BIW17 v Minister for Immigration and Border Protection & Anor

[2018] HCATrans 3

[2018] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P3 of 2018

B e t w e e n -

BIW17

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 29 JANUARY 2018, AT 2.14 PM

Copyright in the High Court of Australia

HIS HONOUR:   Slightly before 5:00 pm Eastern Standard Time yesterday I made orders dismissing an application for interlocutory relief in this application for special leave to appeal.  The parties were, at that time, notified of the orders and of my reasons.  I now publish those reasons and direct that they be incorporated into the transcript.

This is an urgent application for interlocutory relief in an application for special leave to appeal from the decision of the Federal Court in BIW17 v Minister for Immigration and Border Protection [2017] FCA 1606. The Federal Court by that decision dismissed an appeal from the decision of the Federal Circuit Court in BIW17 v Minister for Immigration [2017] FCCA 1857 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal’s decision, made on 15 March 2017, had set aside a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant the applicant a Protection (Class XA) visa and had substituted a decision refusing to grant the applicant a Temporary Protection (Class XD) visa.

The decision of the Federal Court was made on 14 November 2017 for reasons then given extemporaneously.  Revised reasons were subsequently published on 21 December 2017.  

The application for special leave to appeal was filed in this court on 18 January 2018 and was served on the Minister on 24 January 2018. 

On 25 January 2018, the applicant was notified by the Australian Border Force of an intention to remove him from Australia under s 198(6) of the Migration Act 1958 (Cth) (“the Act”). The Department of Home Affairs then acknowledged the filing of the application for special leave to appeal but indicated that it proposed to proceed with the removal unless restrained by judicial order. The removal is scheduled to occur at 1:45 am AWST on Monday, 29 January 2018.

A summons seeking an order restraining the removal of the applicant pending the determination of the special leave application was filed on behalf of the applicant on Saturday, 27 January 2018.  On the same day, a deputy registrar of this Court directed that the applicant and the Minister that day file written submissions relating to the summons.  The applicant and the Minister complied with that direction.  The applicant, through his counsel, has by email to the deputy registrar today, Sunday, 28 January 2018, responded to aspects of the Minister’s submissions by attempting to file submissions in reply.  The applicant had not sought or obtained leave to file those submissions and his counsel should have known better than to attempt to file them.

In view of the urgency of the interlocutory application and the consequence for the applicant of failing to obtain the relief he seeks, however, I am prepared to grant leave for the submissions in reply to be filed and I have taken the contents of those submissions into account.

For reasons I will develop, I am satisfied that the application for an order restraining the removal of the applicant pending the determination of the special leave application is appropriate to be determined by me today, without listing it for hearing. I will direct that it be so determined pursuant to r 13.03.1 of the High Court Rules 2004 (Cth).

The application is misconceived to the extent that it relies on the assertion of an absence of power to remove the applicant under s 198(6) of the Act. It may be accepted that the duty imposed on an officer of the Department by that section to remove an unlawful non‑citizen “as soon as reasonably practicable” does not compel removal of the applicant pending the determination of the special leave application. But there is no basis for the assertion that the duty is incapable of being performed until the special leave application is determined. Nor is there any basis for characterising the proposed removal of the applicant as a contempt of court or an abuse of process.

To the extent that the applicant attempts to rely on apprehended bias arising from public statements of the Minister, it is sufficient to state that the applicant has adduced no evidence and has identified no process of reasoning which would even arguably support the conclusion that officers of the Department responsible for his removal might be perceived to act other than impartially in the performance of their statutory duty. I do not need to decide whether the duty imposed by s 198(6) is conditioned by a requirement that it be exercised free from apprehended bias.

The application for an order restraining his removal falls to be determined by reference to the ordinary and well‑established principles which inform the discretion of this Court to grant a stay or injunction pending the determination of a special leave application.  Those principles were addressed by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84 and by Mason CJ in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1991) 65 ALJR 360; 99 ALR 417; [1991] HCA 13. Suffice it to say that a stay or an injunction will be granted only in “exceptional circumstances” and that the requisite exceptional circumstances will ordinarily be circumstances in which the Court or a Justice is persuaded that there is at least a “substantial prospect” that special leave will be granted and that the balance of convenience favours the grant of the stay or injunction.

Acknowledging that there may be circumstances of such urgency that an injunction might be granted for an interim period to allow adequate argument to occur on whether there is a substantial prospect that special leave will be granted, cases involving circumstances of that nature must be rare. They must be especially rare once an application for special leave to appeal has been filed, given that Pt 41 of the High Court Rules not only requires an application to be made in a form which sets out the applicant’s argument in support of the grant of special leave but allows an application to be determined without being listed for hearing. The application is to be treated as containing an applicant’s full argument. There can be no expectation that it will be supplemented by further written submissions or by oral submissions.

Here, the application for special leave to appeal has been supplemented by a further 17‑page submission in chief in support of the relief sought in the summons as well as a 4‑page submission in reply.  I reject the contention made on behalf of the applicant for the first time in submissions in reply that an interim injunction should be granted to allow further argument.

Applying the ordinary and well‑established principles to which I have referred, I am not persuaded that such exceptional circumstances exist in the present case as would justify making an order of the kind which the applicant now seeks.  That is because I am not persuaded that the present is a case in which the application for special leave to appeal has substantial prospects of success.

The application for special leave to appeal raises three grounds of challenge to the decision of the Federal Court.  It is convenient to deal with them in turn.

The first ground is that the Federal Court erred in the exercise of its discretion by denying the applicant’s request for an adjournment to enable him to engage legal representation.  In response to that ground, it is sufficient to state that the reasons of the Federal Court for refusing the adjournment set out in BIW17 v Minister for Immigration and Border Protection [2017] FCA 1606 at [29] disclose no appealable error.

Understanding the second and third grounds requires some reference to the background to the Tribunal’s decision of 15 March 2017. The applicant is a Vietnamese citizen who arrived in Australia by boat on 23 March 2013 and who applied for a Protection (Class XA) visa on 14 June 2014. Section 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) operated to have the effect that, from 16 December 2014, that application was taken not to be, and never to have been, a valid application for a Protection (Class XA) visa but rather was taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa. Notwithstanding the operation of those provisions, a delegate of the Minister purported to make a decision refusing to grant the applicant a Protection (Class XA) visa on 16 December 2014. The applicant applied to the Tribunal for review of the delegate’s decision on 23 December 2014.

Following earlier proceedings in the Tribunal and the Federal Circuit Court the precise effect of which is apparently in contention between the parties but which need not be recounted, the application for review came on for hearing before the Tribunal as ultimately constituted on 15 December 2016 and then subsequently on 3 March 2017.  The applicant was represented on both occasions by a migration agent.  The reason for the second hearing was that the migration agent raised an issue with the Tribunal as to the quality of the interpretation of the applicant’s evidence on 15 December 2016.  The migration agent also requested that the Tribunal be reconstituted by a different Tribunal member.  In its reasons, the Tribunal indicated that it proposed to have no regard to the evidence that had been given by the applicant on 15 December 2016.  The Tribunal declined the request for reconstitution for the stated reason that it did not consider there to be any basis upon which a fair‑minded and appropriately informed lay observer might reasonably apprehend that the Tribunal member might not bring a fair, impartial and independent mind to the determination of the review on its merits.

The second ground of challenge to the decision of the Federal Court involves a question of law which was not raised before the Federal Court, although it was raised at least tangentially before the Tribunal and the Federal Circuit Court.  The question is whether the Tribunal had jurisdiction to determine whether the applicant satisfied criteria for the grant of a Temporary Protection (Class XD) visa in circumstances where the delegate had purported to refuse to grant the applicant a Protection (Class XA) visa.  The applicant’s argument that the Tribunal lacked that jurisdiction, in my opinion, cannot be sustained and is insufficiently arguable to attract a grant of special leave to appeal.

Accepting, as does the Minister, that the purported decision of the delegate was affected by jurisdictional error and that the decision standing alone was therefore ineffective in law to discharge the duties of the Minister under ss 47 and 65 of the Act to consider and determine a valid application, the purported decision was nevertheless a decision that was made in fact in the purported determination of a valid application. As a decision that was so made in fact, it answered the description of “a decision to refuse to grant a protection visa” so as to amount to a “Part 7‑reviewable decision” within the meaning of s 411(1)(c) of the Act and to be capable of giving rise to a valid application for review under Pt 7 of the Act. Such an application having been made by the applicant, the jurisdiction of the Tribunal in conducting the review under s 414 and in exercising the powers conferred by s 415 was to consider for itself on the material before it whether or not the visa criteria which should have been considered by the delegate were met. That is what the Tribunal did.

That understanding of the operation of the critical provisions accords with a long line of authority in the Full Court of the Federal Court which includes Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 and Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344. The applicant relies for the contrary contention on Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486. In SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at 497 [30], Black CJ and Allsop J noted that “[t]he ratio decidendi of Li 103 FCR 486 at [81]-[82] is that a valid application is not merely a requirement affecting the delegate’s power, it also affects the authority of the Tribunal’. Their Honours went on to explain that the view acted on in Li was one which “recognises, through s 415 and ss 47 and 65, that only a valid application must be considered by the Tribunal”. Given that the applicant’s argument accepts the validity of his visa application and seeks to rely on the invalidity of the decision which the delegate made on that valid application, Li does not assist him.

The final ground on which special leave to appeal is sought involves a challenge to the rejection by the Federal Court in BIW17 v Minister for Immigration and Border Protection [2017] FCA 1606 at [38] of a claim that the Tribunal had denied the applicant procedural fairness by refusing the migration agent’s request for reconstitution. The applicant does not assert that the Federal Court misunderstood any relevant legal principle. Nor does the argument advanced on behalf of the applicant disclose any reason for considering the Federal Court’s conclusion to have been in error.

The orders I make are as follows:

1.The applicant’s summons filed on 27 January 2018 is to be determined without listing it for hearing.

2.        The summons is dismissed.

3.The costs of the summons are costs in the application for special leave to appeal.

The Court will now adjourn.

AT 2.14 PM THE MATTER WAS CONCLUDED