Anx19 v Minister for Home Affairs
[2020] FCCA 2933
•10 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANX19 v MINISTER FOR HOME AFFAIRS | [2020] FCCA 2933 |
| Catchwords: PRACTICE AND PROCEDURE – Applicant seeks leave to file a further amended application to rely on the Full Court of the Federal Court’s decision in EFX17 v Minister for Immigration and Border Protection (2019) 374 ALR 272 – the respondent in EFX17 had received special leave to appeal to High Court of Australia – application by respondent for adjournment of proceeding until the determination of High Court of Australia – whether adjournment in interests of justice – leave to file further amended application based on EFX17 granted to the applicant – proceeding adjourned pending the outcome of EFX17 in the High Court of Australia. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth) Migration Act 1958 (Cth), ss.501, 501CA |
| Cases cited: EFX17 v Minister for Immigration and Border Protection (2019) 374 ALR 272 BLD15 v Minister for Immigration and Border Protection [2017] FCA 72 |
| Applicant: | ANX19 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 323 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 10 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Flecknoe-Brown of Counsel |
| Solicitors for the Applicant: | Legal Aid Commission of New South Wales |
| Counsel for the Respondent: | Mr G. Johnson of Counsel |
| Solicitors for the Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Dispense with the need for the Applicant to file any Application in a Case seeking leave to file a Further Amended Application.
Dispense with the need for the First Respondent to file any Application in a Case seeking adjournment of the proceeding generally to abide determination by the High Court of Australia of the appeal from EFX17 v Minister for Immigration and Border Protection (2019) 374 ALR 272.
Grant leave to the Applicant to file and serve a Further Amended Application in the form initialled and placed with the papers within seven days.
Adjourn the proceeding for directions at 9:30am on the first Monday following the determination by the High Court of Australia of the appeal from EFX17 v Minister for Immigration and Border Protection (2019) 374 ALR 272.
Direct that the proceeding stand into the List of his Honour Judge Street with a view to it being allocated in the near future a final hearing date in or about mid-2021 on the assumption that the High Court of Australia will have delivered its judgment in the appeal from EFX17 v Minister for Immigration and Border Protection (2019) 374 ALR 272.
The costs of and incidental to the hearing of the two applications be costs in the cause.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 323 of 2019
| ANX19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction and Background
I am hearing two interlocutory applications:
a)one being in substance brought by the Applicant seeking leave to file a Further Amended Application taking advantage of the decision of the Full Court of the Federal Court of Australia in EFX17 v Minister for Immigration and Border Protection (2019) 374 ALR 272 (EFX17) and that the final hearing of the proceeding be heard as soon as possible; and
b)the other brought by the Respondent, the Minister for Home Affairs (Minister), seeking that any final hearing abide the result of the appeal from EFX17 in the High Court of Australia.
Mr Flecknoe-Brown of Counsel appeared for the Applicant and Mr G. Johnson of Counsel appeared for the Minister.
The Applicant in this proceeding was granted a Refugee (Class BA) (Subclass 200) visa (Refugee visa) on 15 January 1996 and is now aged 47 years of age.
On 21 July 2015, he was given a Notice of Intention to Consider Cancellation of his Refugee visa under s.501(2) of the Migration Act 1958 (Cth) (the Act) because of his substantial criminal record, having been sentenced shortly before that date to a term of imprisonment of 12 months or more.
Then on 22 May 2018 the Applicant’s Refugee visa was cancelled by the Minister.
Paragraphs [3] – [7] of the Written Submissions of Mr Flecknoe-Brown set out the claims made by the Applicant in support of the proposed Further Amended Application, as follows:
Background
3. The circumstances of this case involve a person who, while imprisoned for certain offences, was subject to mandatory cancellation of visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”). On about either or both of 22 and 30 May 2018, a delegate of the Minister caused a letter to be sent to the Applicant in prison, which letter purported to constitute the “notice” and “invitation” required by s 501CA(3) of the Act.
4. The Applicant says that, notwithstanding his signature on certain standard forms which purport to record receipt by him of that letter, he was precluded from retaining and reading that letter by reason of circumstances arising from his incarceration. He then again received a copy of that letter via prison internal mail on 11 September 2018, which evidently was the same document which he had previously been asked to sign for, but was then misplaced. Only then was he able to understand that his visa had been cancelled, by the fortuitous assistance of a corrections officer – but, critically not by reason of any action taken by the Minister pursuant to s 501CA(3) of the Act. The Applicant’s capacity to understand the letter, absent assistance, was impeded by his impaired vision, lack of written English language skills, and lack of any assistance given by the Minister.
5.The existing Amended Application (filed 7 June 2019) relies on one ground. The substance of that ground is that the manner in which the Minister delivered the letter mentioned above did not constitute an “invitation” for the purposes of s 501CA(3)(b) of the Act, because on the proper construction of s 501CA an invitation must be fair and effective in the circumstances in which it is made, i.e. it must be apt to actually permit the person concerned to make representations about whether the cancellation of his visa should be revoked – and the circumstances of this case meant that the Minister failed to give an invitation of that quality.
The proposed amendments and EFX17
6. The decision in EFX17 was made on 16 December 2019. In substance, the decision adopted the same reasoning as just described in relation to the construction of s 501CA(3)(b), but also construed s 501CA(3)(a) in a similar way i.e. that the “notice” as well as the “invitation” must have been real and meaningful. The Full Court also decided in the Appellant’s favour on a ground of lack of delegated power. Specific references are given below where relevant.
7. The proposed further amended Application is in evidence as Annexure NC-1 to the affidavit of Ms Cannon affirmed 7 September 2020. In summary, the proposed grounds are now as follows:
(1) The person who purportedly discharged the obligation to give the s 501CA(3) notice and invitation was a delegate, and there was no effective delegation in place. The argument on this ground is precisely the same as that in EFX17 at [143]-[163].
(2) The Minister was required to consider whether the form and method of delivery of the notice under s 501CA(3)(a) was “appropriate in the circumstances” but failed altogether to give any such consideration, following instead an evidently standard procedure applied to all s 501CA(3) cases. This argument draws on EFX17 at [81], although the Full Court at [133] did not need to determine whether there was any complete failure to consider these matters.
(3) The way of giving the s 501CA(3)(a) notice which the Minister’s delegate adopted did not meet the required irreducible minimum standard, taking into account the Applicant’s particular circumstances: see EFX17 at [89], [133]-[135]. The Applicant’s particular circumstances here are necessarily different from those of the Applicant in EFX17, but it is submitted the same result should be reached.
(4) For substantially the same reasons, the way of giving the s 501CA(3)(b) “invitation” did not meet the irreducible minimum standard of ensuring that the Applicant was invited to make representations about revocation: see EFX17 at [88], [90]-[91], [136]-[141].
I further note that the Minister, by letter dated 13 November 2018 from Ms Cannon of the Legal Aid Commission of New South Wales on behalf of the Applicant, was requested to revoke the cancellation of the Applicant’s Refugee visa. Ms Cannon attached various documents in support of this request, including a Statement of the Applicant regarding the circumstances surrounding his receipt of the invitation to comment and documents detailing his criminal history (revocation request).
By letter dated 9 January 2019 a Delegate of the Minister responded to the revocation request by stating that it was invalid because it had been received more than 28 days after the permitted time for the lodgement of such a request.
Application to this Court
On 15 February 2019 an Application was filed in this Court seeking to impugn the said decision of the Delegate and on 7 June 2019 an Amended Application was filed.
On 16 December 2019 the Full Court of the Federal Court of Australia delivered its decision by majority in EFX17 and on 3 July 2020 the High Court of Australia granted special leave to the Minister to appeal EFX17.
By email dated 14 August 2020 from Ms Cannon the Applicant’s wish to file a Further Amended Application was foreshadowed, which was said to rely on the Full Court’s decision in EFX17.
I note that the Minister, in reality, does not oppose the Applicant having leave to file the Further Amended Application but earnestly seeks that it not be heard and determined before the High Court’s determination of the appeal from the Full Court in EFX17.
Consideration
The Applicant’s ideal position, it would seem, would be that the Court grant leave to him to rely on the Full Court’s decision of EFX17 and then have a decision in this Court as soon as possible, perhaps even before the decision of the High Court in EFX17. However, Mr Flecknoe-Brown responsibly understands and accepts the practical difficulties caused by the disruption to the Court’s business due to the COVID-19 virus and my advice to him that every Judge of this Court has hundreds of matters in their list, many of which have been adjourned this year and were not able to be heard although having been set down for a final hearing.
The Applicant is currently in detention and on any basis that is an important consideration which I should, and which I do, take into account. On the other hand, even if there were to be a final hearing tomorrow based on the Full Court’s decision in EFX17 as representing the law of the land and before the decision of the High Court on the appeal, that would not immediately, in effect, spring the Applicant from jail and it appears to be common ground that he would remain there. So the benefit to the Applicant in having an earlier rather than a later determination would be that the process by which he might come to be released from detention is commenced sooner rather than later. I take these issues into account.
It is not uncommon in the heavily contested area of migration law for Judges to adjourn hearings until an application for special leave from a decision of a Court which might be regarded as binding has been determined in the High Court of Australia.
In BLD15 v Minister for Immigration and Border Protection [2017] FCA 72 (BLD15), Katzmann J in the Federal Court was considering an application by the Minister to adjourn a matter pending the hearing of an application for special leave to appeal to the High Court in a separate case and in which the decision of the High Court would either be determinative or highly influential in terms of a consideration of the issues in BLD15. In that case also, as here, the applicant was seeking to avail himself of a point which would be determinative or influential and from which the Minister was wishing to seek special leave.
At [4] – [5] and [10] – [11] of BLD15 her Honour said as follows:
[4] As the notice of appeal is presently cast, the judgment in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 is irrelevant. However, the appellant proposes to amend the notice of appeal to raise a similar point and I will grant him leave to do so. The Minister does not oppose the amendment but he seeks an adjournment of the appeal until the High Court has either dismissed the special leave application in Singh or, if special leave is granted, disposed of the appeal.
[5] The appellant opposes the Minister’s application. He wishes to have the appeal dealt with on the basis of the law as pronounced by the Full Court. He also wishes to have the existing grounds of appeal considered by this Court.
[10] But the present situation is not analogous. Cases in which an adjournment is sought to enable a proposition established in a decided case to be tested on appeal have been treated differently. That is understandable. Unlike a legislative change, a decision on appeal does not usually change the law; it merely determines or clarifies its meaning. Furthermore, the uncertainty attending a foreshadowed legislative change is lacking on an appeal, especially in an appeal to the highest court in the land. As Mason P explained in Meggitt Overseas Limited v Grdovic [1998] 43 NSWLR 527 at 534, albeit obiter:
The reason why a pending appeal is different from a proposal for legislative amendment is that there is a level of certainty that the point will be addressed and knowledge that, if and when it is, the decision of the court higher in the appellate chain will declare the law on the relevant topic with retrospective effect …
[11] Similarly, in Thornton v Repatriation Commission [1981] 52 FLR 285 at 292, Fisher J distinguished the position where an adjournment is sought pending “clarification or settling of the law by the highest tribunal in the country”.
Further, at [17] and [23] of BLD15, her Honour stated:
[17] I do not accept the argument. It seems to me that it would not be an efficient use of the judicial and administrative resources of the Court to proceed to hear and determine the appeal knowing that there is an appeal or an application for special leave to appeal pending in the High Court, the outcome of which could determine once and for all a point that could be decisive in this case.
[23] As I have said, taking all relevant matters into account, the interests of justice favour granting the Minister’s application. The overarching purpose of the civil practice and procedure provisions will best be facilitated by taking that course. Accordingly, I stand the matter over for directions at 9.30 am on the first Monday after the application for special leave has been dismissed, or the appeal has been determined.
In this case the Minister’s position is a little stronger on the face of it than it was in BLD15, because here special leave has actually been granted by the High Court to appeal from the Full Court’s decision, which means that it is as certain as is possible that the High Court will hear and determine the appeal. It is not possible, of course, to be certain about when that appeal will be heard. However, the best estimate would seem to be, from what Mr Flecknoe-Brown has been able to glean and tell me this morning, that the appeal will probably be heard by December this year, and then one could assume there to be, in the usual course, a judgment three or four months later.
Each case depends on its own particular facts and the evaluation by the Judge in his or her discretion about where the interests of justice lie. It would be invidious and wrong of me to assess any prospects of success for the Minister in the appeal in EFX17, but it is obvious that it must be regarded as a serious appeal, particularly because Mr G. T. Johnson SC for the Minister in the High Court on the special leave application was not called on to give oral submissions, and there was a dissenting judgment of Logan J in EFX17.
So we face a situation where, within a reasonably foreseeable period of time, there will be a determination of whether EFX17 represents the law of the country or not.
The decision of the High Court will likely, at the very least, determine the grounds that will appear in the Further Amended Application relying upon EFX17. It seems to me that it would not be doing justice to either party if I were to allow an amendment based on EFX17 and then at the same time permit, even if it were possible having regard to the backlog of cases in this Court, the final hearing of this case to take place when the correctness of EFX17 is under challenge in the High Court. In other words, in my view it would not be fair to either party to allow this case to be heard and finally disposed of on the basis of EFX17 with the appeal from EFX17 pending in the High Court.
Conclusion
In the my view the interests of justice require the resolution of the issues before me to be as follows, namely:
a)grant leave to the Applicant to file a Further Amended Application; and
b)adjourn the case until seven days after the delivery of judgment by the High Court in EFX17.
In those circumstances I will grant leave to the Applicant to file the Further Amended Application and I will make orders to adjourn the proceeding.
A Further Matter
I have indicated to the parties that I would regard it as unsatisfactory in the circumstances for the matter simply to go back into the Court list generally to abide some further indeterminate allocation to a new Judge.
I have made enquiries and I will refer this matter to his Honour Judge Street’s list, with his agreement, on the understanding that he will shortly allocate a final hearing date in this matter at some time around mid-2021.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 29 October 2020
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