by the Court to perform that duty, but the Court cannot do that before concluding that his decision is void for jurisdictional error and that is not the relief which the applicants have sought.  

11. The relief that they did seek would not be granted by the Court. 

    CONCLUSION

12. In all the circumstances, I think the best balance to be struck in this case is to order that the application be dismissed and that the parties bear their own costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       11 June 2024

SCHEDULE OF PARTIES

PEG 148 of 2024
Applicants
Fourth Applicant:	AGW18
Fifth Applicant:	AGX18