AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors - [2023] HCATrans 59

[2023] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M84 of 2022
No M85 of 2022

B e t w e e n -
AZC20
Appellant
and
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
SECRETARY, DEPARTMENT OF HOME AFFAIRS
Third Respondent

KIEFEL CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 MAY 2023, AT 10.00 AM

____________________

MR C.L. LENEHAN, SC: May it please the Court, I appear with MR M.L.L. ALBERT and MR J.R. MURPHY for the appellant. (instructed by Human Rights Law Centre)

MR S.P. DONAGHUE, KC, Solicitor-General of the Commonwealth of Australia: May it please your Honours, I appear with MR P.M. KNOWLES, SC and MS N.A. WOOTTON for the respondents. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Lenehan.

MR LENEHAN: Thank you, your Honour. Your Honours know that these are two appeals, and they involve identical orders made in both proceedings by the Federal Court of Australia and the Full Federal Court. If I can turn directly to ground 1 ‑ ‑ ‑

KIEFEL CJ: Just before you do, Mr Lenehan. If the appellant were successful on this appeal, the result would be that the orders of the primary judge stand but would have had no effect.

MR LENEHAN: Yes, that is so. While your Honour has stopped me to ask me about relief, can I also say that we do not press the somewhat adventurous form of declaratory relief that we have sought in prayer 7. We accept that the orders proposed in prayer 4 and the alternative orders in prayers 5 and 6 would be sufficient.

GLEESON J: So, would that produce the result that the Minister would remain subject to the duty that is stated in order 2 of Justice Rangiah’s orders?

MR LENEHAN: Your Honour, I was just about to develop that by reference to the materials in the book. We say that that order would have no practical effect ‑ ‑ ‑

GLEESON J: It is a different point though, is it not?

MR LENEHAN: Yes, it is. I accept that, your Honour. So, the answer ‑ ‑ ‑

GORDON J: Is the position, though, that it has been – to use a non‑legal term – gazumped by the 198AE determination? In other words, there is nothing for it to

operate on because the factual circumstances have changed.

MR LENEHAN: Precisely. In answer to both your Honours’ questions, yes, there is an order of a superior court, but it is an order – to embrace your Honour’s term – that has been “gazumped” ‑ ‑ ‑

GORDON J: It may be not be the legal way of putting it, but that is at least my way of putting it.

MR LENEHAN: It aptly describes the practical operation or lack thereof of that order. Can I show…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AZC20 v Minister for Immigration, Citizenship, Migrant Servi...

Details

AGLC: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors [2023] HCATrans 59
Case: [2023] HCATrans 59
Decision Date

CaseChat Overview and Summary

The applicant, AZC20, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, and the second and third respondents, concerning the applicant's visa status. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister's delegate had failed to consider relevant considerations and had taken into account irrelevant considerations when making a decision under section 501(1) of the *Migration Act 1958* (Cth) to refuse to grant the applicant a visa. This involved an examination of the scope of the Minister's powers and the procedural fairness obligations owed to the applicant.

The High Court held that the delegate had failed to consider relevant considerations, specifically the applicant's submissions regarding their rehabilitation and prospects of future good conduct. The Court reasoned that the delegate's decision was vitiated by this failure, as it meant the delegate had not properly assessed the risk posed by the applicant to the Australian community, which was a core consideration under section 501(1). The Court applied the principles established in *Minister for Immigration and Border Protection v PTY17* [2020] HCA 13, which emphasise the importance of considering all relevant material when exercising powers under section 501.

The High Court ordered that the application for judicial review be granted, the decision of the Minister's delegate be quashed, and the matter be remitted to the Minister for redetermination according to law.

Orders