BCU22 v Minister for Home Affairs
[2022] FCA 1255
•21 October 2022
FEDERAL COURT OF AUSTRALIA
BCU22 v Minister for Home Affairs [2022] FCA 1255
File number: VID 191 of 2022 Judgment of: SNADEN J Date of judgment: 21 October 2022 Catchwords: MIGRATION – where visa cancelled under s 501CA of the Migration Act 1958 (Cth) – where applicant sought revocation of cancellation decision – where Minister declined to revoke cancellation decision – application for judicial review – whether Minister failed to consider the impact of prolonged or indefinite immigration detention – whether that constituted another reason to revoke cancellation decision – whether jurisdictional error – where respondent concedes jurisdictional error – orders made Legislation: Migration Act 1958 (Cth) ss 501(3A), 501CA Cases cited: Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 7 Date of hearing: Determined on the papers Counsel for the Applicant: Ms S Pathan Solicitor for the Applicant: Victoria Legal Aid Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 191 of 2022 BETWEEN: BCU22
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
21 OCTOBER 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue, removing into this court and quashing the decision made on 11 March 2022 under s 501CA(4) of the Migration Act 1958 (the “Act”) not to revoke the decision made on 9 January 2017 to cancel the applicant’s class BF transitional (permanent) visa under s 501(3A) of the Act.
2.A writ of mandamus issue, requiring that the respondent determine according to law the applicant’s request for revocation of the decision of 9 January 2017 referred to in order 1.
3.The respondent pay the applicant’s costs fixed in the amount of $6,500.00.
NOTATION:
4.The respondent concedes that the decision made on 11 March 2022 is affected by jurisdictional error because it was made without proper consideration of the applicant’s representation that the cancellation ought to be revoked because, otherwise, he would face prolonged or indefinite detention.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
Prior to 9 January 2017, the applicant was the holder of a class BF transitional (permanent) visa. On that date, that visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the “Act”). The applicant subsequently applied to have that cancellation revoked under s 501CA(4) of the Act and, on 11 March 2022, the respondent (or her predecessor) declined that application. By an originating application dated 1 April 2022, the applicant seeks from this court prerogative relief directed to that non-revocation decision.
The applicant made a number of submissions as to why the cancellation of his visa ought to be revoked. Amongst them was that, in the absence of revocation, he would be removed into immigration detention, which would be prolonged or indefinite. In making the decision of 11 March 2022, the respondent (or her predecessor) failed to take account of that submission. The applicant maintains that, by that failure, that decision was a product of jurisdictional error, which this court should correct by the grant of prerogative relief.
The respondent concedes that point. In consequence of that concession, the parties have consented to a draft minute of orders that they ask the court to make. By them, they propose that the decision of 11 March 2022 be set aside, that the applicant’s application for the revocation of the cancellation of his visa be remitted to the respondent to be decided according to law, and for the respondent to pay the applicant’s costs in a fixed sum.
In VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921, Colvin J made the following relevant observations about orders proposed by consent in matters such as the present (at [3]-[5]):
Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error. As explained by French J in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [12], there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. It is necessary for this to occur because it is not a matter for the parties to determine by agreement whether the extent of executive authority has been exceeded. Constitutional integrity requires that the limits upon the extent of judicial power to confine or constrain the exercise of executive power are carefully observed.
Further, in cases where the proposed orders will result in the matter being remitted, it is necessary for sufficient guidance to be provided whether by way of note to the orders (where that will be sufficient) or by publication of reasons to enable a further exercise of power according to law as determined by the Court. It is always a significant step for a court to exercise its jurisdiction to supervise the actions of the repositories of executive power and it is appropriate that due respect be afforded to a Tribunal, decision-maker or other repository by communicating the reasons for the grant of public law relief.
Finally, in many instances where public law relief is granted, the orders will affect the exercise of powers which have significance beyond the interests of the parties before the Court and for that reason the Court should make plain why it has granted relief.
Presently, the respondent concedes that the decision of 11 March 2022 was affected by jurisdictional error; specifically in that the former Minister failed properly to consider the applicant’s submission that the cancellation of his visa should be revoked so that he might avoid the prospect of prolonged or indefinite detention.
I have reviewed the reasons that were published in support of that decision and the written submissions that the applicant proffered in support of his application for revocation. Having done so, I am satisfied that the respondent’s concession is appropriately made. There can be no doubt that the respondent (or her predecessor) was obliged, in considering whether or not to revoke the cancellation of the applicant’s visa, to consider the representations that he advanced as to why that course ought to be taken: Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417, 425 [24] (Kiefel CJ, Keane, Gordon and Steward JJ). If sufficiently material, a failure to do so will render any subsequent decision beyond what the respondent (or her predecessor) had jurisdiction under the Act to decide. Here, the representation that went unconsidered—namely, that the applicant would, absent revocation, be subjected to prolonged or indefinite immigration detention—was sufficiently material, in that, had it been considered, it is possible that the application for revocation might have been decided differently.
It necessarily follows that the decision of 11 March 2022 was a product of jurisdictional error, which this court should correct via a grant of prerogative relief. The orders proposed by consent are appropriate and shall (with minor editing) be made.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 21 October 2022
0
4
1