AYY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1961
•25 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AYY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1961
File number(s): SYG 674 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 25 August 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by a delegate of the respondent under s 128 of the Act cancelling a Temporary Protection Visa (TPV) held by the applicant on the ground that the applicant left Australia without obtaining permission as required by a condition attached to the TPV– whether delegate considered material relevant to the circumstances in which the applicant left Australia without obtaining permission – whether delegate considered the legal and practical consequences of the TPV being cancelled – jurisdictional error found – whether injunctive relief should be granted to restrain determination of the applicant’s application for a Safe Haven Enterprise Visa pending the applicant’s return to Australia – injunction granted Legislation: Federal Circuit Court Rules 2001 (Cth), r 17.02
Migration Act 1958 (Cth), ss 36(2), 36(3), 45AA, 116, 118, 119, 128, 129, 131, 476, 501(1), 501(2), Pt 2, Div 3
Migration Regulations 1994 (Cth), reg 2.08, Sch 2, cls 785.511, 790.411, Sch 8
Cases cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Bondelmonte v Bondelmonte [2017] HCA 8
Briginshaw v Bringinshaw (1938) 60 CLR 336
Cheaib Cheaib v Minister of State for Immigration and Multicultural Affairs [1997] FCA 562
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Klein v Domus Pty Limited (1963) 109 CLR 467
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Singh v Minister for Home Affairs [2019] FCAFC 3
Tait v The Queen (1962) 108 CLR 620
The King v Connell; Ex Parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
Wei v Minister for Immigration and Border Protection [2015] HCA 51Number of paragraphs: 70 Date of hearing: 4 August 2021 Place: Sydney Counsel for the Applicant: Mr B Lim, by video Solicitor for the Applicant: Legal Aid NSW Counsel for the Respondent: Mr T Reilly, by video Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYG 674 of 2021 BETWEEN: AYY21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
25 AUGUST 2021
THE COURT ORDERS THAT:
1.The decision made by a delegate of the respondent on 18 September 2020 to cancel the Temporary Protection (Class XD) (Subclass 785) visa granted to the applicant on 22 March 2016 is set aside.
2.Up to and including 25 July 2022, or up to and including a day that is 7 days after the applicant enters Australia, whichever occurs first, the respondent, by himself, or by his delegates, agents, or officers, is restrained from deciding the application for a Safe Haven Enterprise (Subsequent) (subclass) 790 visa the applicant made on 29 October 2018.
3.The parties have liberty to apply to vary or discharge order 2 for whatever reason.
4.The respondent pay the applicant’s costs as agreed or as assessed.
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by a delegate of the respondent (Minister) to cancel without notice the applicant’s Temporary Protection (Class XD) (Subclass 785) visa (TPV). The delegate purported to cancel the TPV under s 128 of the Act. The applicant also applies for an order restraining the Minister from determining the application the applicant made on 29 October 2018 for the grant of a Safe Haven Enterprise (Subsequent) (subclass) 790 visa (SHEV).
BACKGROUND
On 8 November 2012 the applicant applied for a Protection (Class XA) (Subclass 866) visa (Protection visa). The applicant claimed he is a citizen of Afghanistan, and a Hazara; he worked for the Provincial Reconstruction Team base in Ghazni, being an army camp that housed international and Afghan forces; and the applicant was employed to paint walls at the camp. The applicant further claimed that, when travelling home from work on his motorcycle with a friend, the applicant heard shots and saw his friend fall off the motorcycle; the applicant thought the shots came from the Taliban; and, fearing the Taliban were after him because he worked at the army base, the applicant travelled straight to Ghazni city without going home, and took a taxi to Kabul. The applicant also claimed the Taliban came looking for him and threatened his family after he left Afghanistan.[1]
[1] CB4
22 March 2016 – applicant is granted TPV
In June 2014 a delegate of the Minister recommended that the applicant “is a person in respect of whom Australia has protection obligations, under the Refugees Convention as amended by the Refugees protocol”.[2] The delegate found the applicant “presented as credible”, and the delegate accepted the applicant was a citizen of Afghanistan, and a Hazara. Further, the delegate found the applicant faced a real chance or persecution by the Taliban in the foreseeable future should he return to Ghazni.[3] The delegate did “not consider internal relocation is a safe or reasonable option for the applicant”.[4]
[2] CB15
[3] CB11
[4] CB13
By “Visa Grant Notice” dated 22 March 2016 (Visa Notice) the applicant was granted a TPV.[5] The Visa Notice recorded that the applicant’s application for a Protection visa was converted into an application for a TPV, and that this occurred following the insertion of s 45AA into the Act and reg 2.08 into the Migration Regulations 1994 (Cth) (Regulations). The Visa Notice included a “Visa Cease Date” of 22 March 2019. That date was included because of cl 785.511 of Schedule 2 to the Regulations, which provides:
[5] CB18
Temporary visa permitting the holder to remain in, travel to and enter Australia until:
(a) in a case in which the holder of the temporary visa (the first visa) makes a valid application for another Subclass 785 (Temporary Protection) visa, or a Subclass 790 (Safe Haven Enterprise) visa, within 3 years after the grant of the first visa:
(i) if the application is withdrawn—the later of:
(A) the day the application is withdrawn; or
(B) the end of 3 years from the date of the grant of the first visa, or the end of any shorter period specified by the Minister, whichever occurs earlier; and
(ii) if the application is not withdrawn—the day the application is finally determined; and
(b) in any other case—the earlier of:
(i) the end of 3 years from the date of grant of the first visa; and
(ii) the end of any shorter period, specified by the Minister, from the date of grant of the first visa.
The Visa Notice recorded that the grant of the TPV was subject to a number of visa conditions, one of which is “8570 – RESTRICTED TRAVEL”. That is a reference to condition 8570 specified in Schedule 8 to the Regulations, which provides:
The holder must not:
(a)enter a country by reference to which:
(i)the holder was found to be a person in respect of whom Australia has protection obligations; or
(ii)for a member of the family unit of another holder — the other holder was found to be a person in respect of whom Australia has protection obligations; or
(b)enter any other country unless:
(i)the Minister is satisfied that there are compassionate or compelling circumstances justifying the entry; and
(ii)the Minister has approved the entry in writing.
6 July 2016 – applicant granted permission to travel to Iran
On 23 June 2016 the applicant applied for permission to travel to Iran.[6] He said his mother was going to Iran from Afghanistan because she is sick, and needs to be treated in Iran for her illness. The applicant claimed he had to go to Iran to take care of his mother while she was being treated because she had nobody in Iran. A delegate approved the applicant’s request for travel by letter dated 6 July 2016.[7] The letter includes the following:
[6] CB25
[7] CB40
Approval of request to travel under condition 8570
This letter refers to your request to the Minister for Immigration and Border Protection for approval to travel to Iran, for the following visa holders:
· [applicant’s name]
As a delegate of the Minister, I have approved your request to travel to Iran in this instance.
Please be aware that the approval is valid for your current proposal to travel only. You have permission to travel between . . . and . . . with transit in . . . . 1 day in . . . and 1 day in . . . . If, after your return to Australia, you intend to travel again, you must seek written approval again.
You do not have approval to travel to Afghanistan, which is the country you were granted protection from, or any other country except those listed in this letter. If you travel to a country not listed in this letter, you will be in breach of condition 8570 and your visa may be considered for cancellation.
. . . .
As soon as possible after your return to Australia, you should provide evidence that you travelled in accordance with the approval provided in this letter by sending a copy of your boarding passes and any other evidence . . . to . . . . This information will be taken into consideration when deciding any future travel requests.
28 July 2017 – applicant granted permission to travel to Pakistan
On 28 July 2017 the applicant, through his travel agent (TA), again applied for permission to travel, this time to Islamabad.[8] A delegate of the Minister approved that request by email sent on 28 August 2017 to the TA.[9] The email included the following:
[8] CB43
[9] CB47
Approval of request to travel under condition 8570
Visa holder(s) [applicant’s name] Entry approved to Pakistan Entry approved for period 04/09/2017 to 03/12/2017 This approval is valid for the proposed travel details above and for entry into countries you need to transit through as specified in your request for approval to travel visa condition 8570 form.
29 October 2018 – applicant applies for SHEV
On 29 October 2018 the applicant lodged an application for a SHEV.[10] The application has not yet been determined. It is relevant to note at this point, however, that to be entitled to the grant of a SHEV the applicant must be in Australia. That follows from s 36(2) of the Act. It also follows from cl 790.411 of Schedule 2 to the Regulations, which requires that the “applicant must be in Australia when the visa is granted”.
[10] CB111-124
9 November 2018 – applicant is granted permission to travel to Iran
The applicant again applied for permission to travel on 25 October 2018. On this occasion he said he wanted to travel to Iran to see his mother, as “she is already in Iran”, and his wife and kids.[11] A delegate of the Minister approved the applicant’s request by email sent to the TA on 9 November 2018.[12] The email included the following:
[11] C49
[12] CB64
Approval of request to travel under condition 8570
Visa holder(s) [applicant’s name] Entry approved to Iran Entry approved for period 01/12/2018-01/02/2019 Your request to the Minister for Home Affairs (the Minister) for travel under condition 8570 has been approved.
8 January 2020 – applicant applies for permission to travel to Iran
On 8 January 2020 the TA sent an email to the “Travel Request Unit” within the Department of Home Affairs (Department).[13] The TA attached, among other things, a “Travel Approval 1454 form” apparently signed by the applicant, and an itinerary. In his form the applicant stated he intended to visit a particular address in Iran; he intended to travel from 9 February 2020 to 9 April 2020; and that the purpose of the applicant’s travel was to visit his mother who lives in Iran. The itinerary recorded a flight from Sydney to Doha and then a flight from Doha to Tehran; and a flight from Tehran to Doha, and a flight from Doha to Sydney.[14]
[13] CB66
[14] CB72-73
On 6 February 2020 a delegate of the Minister sent an email to the TA requesting additional information.[15] The delegate requested evidence that the family members the applicant intended to visit are in Iran, evidence of their immigration status in Iran, evidence of the applicant’s immigration status in Iran, and evidence to support the applicant’s claims of compassionate or compelling circumstances justifying the proposed travel. The TA responded by email sent on 6 February 2020.[16]
[15] CB75
[16] CB77
The email attached the applicant’s and his mother’s entry visas to Iran, and stated that the compelling and compassionate grounds on which the applicant relied is that his “mother is too old and sickish”, and the applicant “is afraid he might miss the chance of seeing her for the last time”. The email also stated that the applicant has to visit his wife and children who are living in Iran as refugees without papers; and, because they do not have papers, the landlord has given them a time frame to leave the house, and the applicant wants to be with them to find a house and, if they find a house, to sign for rent because the applicant’s family “cannot rent it without the man of the family being present when the contract is being signed”.[17]
[17] CB77
On 19 February 2020 the TA forwarded to the Department what appears to be an email from the applicant directed to the Department.[18] The applicant said this was his second request to travel to Iran because the request he lodged on 8 January 2020 remained unanswered. He said “my passport’s six months validity requirement to travel to Iran has expired”, and that this caused huge issues for the applicant. The applicant said he applied for and obtained a new travel document. The applicant further said that his wife and children are living in Iran, but as refugees without any papers; his family’s landlord had given his family a time frame to leave the house because they are refugees without papers; and in a situation where they do not hold any refugee documents, they would not be able to find or lease accommodation, especially in a country like Iran where the man of the family is needed to sign an accommodation agreement. The applicant also said that his family temporarily moved into a friend’s house, but the move came at a cost. The applicant’s mother slipped while helping with the move, thus leading to the deterioration of her lower back injury, and her being admitted into hospital where the doctors recommended spinal surgery.
[18] CB86
21 February 2020 – applicant granted permission to travel to Iran
By email sent to the TA on 21 February 2020 a delegate of the Minister approved the applicant’s request for travel.[19] The email included the following:
[19] CB100
Approval of request to travel under condition 8570
Visa holder(s) [applicant’s name] Entry approved to Iran Entry approved for period 29/02/2020 to 30/04/2020 Your request to the Minister for Home Affairs (the Minister) for travel under condition 8570 has been approved.
. . . .
This approval is valid for the proposed travel details above and for entry to countries you need to transit through as specified in your Request for approval to travel under visa condition 8570 form. If after your return to Australia you intend to travel again, you must make a further request.
11 March 2020 – applicant informs Department of decision to cancel travel to Iran
On 11 March 2020 the applicant, though the TA, informed the Department that “due to coronavirus I have decide[d] to cancel my travel to Iran”.[20]
[20] CB102
28 July 2020 – exchange of emails between the TA and Department
At 1:35 pm on 28 July 2020 the Department sent an email to the TA stating:[21]
Please resend an email which was sent in the last few minutes with an attached itinerary from Sydney to Iran.
Unfortunately due to a system error the email is no longer accessible.
[21] CB106
The TA responded with an email sent at 1:39 pm on 28 July 2020 stating (errors in original):[22]
As per request here is attached itinerary if need more assistant please advise me to resend his previous approval
[22] CB106
The itinerary showed flights from Sydney to Doha on 8 August 2020, Doha to Tehran on 9 August 2020, Tehran to Doha on 8 November 2020, and a flight from Doha to Sydney on 8 November 2020.
A delegate of the Minister responded by sending an email to the TA at 1:55 pm on 28 July 2020 as follows (emphasis in original):[23]
[23] CB110
Acknowledgment of request to travel under condition 8570
Visa holder(s) [applicant’s name] Entry requested on: 28/07/2020 Entry requested for period: 08/08/2020 to 09/11/2020 Your request to the Minister for Home Affairs (the Minister) for travel under condition 8570 has been received.
With the outbreak of a novel (new) coronavirus (2019-nCoV), the situation on travel restrictions into Australia continues to evolve. It is strongly recommended that you keep up to date with the information from the Department of Home Affairs and the Department of Health, which is available by following the links below:
. . . .
Acknowledging the ever-evolving global situation on travel restrictions int Australia, please note that your request for travel has been finalised with no further action. Please note that should you wish to travel in the future, you must lodge a further request for approval for travel.
Under condition 8570, you must not enter your country of reference . . .
9 August 2020 – applicant departs Australia
In a statutory declaration (Declaration) made on 27 September 2020,[24] the applicant says as follows:
On 28/07/2020, [the TA] asked the Department for the approval of my travel to Iran. They used their own email address for correspondence for the reasons outlined above, i.e. my lack of English.
On Tuesday, 28 July 2020, [the TA] contacted me and informed me that my request has been approved and I can travel to Iran without any issues. They also booked my ticket and I made the preparation for departure. As stated earlier, my mother was very sick, my sister . . . was also very sick, and I needed to be in Iran as soon as possible. Personally, I could not understand the Department’s email and all I had to do was to trust what [the TA] had told me.
As my First Travel Request in 2020 was approved by the Department (while still COVID-19 was an issue), I did not doubt the approval of the second travel request in 2020. Also, I trusted what [the TA] had told me. . . .
[24] Declaration, [13], [14], [15]. The Declaration is annexed to the applicant’s affidavit of 20.04.2021
On 9 August 2020 the applicant “left Australia for Iran through a transit in the United Arabic Emirates”, and the applicant “did not leave the airport while in transit in the United Arabic Emirate”.[25] The applicant departed through Sydney Airport. At passport control, the applicant “gave the officer” his “travel document and travel permission”. The officer “looked at it and said nothing”.[26]
[25] Declaration, [15]
[26] Applicant’s affidavit of 20.04.2021 at [6]
The applicant made the following statements in the Declaration about his beliefs at the time he left Australia:[27]
I would like to declare that, before leaving Australia, I did not know that my request for travel to Iran was not approved. I would have never left Australia if I knew this before leaving Australia. It was a big mistake of my life. If I could have read some English and understood the Department’s email, I would have not left Australia under any circumstances. I know how difficult it was for me to escape prosecution [sic] in Afghanistan and finally reach Australia 7 years ago. I knew what my family and I would go through if I had left Australia deliberately and without obtaining the permission to travel.
[27] Declaration, [16]
14 August 2020 – TPV is referred for cancellation
On 14 August 2020 an officer from the Department’s Caseload Integrity and Logistics Section sent an email to the Department’s General Cancellations Network attaching a completed “General Cancellations Network (GCN) Referral Form” (Referral Form).[28] Section 5 of the Referral Form, which required a brief summary of the reasons for the referral, was completed as follows:
[The applicant] arrived in Australia on . . . 2012 as an irregular maritime Arrival. [The applicant] was granted a . . . TPV . . . on 22/03/2016. [The applicant] subsequently travelled outside Australia on three occasions . . . . He received approval to travel from the Department each time, in accordance with Condition 8570. [The applicant] lodged a further request to travel on 28/07/2020, indicating an intention to travel to Iran. He departed Australia on 09/08/2020 prior to the finalisation of this request, and is currently offshore. As he did not receive permission from the Minister/delegate to travel in this instance, [the applicant] has breached Condition 8570 attached to his TPV.
I believe grounds exist to support cancellation under section 128 of the Migration Act 1958.
[28] Affidavit of K Bones 21.07.2021 annexure KB19 (page 30) and KB20 (page 32)
Section 128 of the Act
It would be convenient if at this point I refer to s 128 of the Act, which provides:
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non‑citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
Section 116 of the Act relevantly provides that, subject to immaterial exceptions, “the Minister may cancel a visa if he or she is satisfied . . . its holder has not complied with a condition of the visa”. If the Minister cancels a visa under s 128 of the Act, s 129 of the Act applies, which provides:
(1)If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non‑disclosable information) because of which the ground was considered to exist; and
(c) inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; and
(d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
(e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
(2) The notice is to be given in the prescribed way.
(3) Failure to give notification of a decision does not affect the validity of the decision.
18 September 2020 – TPV cancelled
On 18 September 2020 a delegate of the Minister decided to cancel the TPV (Cancellation Decision). The decision, and the reasons for decision, are recorded in a decision record dated 18 September 2020 (Decision Record).[29] The Decision Record may be divided into three parts. The first part concerns whether the applicant failed to comply with the conditions attached to the TPV. The delegate found the applicant did not comply with condition 8570:[30]
On 28 July 2020, Departmental records indicate the visa holder applied for permission to enter Iran from 08 August 2020 to 09 November 2020. The visa holder departed Australia on 09 August 2020 without an outcome on his request to enter another country.
Departmental movement records indicate the visa holder departed Australia on 09 August 2020 aboard . . . . Flight number . . . is a direct flight from Sydney, Australia to Dubai, The United Arab Emirates. The visa holder remains offshore.
Condition 8570 states in part, the visa holder must not enter a country unless the Minister is satisfied that there are compassionate or compelling circumstances justifying the entry; and the Minister has approved the entry in writing.
I am satisfied that the visa holder did not obtain written approval prior to entering The United Arab Emirates. I have considered whether there are compassionate or compelling circumstances known to the Department that would justify the entry into The United Arab Emirates. On the information available to me I am not aware of any compassionate or compelling circumstances that would justify that entry. Therefore, the visa holder has not complied with condition 8570(b).
[29] CB188-194
[30] CB190, [4]-[8]
The second part of the Decision Record addresses whether it is appropriate to cancel the TPV in accordance with Subdivision F of Division 3 of Part 2 of the Act, being the subdivision that contains s 128 of the Act. The delegate was required to address that question because there was an alternative means by which the delegate could have cancelled the TPV, and that is by first giving notice under s 119 of the Act. The delegate was satisfied it was appropriate to cancel the TPV under s 128 of the Act because “the visa holder may attempt to return to Australia if they [sic] were to be given prior notice that their visa was being considered for cancellation in the form of a Notice of Intention to Consider Cancellation”.[31]
[31] CB190-191, [12]
The third part of the Decision Record is addressed to what the delegate described as the “residual discretion”. This part is divided into a number of factors, each of which identifies a subject the delegate says he or she had taken into account, and the weight the delegate gave to each subject either in favour of or against cancelling the TPV. The factors the delegate considered, and the relevance and weight he attached to those factors, are as follows:
(a)Purpose of the visa holder’s travel to and stay in Australia. The delegate refers to the applicant having been assessed to be a refugee, and having been granted a TPV. The delegate gave “this consideration some weight against cancelling the visa”.[32]
[32] CB191, [15]
(b)The extent of the visa holder’s compliance with visa conditions subject to which their visa was granted. After noting there was no evidence the applicant had not complied with conditions 8503 and 8565, the delegate repeated the finding that the applicant had not complied with condition 8570. The delegate concluded:[33]
[33] CB191, [20]
As such, I give some weight against cancelling the visa for complying with conditions 8503 and 8565 and I give significant weight in favour of cancelling the visa for not complying with condition 8570.
(c)The degree of hardship that may be caused to the visa holder and any family members. The delegate referred to the applicant having been in the community for seven years, noting that this “would have been time to have established ties within the Australian community”, and, for this reason, the applicant would suffer some hardship if the TPV were cancelled. The delegate gave this consideration “a little weight against cancelling the visa”. The delegate also noted there was no evidence that the applicant’s “claimed family members who are offshore would suffer hardship” if the TPV were cancelled and, for this reason, the delegate gave “this consideration some weight for cancelling the visa”.[34]
[34] CB191-192, [21]-[23]
(d)The circumstances in which the ground for cancellation arose (extenuating circumstances beyond the visa holder’s control that led to the grounds existing). The delegate repeated the effect of condition 8570, along with facts the delegate had previously referred to, after which the delegate concluded:[35]
[35] CB192, [24]
I remain satisfied the visa holder has entered another country following their last departure from Australia on 09 August 2020 without having the written approval for the Minister to do so.
Therefore, I give this consideration significant weight in favour of cancelling the visa.
(e)The visa holder’s past and present behaviour towards the Department. The delegate referred to the Minister’s previous approvals of the applicant’s requests for travel and noted there was no evidence the applicant had not previously complied with condition 8570. But, after repeating the delegate was satisfied the applicant had breached condition 8570(b), the delegate concluded:[36]
In considering the above, I give significant weight in favour of cancelling the visa due to their non-compliance with condition 8570.
(f)Any consequential cancellation that may result. The delegate noted there was no evidence to show the cancellation of the TPV would lead to the cancellation of visas held by others.[37]
(g)Legal consequences of a decision to cancel the visa. The delegate noted that if the TPV is cancelled, the applicant will no longer hold a valid visa for travel and entry into Australia, but that, if the TPV is cancelled, the applicant may within 28 days apply for the revocation of the TPV.[38]
(h)Australia’s international obligations. The delegate said that Australia’s international obligations no longer apply because the applicant is no longer in Australia.
[36] CB193, [28]
[37] CB193, [29]
[38] CB193, [30]-[31]
Section 128 of the Act does not identify any factors the Minister must or may take into account. The factors the delegate identified in the Decision Record appear to be those identified in a Departmental policy manual known as “PAM3” under the heading “s116 – Deciding whether to cancel”.[39]
[39] Affidavit of K Bones 21.07.2021 annexure KB23 (page 95)
The delegate gave the applicant a notice of the delegate’s decision to cancel the TPV as required under s 129(1) of the Act, which provides:
If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and
(c) inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; and
(d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
(e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
28 September 2020 – applicant applies for review of cancellation
On 28 September 2020 the applicant applied under s 129(1) of the Act for the revocation of the Cancellation Decision. That engaged s 131(1) of the Act, which relevantly provides:
. . . after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:
(a) if not satisfied that there was a ground for the cancellation; or
(b) if satisfied that there is another reason why the cancellation should be revoked;
is to revoke the cancellation.
GROUNDS OF APPLICATION
The applicant relies on the proposed amended application that was filed pursuant to leave I gave at the hearing. The amended application claims the following relief:
(a)An order quashing or setting aside the Cancellation Decision.
(b)In the alternative to (a):
(i)an order quashing or setting aside the decision not to revoke the Cancellation Decision; and
(ii)an order requiring the Minister to consider the applicant’s response to the notice of the Cancellation Decision, and then make a decision about that revocation according to law.
(c)An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making a decision whether to refuse the applicant’s SHEV application made on 29 October 2018.
It is apparent that the remedies sought in [32 (b)] assume the Minister has already made a decision not to revoke the Cancellation Decision. The Minister, however, has not yet made a decision in relation to the application to revoke the Cancellation Decision.
The amended application contains six grounds of application. At the hearing, by consent, I made an order pursuant to r 17.02 of the Federal Circuit Court Rules 2001 (Cth) for the separate determination of grounds 2 to 6 of the amended application. Ground 7, being the only remaining ground, relates to the decision the Minister has not yet made under s 131 of the Act in response to the applicant’s application under s 129(1) of the Act for revocation of the Cancellation Decision.
I will first consider ground 5, being the ground counsel for the applicant first addressed at the hearing.
CANCELLATION DECISION UNREASONABLE OR IRRATIONAL?
Ground 5 is as follows:
The Cancellation Decision was affected by jurisdictional error in that the Minister’s delegate failed to take into account mandatory relevant considerations or because the Cancellation Decision was otherwise irrational or legally unreasonable.
Particulars
(a)The delegate was required to take into account, but failed to take into account, the risk of harm to the applicant, a refugee, in the event that the visa was cancelled. This consideration is distinct from consideration of Australia’s non-refoulement obligations and is a mandatory consideration in any decision to cancel a protection visa.
(b)The delegate was required to take into account, but failed to take into account, the applicant’s circumstances as set out in his travel requests provided to the Minister in January 2020, February 2020 and July 2020. These were relevant to the question of whether there were compassionate or compelling circumstances known to the Department that would justify entry into the UAE. This is a matter that the delegate considered to be important and on which the delegate placed “significant weight”.
(c)The delegate was required to take into account, but failed to take into account, the Minister’s response to the July 2020 travel request in considering whether there were extenuating circumstances beyond the visa holder’s control that led to the grounds existing . . . . This is a matter that the delegate considered to be important and on which the delegate placed “significant weight”.
(d)The delegate irrationally or unreasonably placed weight in favour of cancellation on [sic] circumstances that could rise no higher than neutral circumstances in relation to cancellation:
(i)that the applicant had no family in Australia who would suffer hardship;
(ii)that there were no consequential cancellations that may result; and
(iii)that the applicant would have an opportunity to make revocation submissions.
(e)Further particulars may be provided after discovery of relevant Departmental records.
Parties’ submissions
In his counsel’s written submissions, the applicant submits the delegate did not have regard to the circumstances in which the applicant came to travel to Iran without the Minister’s written permission;[40] and the delegate did not have regard to the harm that was likely to occur to the applicant if the TPV were cancelled.[41] The applicant submits these were considerations which, on the proper construction of s 128 of the Act, the delegate was bound to take into account. Further, or in the alternative, the applicant submits that by not taking into account these considerations when deciding to cancel the TPV, the delegate acted unreasonably, or irrationally, or both. Counsel for the applicant repeated the substance of these submissions in oral address.
[40] Applicant’s Outline of Submissions, [50]
[41] Applicant’s Outline of Submissions, [54]-[55]
In his counsel’s written submissions, the Minister submits it cannot be said the delegate did not have regard to the circumstances in which the applicant departed Australia without the Minister’s approval, or that the delegate did not consider the consequences to the applicant if the TPV were cancelled.[42] The Minister also submits that, on the material that was before the delegate, it cannot be said that the delegate’s decision was irrational or unreasonable. An element of this submission is the contention that, at most, the information before the delegate on both these questions was ambiguous. The Minister further submits it is unclear how, given the information that was before the delegate, it could be said the delegate’s decision displays any jurisdictional error, noting there would be no error in law in the delegate making an error of fact.[43]
[42] Respondent’s Written Submissions, [21]
[43] Respondent’s Written Submissions, [22]
The Minister is correct in submitting the delegate considered information relating to the circumstances in which the applicant departed Australia without obtaining the Minister’s approval, and that the delegate considered information relating to the consequences to the applicant if the TPV were cancelled. The Decision Record notes the delegate considered these matters under headings specifically directed to them; and it may be that the information the delegate did consider was ambiguous, as the Minister submits, and that the delegate’s decision is one that would be open to a reasonable decision maker if the only information available to the delegate was that to which the Decision Record indicates the delegate had regard.
That the delegate referred to this information, or that the only information the delegate actually considered was information that could reasonably support the decision the delegate made, does not, however, necessarily mean the delegate acted within jurisdiction. Whether the delegate made any jurisdictional error turns, in the first instance, on the proper construction of s 128 of the Act.
Nature and scope of s 128 of the Act
Section 128 of the Act confers a power on the Minister to cancel a visa. The power is capable of being exercised only if two conditions are satisfied. One is that the visa holder is outside Australia. The other condition is the Minister’s being “satisfied” of two things: first, there is a ground for cancelling the visa under s 116 of the Act; and, second, it “is appropriate to cancel in accordance with this Subdivision”. There are a number of observations that may be made about the second of these two conditions.
First, there is the meaning of “satisfied”. When used in relation to a person, “satisfied” is capable of denoting any one of a number of particular states of mind of that person.[44] One such state of mind is that of being “assured” or “convinced”.[45] Another set of words to describe the same state of mind is “actual persuasion”. In Briginshaw v Briginshaw Dixon J used those words to describe the state of mind a fact finder must have before he or she can find a fact has been proved. His Honour described the relevant state of mind as “reasonable satisfaction” that the fact exists or has occurred; and his Honour said that, before a fact finder can find a fact exists or has occurred, he or she “must feel an actual persuasion of its occurrence or existence”.[46] It is in this sense that “satisfied” is used in s 128 of the Act: the Minister must be assured, or convinced, or persuaded of the matters stated in s 128(a) of the Act.
[44] “The “satisfaction” required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind”: Wei v Minister for Immigration and Border Protection [2015] HCA 51, at [33]
[45] Oxford English Dictionary, online version accessed on 21 August 2021
[46] Briginshaw v Bringinshaw (1938) 60 CLR 336, at pages 361-362
Second, where, as in s 128(a) of the Act, a statute requires a decision maker to be satisfied of particular things before a power can be exercised, the state of mind manifesting the satisfaction “must be formed reasonably and on a correct understanding of the law”. [47] A “correct understanding of the law” extends not only to the correct construction of the particular text of the statutory provision that describes that of which the decision must be satisfied; it also extends to a correct understanding of the factors a decision maker may or must take or not take into account when exercising a discretionary power that does not identify the grounds on which the discretionary power may be exercised. How those factors are to be identified has been described by a number of authorities. In Klein v Domus Pty Limited Dixon CJ said:[48]
This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised and in a sense this is one such case. We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.
[47] Wei v Minister for Immigration and Border Protection [2015] HCA 51, at [33]. See too the often quoted passage from the judgment of Latham CJ in The King v Connell; Ex Parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, at page 430: “Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.”
[48] Klein v Domus Pty Limited (1963) 109 CLR 467, at page 473
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd Mason J said:[49]
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard . . . . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.
[49] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, at pages 39-40
Third, the state of mind of being satisfied, that is, of being assured, convinced, or persuaded, is one that can be achieved only after some cognitive and reasoning process. The process begins with the presentation to the mind of a person of some question, or some fact or set of facts that raises a question, whether a fact or state of affairs exists, or whether an opinion should be formed; and the process ends when the decision maker, after considering the question, concludes he or she is or is not satisfied the fact exists or the opinion should be formed. The mental processes associated with the consideration a decision maker gives to a question must have a quality that has been described in different ways. It has been said that a decision maker must “examine ... scrutinise ... to fix the mind upon ... to reflect upon” the question he or she is required to consider;[50] the decision maker must “give proper, genuine and realistic consideration” to the question he or she considers;[51] and the decision maker must engage in an active intellectual process.[52]
[50] Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274, at [71] (Heerey, Goldberg and Weinberg JJ)
[51] Bondelmonte v Bondelmonte [2017] HCA 8, at [43]
[52] See, for example, Singh v Minister for Home Affairs [2019] FCAFC 3, at [37]
The fourth observation or set of observations relates to the things of which s 128 of the Act requires the Minister to be satisfied. There are two. The first is there is a ground for cancelling a visa under s 116 of the Act. I need say nothing further about this. The second is that “it is appropriate to cancel in accordance with this Subdivision”. “This Subdivision” is Subdivision F of Division 3 of Part 2 of the Act, which is headed “Other procedure for cancelling visas under Subdivision D outside Australia”. The heading directs attention to three things: the provisions in the subdivision are concerned with the procedure for cancelling a visa; that procedure applies to a visa holder who is outside Australia; and there are other procedures for the cancellation of visas in relation to a visa holder, whether or not the visa holder is in or outside Australia. The other procedures are contained in Subdivision E, which is titled “Procedure for cancelling visas under Subdivision D in or outside Australia”.
The principal difference between the procedure prescribed by Subdivision E (E Procedure) and the procedure prescribed in Subdivision F (F Procedure) is that under the E Procedure the Minister must give the visa holder an opportunity to make submissions before the Minister considers whether to cancel the visa, whereas under the F Procedure the Minister is not required to give the visa holder notice of intention to cancel, but the Minister must give the visa holder the opportunity to make submissions to revoke the cancellation of the visa if the Minister cancels it. Subparagraph (ii) of s 128(a) of the Act, therefore, permits the Minister to consider whether it is “appropriate” to cancel a visa by use of the F Procedure, and for the Minister to cancel the visa using the F Procedure, if the Minister is satisfied it is “appropriate” to do so. Two questions arise. What does “appropriate” in the context of s 128 of the Act mean? And what factors may or must the Minister take or not take into account when determining whether it is appropriate to cancel a visa using the F Procedure?
The word “appropriate”, when used as an adjective in relation to something, means “specially fitted or suitable, proper”.[53] In s 128(a)(ii) of the Act the something in relation to which “appropriate” is used is the cancellation of a visa held by a person who is outside Australia by use of the F Procedure. Given the Minister also has available the E Procedure for the cancellation of a visa held by a person who is outside Australia, the question s 128(a)(ii) of the Act requires the Minister to answer is: is it suitable or proper to cancel the visa by use of the F Procedure, given the E Procedure is also available?
[53] Oxford English Dictionary, online edition, accessed on 22 August 2021
The factors the Minister must or must not take into account when determining this question turn on “the scope and purpose of [s 128] and . . . what is its real object”.[54] The purpose of the F Procedure of which s 128 of the Act forms part is to provide the Minister with a different procedure to that provided for by the E Procedure for cancelling the visa held by a person who is outside Australia. Both sets of procedures, however, afford the visa holder an opportunity to make submissions to the Minister, either that no ground for cancelling the visa has occurred or, if the visa holder accepts it has occurred, that the visa should not be or ought not to have been cancelled. Stated more generally, both sets of procedures are aimed at ensuring that the visa holder has an opportunity to preserve (in the case of the E Procedure) or to restore (in the case of the F Procedure) the rights they have or had as the holders of the visa the Minister proposes to cancel or which the Minister has cancelled. The consequence of these observations is that, when determining whether it is appropriate to cancel a visa by use of the F Procedure rather than the E Procedure, the Minister is bound to consider the position the visa holder would be in if the F Procedure were followed and the visa holder were to succeed in persuading the Minister to revoke the cancellation of the visa, with the position the visa holder would be in if the E Procedure were followed and the visa holder were to succeed in persuading the Minister not to cancel the visa. If the visa holder would be in a worse position under the F Procedure than under the E Procedure, that would be a matter the Minister ought to take into account when determining whether he or she is satisfied it is appropriate to cancel a visa “in accordance with” Subdivision F.
[54] Klein v Domus Pty Limited (1963) 109 CLR 467, at page 473
Stated in the abstract, this construction of s 128(a)(ii) of the Act might be difficult to follow. Its practical manifestation, however, is clearly revealed by the facts of the case before me. The TPV the applicant held immediately before the delegate cancelled it was on foot because, although initially granted for three years, its operation was extended on 29 October 2018 under cl 785.511(a)(ii) of Schedule 2 to the Regulations when the applicant applied for a SHEV. The delegate’s cancellation of the TPV exposes the applicant to the risk of his application for a SHEV being refused on the sole ground that he is not in Australia, and has no right to enter Australia. Should that risk come to pass, the applicant will have no right to apply for a SHEV, even if he were to succeed in persuading the Minister to revoke the Cancellation Decision. The applicant, however, would not have been exposed to this risk if the delegate had instead used the E Procedure.
This construction of s 128(a)(ii) of the Act is supported by the purposes for which Subdivision F was introduced into the Act. In Cheaib Cheaib v Minister of State for Immigration and Multicultural Affairs Lockhart J referred to the Explanatory Memorandum to the bill that added Subdivision F into the Act:[55]
[55] Cheaib Cheaib v Minister of State for Immigration and Multicultural Affairs [1997] FCA 562
The Explanatory Memorandum contains paragraph 151 which concerns s. 50AN of the bill, now s. 128 of the Act. Paragraph 151 has a heading ‘cancellation of visas of people outside Australia’.
The primary Judge referred to paragraphs 149 and 150 of the explanatory memorandum (but not paragraph 151) which read as follows:
‘... This Subdivision provides for cancellation of a visa without prior notice. It is intended to be used in circumstances where there is a risk that a visa holder would respond to a notice by travelling to Australia in the belief that it would be more difficult for the person's visa to be cancelled and the person removed.’ (par 149)
While there is no pre-cancellation notice, notification provisions will apply after the visa has been cancelled and there is an express power to revoke the cancellation if the former visa holder shows that the ground did not exist or there was a reason why the visa should not be cancelled.’ (Emphasis added) (par 150)
Paragraph 151 states:
‘The requirement that the holder not have entered Australia applies only to future travel authorized by the visa and s 50AN will also apply to non-citizens who have previously been in Australia but are now outside it.’
Paragraph 135 of the Explanatory Memorandum is relevant. It is concerned with Subdivision E and reads as follows:
‘... Subdivision E is applicable regardless of where the visa holder is. Note that subdivision F allows for an alternative procedure where the visa holder is outside the migration zone. Where the holder is outside the migration zone, the Minister may elect whether to apply the procedure in Subdivision E or the procedure in Subdivision F.
The Explanatory Memorandum shows that Subdivision F was not introduced to reduce the ability of a visa holder who is outside Australia to make submissions in relation to the cancellation of a visa; its purpose was to make available to the Minister the option of restricting the visa holder who is outside Australia to make submissions in relation to the cancellation of a visa only while that person is outside Australia. There is nothing in the Explanatory Memorandum to suggest that the purpose of the F Procedure was to lessen in any substantive way the ability of a person who is outside Australia from making submissions in relation to the cancellation of a visa.
I am aware that s 118 of the Act provides that the powers to cancel a visa under the sections identified in s 118 are not limited, or otherwise affected, by each other. My construction of s 128(a)(ii) of the Act, however, does not rely on any of the other provisions for cancelling visas; it turns on the construction of the text of s 128(a)(ii) itself.
Next, I turn to the nature of the power to cancel a visa under s 128 of the Act, assuming the preconditions for its exercise have been met. The power is unfettered in its terms; but as the Full Federal Court in NBMZ v Minister for Immigration and Border Protection said about the power to refuse to grant a visa under s 501(1) of the Act, the “Minister may not act arbitrarily, capriciously or legally unreasonably”; and the “subject matter, scope and purpose of the Act may also require that certain considerations be taken into account”.[56] One consideration it has been held the Minister is bound to take into account are the legal consequences of refusing or cancelling a protection visa to someone Australia has been found to owe protection obligations.[57] Another consideration, identified in the context of the power to cancel a visa under s 501(2) of the Act, is the practical consequences of cancellation.[58] It has also been said, this time in the context of a decision not to revoke the cancellation of a visa, that:[59]
the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.
[56] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, at [6]
[57] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, at [6]
[58] Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61, at [107], [129]
[59] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, at [3]
There is another aspect of the power conferred by s 128 of the Act. The Minister alone can initiate its exercise; and it is a power the Minister is entitled and expected to exercise without notice to the visa holder. This suggests that the reasonable exercise of the power conferred by s 128 of the Act requires the Minister, once he or she becomes aware of circumstances that might lead to the Minister considering whether to exercise the power, to do that which is reasonably necessary to obtain all information within his Department’s control that is or may be relevant to deciding whether to cancel the visa, and to consider that information. In other words, the usual incident of a discretionary power that it must be exercised reasonably requires, in the case of s 128 of the Act, the Minister to obtain information reasonably available to him or her that is relevant to whether to cancel the visa, and to consider that information. The information that would be relevant would at the very least include the circumstances in which the ground for cancelling the visa arose, and the consequences to the visa holder and members of the visa holder’s family unit, if the visa is cancelled.
Determination
Once the delegate became aware of information that suggested the applicant had breached condition 8570 and, for that reason, the delegate became aware that he or she might have to consider whether to cancel the applicant’s TPV by using the F Procedure, the reasonable exercise of the power conferred by s 128 of the Act required the delegate to obtain information readily available within the Department’s records that was relevant to determining whether to cancel the TPV; and then consider that information to determine whether to cancel the TPV and, if so, whether it was appropriate that this be done by the F Procedure. It is not immediately apparent, however, what information the delegate had before him or her, or which of the information that was available to the delegate was read or considered by the delegate.
It is reasonable to infer the Department maintains information systems that record events in relation to the applicant, and the delegate had access to such information systems. It is also reasonable to infer the delegate accessed the events relating to the applicant that were recorded in the Department’s information systems, and the delegate had regard to those events. It is reasonable to infer, however, and I find, that the delegate did not read, and therefore did not consider, at least some of the primary documents. In particular, I find the delegate did not read the email the TA sent to the Department at 1:39 pm on 28 July 2020, or the email the Department sent to the TA at 1:55 pm on 28 July 2020. The delegate does not describe the text of the TA’s email, or refer to the email having been sent by a travel agent; the delegate only refers to what the delegate records to be its effect, namely, an application for “permission to enter Iran”,[60] or a request to “enter another country”. Further, although the delegate refers to the Department’s not having finally assessed the applicant’s request for permission to travel, the delegate does not refer to the email or the text of the email the Department sent the TA at 1:55 pm on 28 July 2020.
[60] CB190, [4]
I therefore accept the applicant’s submission that the delegate did not consider the immediate circumstances that led to the applicant’s decision to depart Australia on 9 August 2020, as those circumstances are revealed by the email the TA sent to the Department at 1:39 pm on 28 July 2020, and the email the Department sent to the TA at 1:55 pm on 28 July 2020. The implied condition that the power conferred by s 128 of the Act be exercised reasonably required the delegate to give meaningful consideration to those circumstances. The delegate’s failure to do so was material. Had the delegate read and considered the text of those emails there is a real chance the delegate, acting reasonably, would have formed the view that the circumstances in which the applicant departed Australia without obtaining the Minister’s permission were ambiguous, and for that reason required further investigation, including making inquiries of the applicant. That, at the very least, could realistically have led the delegate, again acting reasonably, to decide against cancelling the TPV by using the F Procedure and instead decide to use the E Procedure. In those circumstances, the delegate’s failure to read or consider the email the TA sent to the Department at 1:39 pm on 28 July 2020, and the email the Department sent to the TA at 1:55 pm on 28 July 2020, rendered the Cancellation Decision legally unreasonable, and, for that reason, a decision made in excess of jurisdiction.
I next turn to the applicant’s contention that the delegate did not consider the legal or practical consequences of the Cancellation Decision. The delegate gave “some weight against cancelling the” TPV to the applicant having been granted a TPV;[61] and the delegate also referred to the cancellation of the TPV causing some hardship to the applicant because he would no longer hold a valid visa for travel to Australia. There is, however, one significant legal consequence of the cancellation of the TPV the delegate did not consider; and that is the cancellation of the TPV would expose the applicant to the risk of his application for a SHEV being refused on the sole ground that he is not in Australia, and would have no right to enter Australia; and that the applicant would continue to be exposed to such risk up to the time the Minister were to decide the applicant’s request that the Cancellation Decision be revoked. The implied condition that the power conferred by s 128 of the Act be exercised reasonably required the delegate to consider this risk; and that is because, as I have found, the usual incident of a discretionary power that it be exercised reasonably requires, in the case of s 128 of the Act, the Minister to obtain and consider information reasonably available to him or her that is relevant to whether to cancel the visa. Had the delegate considered this risk, there is a real prospect the delegate would have elected not to cancel the TPV by means of the F Procedure but would instead have sought to cancel the TPV by means of the E Procedure. The delegate’s failure to consider this risk, therefore, was material, and thus renders the Cancellation Decision legally unreasonable.
[61] CB191, [15]
Finally, there is the applicant’s contention that the delegate ought to have considered, but failed to consider, the practical consequences of the Cancellation Decision. I accept the applicant’s submission that it must have been obvious to the delegate that information available to the Department would have showed the applicant had no right to reside anywhere other than in Afghanistan, and that he only had temporary rights to visit Iran. Further, given s 36(3) of the Act, and the reasonable assumption that the delegate would be aware of s 36(3), the delegate could not reasonably have assumed there was any country other than Afghanistan to which the applicant could return if the TPV were cancelled. The condition of reasonableness attached to the exercise of the power conferred by s 128 of the Act required the delegate to consider what would happen to the applicant in these circumstances. The Decision Record, however, contains no assessment of what would or might happen to the applicant once his TPV were cancelled. In particular, the Decision Record does not address whether the applicant’s only option would be to return to Afghanistan, his country of nationality, and thus be exposed to the very harm from which protection in Australia was granted.
Counsel for the Minister submitted there was no information before the delegate on the basis of which any such assessment could have been made. I am not prepared to find that the delegate’s silence is due to lack of information. If there was a lack of information, it is reasonable to expect the delegate to have said so. I find the delegate did not address, or at least actively or meaningfully address, the practical consequences of cancelling the TPV. In any event, it is reasonable to expect the delegate would have sufficient information on the basis of which he or she could have assessed the risk of harm the applicant would face as an Afghan Hazara refugee, without the right to enter Australia which had granted him protection, and with only limited rights to remain in Iran.
The delegate’s failure to consider the practical consequence of cancelling the TPV was material. Had the delegate considered those consequences, there is a real prospect the delegate would have elected not to cancel the TPV by means of the F Procedure but instead would have sought to cancel the TPV by means of the E Procedure. The delegate’s failure to consider these matters, therefore, renders the Cancellation Decision legally unreasonable, and, for that reason, a decision made in excess of jurisdiction.
The applicant, therefore, succeeds on ground 5. I do not propose to consider grounds 3, 4, or 6.
GROUND 2 - CLAIM FOR INJUNCTION
The applicant claims an injunction to restrain the Minister from determining the applicant’s SHEV application pending the applicant’s return to Australia. The necessity for an injunction, the applicant submits, arises from the combination of three things: the applicant is outside Australia; the applicant’s being in Australia is a criterion the applicant must satisfy to be entitled to the grant of a SHEV; and there is a risk the Minister will consider the applicant’s application for a SHEV before the applicant returns to Australia and, for that reason, decide not to grant the SHEV. It appears, therefore, that the applicant is seeking an interlocutory injunction.
The purpose of the grant of an interlocutory injunction is “to keep matters in status quo until the rights of the parties can be determined at the hearing of the suit”.[62] The corollary of this principle is that an applicant seeking an interlocutory injunction “must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought”.[63] Counsel for the applicant submits that the right in aid of which the applicant claims the injunction is the right to have his SHEV application determined according to law. Counsel submits it would be legally unreasonable for the Minister to consider the applicant’s application for a SHEV while the applicant is outside Australia.
[62] Sir Frederick Jordan, Chapters on Equity in New South Wales, quoted with approval by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, at page 216.
[63] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, at page 217 (Gleeson CJ)
That the Minister may decide an application for a SHEV while the applicant is outside Australia does not, by itself, give rise to an arguable case that the Minister would be acting legally unreasonably. Thus, in my view, the principles that are engaged by the applicant’s claim for injunction are not those relating to the grant of interlocutory injunctions. The relevant question is, given I have concluded the Cancellation Decision is infected by jurisdictional error, is the applicant entitled to any injunctive relief in addition to the relief that usually follows from a finding of jurisdictional error?
In my opinion the applicant is so entitled. This Court has a statutory implied power to make such orders as are reasonably necessary to preserve the subject matter of the suit before it.[64] The subject matter of the proceeding before me is the applicant’s rights attached to the TPV, namely, the applicant’s right to enter and remain in Australia, and to take advantage of that right by applying in Australia for a SHEV. I have found the Minister, acting through his delegate, made a jurisdictional error in purporting to cancel the TPV on 18 September 2020. It necessarily follows that, since that day, the Minister has without lawful cause prevented the applicant from exercising the rights attached to the TPV to enter Australia; and the Minister, therefore, has prevented the applicant from being in a position to satisfy an essential condition to the grant of a SHEV. If no injunction is granted, there is a risk the Minister will proceed to decide the applicant’s application for a SHEV before the applicant arrives in Australia. If that were to occur, an important incident of the rights the applicant in this proceeding vindicated, namely, his right under the TPV to be in Australia and apply for a SHEV, would be eviscerated. To give full effect to my conclusion that the Cancellation Decision was made in excess of jurisdiction, therefore, it will be necessary to restrain the Minister for some period from proceeding to decide the applicant’s application for a SHEV.
[64] Tait v The Queen (1962) 108 CLR 620, at page 623: “I have never had any doubt that the incidental powers of the Court can preserve any subject matter, human or not, pending a decision”. (Dixon CJ, in argument)
It would not, however, be appropriate that the Minister be restrained from deciding the applicant’s application for a SHEV until such time as the applicant returns to Australia, whenever that might occur. The time for which the Minister ought to be restrained should not exceed the period for which the Cancellation Decision can reasonably be said to have prevented the applicant from entering Australia. A fair estimate of the time is around 11 months, being the period commencing from the day of the Cancellation Decision and ending on 25 August 2021, being the day on which I propose to pronounce orders in this proceeding. I therefore propose to order that up to and including 25 July 2022, or up to and including a day that is 7 days after the applicant enters Australia, whichever occurs first, the Minister be restrained from deciding the applicant’s application for a SHEV.
DISPOSITION
I propose to order that the Cancellation Decision be set aside. I also propose to grant an injunction to the effect I have described above. I will grant the parties liberty to apply to vary or discharge the injunction I propose to grant for any reason.
As for costs, counsel agreed that costs should follow the event. As the applicant has succeeded, I propose to order that the Minister pay the applicant’s costs as agreed or as assessed.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 25 August 2021
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