AOB18 v Minister for Home Affairs (No.2) and FVZ18 v Minister for Home Affairs and FWB18 v Minister for Home Affairs
[2019] FCCA 1253
•16 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOB18 v MINISTER FOR HOME AFFAIRS (No.2) and FVZ18 v MINISTER FOR HOME AFFAIRS and FWB18 v MINISTER FOR HOME AFFAIRS | [2019] FCCA 1253 |
| Catchwords: MIGRATION – Application for extension of time to review the Minister’s decision to revoke the lifting of the s.46A bar pursuant to s.46A(2C) of the Act –Applicants failed to lodge a protection visa application prior to deadline – whether the Minister was obliged to and did afford the Applicant procedural fairness before exercising his revocation power – whether the legislative scheme of the Act in s.46A(2C) provided the necessary intendment to displace the implied presumption of procedural fairness – extension of time granted – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 474, 477 |
| Cases cited: AOB18 v Minister for Home Affairs [2018] FCCA 2748 CLM18 v Minister For Home Affairs & Anor [2019] FCCA 1106 |
| Applicant: | AOB18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 3018 of 2018 |
| Applicant: | FVZ18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 3137 of 2018 |
| Applicant: | FWB18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 3139 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 4 April 2019 |
| Date of Last Submissions: | 4 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2019 |
REPRESENTATION
SYG 3018 of 2018
| Counsel for the Applicant: | Mr J F Gormly |
| Solicitors for the Applicant: | Mr S Klotz, Hall & Wilcox |
| Counsel for the Respondent: | Ms J Davidson |
| Solicitors for the Respondent: | Ms H Dejean, Australian Government Solicitor |
SYG 3137 of 2018
| Counsel for the Applicant: | Mr J F Gormly |
| Solicitors for the Applicant: | Mr S Klotz, Hall & Wilcox |
| Counsel for the Respondent: | Ms J Davidson |
| Solicitors for the Respondent: | Ms H Dejean, Australian Government Solicitor |
SYG 3139 of 2018
| Counsel for the Applicant: | Mr J F Gormly |
| Solicitors for the Applicant: | Mr S Klotz, Hall & Wilcox |
| Counsel for the Respondent: | Ms J Davidson |
| Solicitors for the Respondent: | Ms H Dejean, Australian Government Solicitor |
ORDERS
SYG 3018 of 2018
THE COURT ORDERS THAT:
The time in which the Applicant makes the application be extended to 26 October 2018 pursuant to s.477(2) of the Migration Act 1958 (Cth).
The application be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $6,000.
SYG 3137 of 2018
THE COURT ORDERS THAT:
The time in which the Applicant makes the application be extended to 9 November 2018 pursuant to s.477(2) of the Migration Act 1958 (Cth).
The application be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $6,000.
SYG 3139 of 2018
THE COURT ORDERS THAT:
The time in which the Applicant makes the application be extended to 9 November 2018 pursuant to s.477(2) of the Migration Act 1958 (Cth)
The application be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3018 of 2018
| AOB18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
SYG 3137 of 2018
| FVZ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
SYG 3139 of 2018
FWB18
Applicant
And
MINISTER FOR HOME AFFAIRS
Respondent
REASONS FOR JUDGMENT
Introduction
These three proceedings raise three identical grounds of review, and have been heard together. Each of the Applicants in these proceedings entered Australia by boat as an unauthorised maritime arrival (UMA). Each Applicant claims that he is a non‑citizen in Australia to whom Australia has protection obligations under sub-ss.36(2)(a) and (aa) of the MigrationAct1958 (Cth). In each case, the Respondent, the Minister for Home Affairs, pursuant to s.46A(2) of the Act, lifted the s.46A(1) bar that otherwise prevented the Applicant from being able to make a valid application for a protection visa. Each of the Applicants challenges the validity of a subsequent decision of the Minister made on 19 September 2017, pursuant to s.46A(2C) of the Act revoking his earlier determination to lift the bar in respect of each of the Applicants (Revocation Decision). The Applicants contend that the Revocation Decision was subject to procedural fairness and was not exercised in a way that afforded them procedural fairness. I set out in further detail below the individual circumstances of each Applicant.
The principal ground of review raised in each of these proceedings – ground 3 – is the same ground argued by counsel for the Applicants in another matter in which I had reserved judgment at the time I heard these three proceedings. I have since delivered judgment in CLM18 v Minister For Home Affairs & Anor [2019] FCCA 1106. Counsel before me agreed that the Applicants’ cases in these three proceedings turned on the success of ground 3. In CLM18, I dismissed the equivalent ground to ground 3 in the present proceedings.
The circumstances of the three Applicants in these three proceedings, AOB18, FVZ18 and FWB18, do not lead to different findings or conclusions than I reached in CLM18. It follows that for the reasons I set out below, and as I reference CLM18, ground 3 of each of the Applicants’ grounds of review fails. Consequently, each of the remaining grounds must fail. Accordingly I will dismiss each of the applications.
Background facts
Save as to varying dates, the circumstances of the three Applicants are relevantly the same. Below I first set out the general circumstances applicable to all three Applicants, and then detail the particular dates relevant to each Applicant. A more detailed discussion of the circumstances relating to the s.46A(1) bar is set out in CLM18 at [27], [39], [40], [44], [46], and [57] to [67].
Each of the three Applicants arrived in Australia as an UMA between 13 August 2012 and 1 January 2014. As UMAs, each of the Applicants was barred from lodging an application for a protection visa by operation of s.46A(1) of the Act. During 2015, the Minister made a series of determinations pursuant to s.46A(2) of the Act lifting the bar for UMAs who arrived and entered Australia in that 2012 to 2014 period. Prospective applicants were then notified in writing, and invited to apply for a Temporary Protection Visa (TPV) or a Safe Haven Enterprise Visa (SHEV) (Invitation Letter). The Department of Immigration and Border Protection subsequently sent two letters to each Applicant, reminding them to lodge their applications, within 60 days (in the case of AOB18’s first letter), or by the 1 October 2017 deadline (in the case of FWB18’s and FVZ18’s first and second letters, and AOB18’s second letter) (Reminder Letters).
On 19 September 2017, the Minister agreed to revoke his bar lift determinations pursuant to s.46A(2C) of the Act (see CML18 at [39], [44], [57]-[67]), with the revocation stated to take effect on 1 October 2017. By reason of the matters I describe in CLM18 at [40], the date from which the applications were prevented was in fact 4 October 2017 (Deadline). The Department sent a third letter to each of the Applicants, notifying each of them that the Minister had made a decision under s.46A(2C) to revoke the s.46A(1) bar (Last Notice Letter). Each Applicant failed to lodge a protection visa application by the Deadline.
The Invitation Letter, the first Reminder Letter, the second Reminder Letter, and the Last Notice Letter sent to each of the Applicants in these three proceedings are in relevantly similar terms as the first letter, the third letter, fifth letter and the sixth letter I describe in CLM18, save for the addressee details, and accompanying translation into the nominated first language of the respective applicant.
In the period between December 2017 and January 2018, each Applicant lodged a SHEV application (first SHEV application) with the assistance of the Refugee Advice and Casework Service (RACS). (I note that in his grounds of review Applicant AOB18 states that his first application was for a TPV. Nothing turns on this and I use the term “first SHEV application” to refer to the first application for a SHEV or a TPV.) Subsequent to each lodgement, the Department wrote to each Applicant, informing him that his SHEV application was invalid (first Notification). RACS wrote to the Department separately on behalf of each Applicant, seeking to withdraw that Applicant’s first SHEV application. In each case, the Department notified the relevant Applicant that their first SHEV application could not be withdrawn as the application was invalid. RACS subsequently assisted each Applicant to lodge a second SHEV application. The Department notified each Applicant that their second SHEV application was also invalid by operation of s.46A(1) of the Act (second Notification).
AOB18
Applicant AOB18 is a male citizen of Sri Lanka. On 17 September 2012, AOB18 arrived in Australia, at Cocos Island. On 31 August 2015, the Department sent AOB18 an Invitation Letter, inviting him to apply for a TPV or a SHEV. On 25 January 2017 the Department sent AOB18 a first Reminder Letter requiring him to lodge an application within 60 days. On 30 March 2017, AOB18 was sent a second Reminder Letter reminding him to apply by 1 October 2017.
On 7 September 2017, AOB18 was detained, pursuant to s.189 of the Act, in Immigration Detention at Villawood. He remains in detention.
On 8 September 2017, in a telephone conversation between an officer of the Department and AOB18, the officer reminded AOB18 to lodge his application by the 1 October 2017 deadline. On 20 September 2019, an officer of the Department met with AOB18 and stressed the urgency of lodging his application. On 22 September 2017, AOB18 was provided with a Last Notice Letter and on 25 September 2017 he signed an acknowledgement that he had received a last notice of the 1 October 2017 deadline. AOB18 did not lodge an application by the Deadline.
By email on 27 December 2017, RACS, on behalf of AOB18, submitted a statement of protection claims and a SHEV application form (As I have said above, whilst RACS’ cover letter refers to a SHEV, AOB18’s grounds of review refer to a TPV). On 8 January 2018, the Department informed AOB18 by a first Notification that the first SHEV application was invalid by operation of s.46A of the Act. On 12 October 2018, RACS wrote to the Department seeking to withdraw the first SHEV application. By email dated 16 October 2018, an officer of the Department notified AOB18 that the application could not be withdrawn as the application is invalid. On 17 October 2018, AOB18 submitted his second SHEV application to the Department. On 18 October 2018, the Department provided AOB18 with the second Notification.
I apprehend that during much of 2018 AOB18 was engaged in pursuing other proceedings in this Court before his Honour Judge Nicholls, which resulted in his Honour’s decision delivered on 26 September 2018 in AOB18 v Minister for Home Affairs [2018] FCCA 2748, upholding the Minister’s Notice of Objection to competency, and dismissing AOB18’s application.
FVZ18
Applicant FVZ18 is a male citizen of Iran. He arrived in Australia at Christmas Island on 4 July 2013. On 19 July 2016, FVZ18 was send an Invitation Letter and was invited to apply for a TPV or a SHEV. On 9 June 2017, FVZ18 was sent a first Reminder Letter, informing him that he must apply by 1 October 2017. On 8 September 2017, the Department sent FVZ18 a second Reminder Letter reiterating the need to apply by the 1 October 2017 deadline. On 21 September 2017, FVZ18 was sent a Last Notice Letter. FVZ18 did not lodge an application by the Deadline.
By letter dated 22 December 2017, RACS wrote to the Department on behalf of FVZ18 submitting, inter alia, his first SHEV application. On 2 January 2018, the Department sent FVZ18 a first Notification. On 23 October 2018, RACS wrote to the Department on behalf of FVZ18 seeking to withdraw the first SHEV application. By email dated 24 October 2018, an officer of the Department notified the Applicant that the application could not be withdrawn as the application had been found to be invalid. On 26 October 2018, RACS lodged a second SHEV application on behalf of FVZ18. On 31 October 2018, in a second Notification, the Department informed FVZ18 that the second SHEV application was also invalid.
FWB18
Applicant FWB18 is a male citizen of Afghanistan. He arrived in Australia at Christmas Island on 7 September 2013. The Department sent FWB18 an Invitation Letter dated 20 September 2016. As is the case with FVZ18, FWB18 received a first Reminder Letter dated 9 June 2017 and a second Reminder Letter dated 8 September 2017 advising that he must lodge a TPV or a SHEV before 1 October 2017. The Department sent a Last Notice Letter to FWB18 dated 22 September 2017.
In about October or November 2017, FWB18 was taken into immigration detention. He was released into the community on a bridging visa in early 2018.
By letter dated 23 January 2018, RACS wrote to the Department on behalf of FWB18 providing FWB18’s first SHEV application. On 24 January 2018, by a first Notification, an officer of the Department notified FWB18 that his SHEV application was invalid. On 23 October 2018, RACS wrote to the Department seeking to withdraw the first SHEV application dated 23 January 2018. By a response email dated 24 October 2018, an officer of the Department responded that the first SHEV application could not be withdrawn. On 26 October 2018 RACS lodged a second SHEV application on behalf of FWB18. On 31 October 2018, the Department provided him with the second Notification.
Applications and grounds of review
Relief sought
The Applicants seek substantially identical relief. In his application filed 9 November 2018, FWB18 seeks the following final orders (without alteration):
1. A declaration that the decision of the respondent made on 19 September 2017 under s 46A(2C) of the Act to revoke his decision to lift the bar under s 46A(1) to allow the applicant to apply for a protection visa is contrary to law and invalid.
2. A writ of mandamus requiring the respondent to administer according to law the applicant's Notice of Withdrawal of his first SHEV application lodged with the Department of Home Affairs on about 23 October 2018.
3. A writ of mandamus requiring the respondent to determine according to law the applicant's application for a Safe Haven Enterprise (subclass 790) visa made on 26 October 2018.
4. That the respondent pay the applicant's costs.
5. Any further orders as the Court sees fit.
The applications filed by AOB18 and FVZ18 seek substantially the same orders (varying principally as to dates and descriptions of the visa applications as a TPV/SHEV) as set out above.
In sum, the Applicants each seek a declaration that the Minister’s Revocation Decision was invalid, that the Minister be directed to withdraw each Applicant’s first SHEV application, and that the Minister determine each Applicant’s second SHEV application according to law.
Grounds of review
The Applicants raise three grounds of review which are relevantly the same, excepting variations in dates, and a reference in AOB18 to him filing an application for a TPV, whilst FWB18 and FVZ18 each filed for a SHEV. By way of example, I have set out the ground relating to FWB18 below (without alteration, save for the addition of emphasis in bold and defined term in square brackets):
1. That the first decision made 24 October 2018 refusing to withdraw the applicant's application for a Safe Haven Enterprise (subclass 790) visa (SHEV) on the grounds that that this first SHEV application was invalid because it did not meet s 46A(1) of the Migration Act 1958 was affected by jurisdictional error because s 46A(1) did not apply to the applicant.
Particulars
a. The applicant repeats the particulars of Ground 2.
2. That the second decision made on 31 October 2018 not to recognize as valid the applicant's application for a Safe Haven Enterprise (subclass 790) visa made by the applicant on 26 October 2018 because it did not meet s 46A(1) of the Migration Act 1958 (the Act) was affected by jurisdictional error because s.46A(1) did not apply to the applicant.
Particulars
a. Sometime prior to 19 September 201 7 the respondent Minister decided to lift the bar under s 46A(l) of the Act which had applied to the applicant preventing him from making a valid application for a visa.
b. This decision to lift the s 46A(1) bar has not been validly revoked: see Ground 3.
c. As the applicant's second application for a Safe Haven Enterprise (subclass 790) visa is a valid application, s 47 of the Act requires the respondent Minister to consider it.
3. The decision of the respondent Minister on 19 September 2017 to revoke his decision to lift the s 46A bar against the applicant [Revocation Decision] was invalid, this revocation decision being affected by jurisdictional error in that the respondent had failed to afford procedural fairness to the applicant before making the revocation decision.
Particulars
a. The rules of natural justice applied to the exercise of the respondent Minister's revocation power under s 46A(2C) as that section conferred a power to 'destroy, defeat or prejudice the rights, interests or legitimate expectations' the applicant had obtained by the exercise of the respondent Minister's power to lift the bar under s 46A to allow him to apply for a visa.
b. The applicant was not given an opportunity to be heard on why the revocation decision should not be exercised in his case.
c. The respondent nevertheless made the revocation decision upon advice that it was 'impractical' to afford procedural fairness to those affected by the decision.
It is common ground between the parties that the Applicants are seeking judicial review of the following 3 “decisions” (in chronological order):
(a)decision made by the Minister pursuant to s.46A(2C) of the Act on 19 September 2017, revoking his earlier decision to lift the bar in respect of the Applicants under s.46A(2) of the Act (I have referred to this as the Revocation Decision, noting that it is the same decision as that so named in CLM18);
(b)purported decision contained in a letter/email from an officer of the Department stating that each Applicant’s second SHEV application could not be withdrawn as the SHEV application had been found to be invalid (in the case of AOB18, email dated 16 October 2018, in the cases of FVZ18 and FWB18, email dated 24 October 2018.) I say “purposed decision” because Ms Davidson, Counsel for the Minister so submits. Nothing turns on whether this communication is or is not a decision within the Act.
(c)decision made by the Department that each Applicant’s second SHEV application was invalid, in the case of AOB18, second Notification dated 18 October 2018, in the cases of FVZ18 and FWB18, second Notification dated 31 October 2018);
The relevant legislative provisions are set out in CLM18 at [15]-[24], [27].
It is common ground that the Revocation Decision is a migration decision and a privative clause decision as defined in s.474(2) of the Act and that the Court has jurisdiction to review the Revocation Decision.
Application for extension of time
The Applicants each seek an extension of time to file an application in this Court to seek judicial review of the Revocation Decision (in identical terms save for the type of visa applied for, and the dates of application for the visas). In each case, the Applicant AOB18, FVZ18 and FWB18 say (without alteration):
1. The availability of mandamus in respect of the applicant's withdrawal of his [TPV or SHEV] application and the Minister's consideration of his SHEV application depend on the Court's determination of the validity of the Minister's s 46A(2C) revocation decision.
2. The Minister did not notify the applicant of the s 46A(2C) revocation decision, nor did the Minister give the applicant any information about possible judicial review of the revocation decision.
3. An extension of time would not prejudice the respondent.
There was significant delay between the date on which the Revocation Decision was made and the filing of the judicial review applications in this Court. Each Applicant filed their application for judicial review on 9 November 2018, approximately a year after the date on which the Revocation Decision was made, although they only sought to withdraw their respective first SHEV applications variously on 12 and 23 October 2018.
Counsel for the Applicant, Mr Gormly, submits that by withdrawing the Applicants’ first SHEV applications, each of the Applicants has commenced a proceeding in time, at least in respect of grounds 1 and 2. He says that the practical need to challenge the Revocation Decision arose upon the Department’s declaration of the invalidity of each second SHEV application, hence causing delay in seeking relief in respect of the Revocation Decision. Mr Gormly also submits that the Applicants avoided a multiplicity of related proceedings by waiting until they each received their second Notification before seeking relief in respect of the Revocation Decision.
Mr Gormly, however, concedes that, in the circumstances of these three proceedings, s.477(1) of the Act requires the Court to extend time to allow the Applicants each to apply for the declaratory relief sought in respect of the Revocation Decision. He contends that the substantive applications have merit, there would be no prejudice to the Minister if time were to be extended, and that the Applicants should not be deprived of their right to appeal to the Federal Court in these circumstances which would be the result if I refused the extension of time.
By way of some explanation, medical evidence of AOB18 and FWB18’s mental incapacity to engage with the protection visa process and lodge a TPV or SHEV application prior to obtaining legal representation was annexed to Mr Klotz’s affidavits affirmed 11 February 2019 and 30 March 2019 respectively.
The Minister opposes the application for extension of time to challenge the Revocation Decision.
Ground 2 of each of the applications for extension of time primarily contends that the Minister did not notify the Applicants of the Revocation Decision. However, Ms Davidson points to the two Reminder Letters and the Last Notice Letter which notified the Applicants of the Revocation Decision.
Whilst I do not consider that very cogent reasons have been put as to why the Applicants delayed, and I accept Ms Davidson is correct that each Applicant was notified of the impending Revocation Decision several times, in circumstances where ground 3 had not been tested in this Court before I delivered judgment in CLM18, which was shortly after I heard these three matters, I will grant the extension of time sought in each matter up until the date of filing of the respective application.
By agreement, the parties argued the matters fully before me, and accordingly I have heard and determined these proceedings on a final basis.
These proceedings
As I have adverted to above, grounds 1 and 2 of the grounds of review of each of the Applicants stand or fall with ground 3: each of grounds 1 and 2 expressly relies on the success of ground 3, and the relief sought also indicates that success in relation to the challenge to the Revocation Decision is critical.
Unlike the present applications, the circumstance giving rise to CLM18 was the notification of a decision by the Department to remove applicant CLM18 from Australia. In those circumstances, ground 1 of the grounds of review articulated in the application made by CLM18 was less defined than the subsequent articulations of ground 3 in these proceedings. Ground 1 and the particulars to ground 1 considered in CLM18 contained within it ground 3 and the particulars to ground 3 with which these proceedings are concerned (see CLM18 at [4(a)], [10] and [78]).
Further, unlike the present Applicants, applicant CLM18 submitted only the one SHEV application, and did not seek to withdraw it, although he submitted (following the logic of his challenge to the validity of the Revocation Decision) that the SHEV application was validly made, remained on foot and should be considered and determined according to law. In the present proceedings, each of the Applicants sought (through their legal representatives) to withdraw their first SHEV applications and to submit a further SHEV application.
Mr Gormly accepts that the answer to ground 3 will determine whether or not:
(a)the Applicants’ withdrawals of their first SHEV applications was efficacious;
(b)each of the Applicants second SHEV applications was each valid.
Consideration
Counsel made substantially the same arguments in relation to ground 3 in these proceedings as were made before me in CLM18. My judgment in CLM18 considered those arguments in detail. Without intending any disrespect to counsel appearing in these proceedings, I see no utility in repeating the parties’ submissions, my consideration, and analysis, or my conclusions. I consider I have sufficiently set out and considered each ground in CLM18, see in particular at [87] to [114] of my judgment, which I adopt and incorporate by reference.
Although I do not consider that I am wrong, for completeness I record that I consider that each of the Applicants AOB18, FVZ18 and FWB18 was afforded procedural fairness in the course of the exercise by the Minister of the revocation power of s.46A(2C) by the Revocation Decision (see CLM18 at [115]).
In the case of each Applicant the correspondence and communications I have referred to above at [9]-[13] in the case of AOB18, [14]-[15] in the case of FVZ18, and [16]-[18] in the case of FWB18, show that the respective Applicant was given information in writing on at least three occasions that he needed to lodge his application within specified time frames, and was specifically notified that his case would be referred to the Minister to consider the exercise of the Minister’s power to revoke his decision. The conclusion I reached in CLM18 at [116]-[117] applies to the circumstances of the three Applicants before me, with equal force.
For the reasons there given, which I adopt and incorporate by reference, I am satisfied that ground 3 is not made out. No jurisdictional error is established in relation to the Revocation Decision. It follows there is no basis for upholding either of grounds 1 or 2. Each of the applications is dismissed, with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 16 May 2019
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