BVB18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 168
Federal Circuit and Family Court of Australia
(DIVISION 2)
BVB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 168
File number: MLG 939 of 2018 Judgment of: JUDGE FORBES Date of judgment: 6 March 2023 Catchwords: MIGRATION – practice and procedure - judicial review of refusal to grant protection visa - application for adjournment of final hearing – applicant citizen of Afghanistan and Hazara Shia – where applicant has sought Ministerial intervention to allow new protection visa application – whether changed circumstances in Afghanistan sufficient basis for adjournment – where hearing of application may prove to be futile - where Minister under no duty to make decision – duty of the Court to determine judicial review application – consideration of efficient use of judicial resources, costs and overarching obligations of civil practice Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 158, 159
Migration Act 1958 (Cth) s 36, 48A, 48B
Cases cited: COF17 v Minister for Immigration, Citizenship, Migrant services and Multicultural Affairs [2021] FedCFamC2G 145
MZAPC v Minister for Immigration & Border Protection [2021] HCA 17
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission: 2 March 2023 Date of hearing: 6 March 2023 Place: Melbourne Counsel for the Applicant: Mr Overend of Counsel Solicitor for the Applicant: Erskine Rodan and Associates Counsel for the First Respondent: Ms McInnes of Counsel Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 939 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BVB18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
6 March 2023
THE COURT ORDERS THAT:
1.The Applicant’s application for an adjournment of the Final Hearing be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE FORBES
In this matter the applicant seeks judicial review of a decision made by the Immigration Assessment Authority on 16 March 2018. The authority affirmed a decision made by a delegate of the Minister not to grant the applicant a Safe Haven Enterprise (subclass 790) visa.
The applicant seeks an adjournment of his judicial review application to enable the Minister to consider permitting him to apply for a further visa. The Minister opposes the application.
Background
The applicant, who was a citizen of Afghanistan, arrived on Christmas Island as an unauthorised maritime arrival on 16 July 2013. On 10 January 2017 the applicant applied for the visa.
On 18 May 2017, the delegate of the Minister refused the visa application and the delegate's decision was referred to the Authority for review under Part 7AA of the Act.
On 14 June 2017, the applicant provided a submission to the authority.
On 16 March 2018, the authority affirmed the delegate's decision.
For the purposes of this adjournment application it is not necessary for the Court to articulate the applicant's claims for protection in detail. Suffice to say, the applicant is a Hazara Shia from Afghanistan. He was born in a village in the Jaghori District and worked as a taxi driver in Ghazni and Kabul.
In his claim for protection, the applicant claims an interaction with persons who he believed were assisting the Taliban in relation to a proposed terrorist act. After this interaction the applicant claims that he was sought by members of the Taliban which required him to live in hiding before fleeing to Pakistan. He claims to be a target of the Taliban and fears being harmed by them because of his Hazara ethnicity and Shia faith and because of a report he made to the police.
I mention these claims for protection because they are relevant to the applicant's adjournment application.
The Authority considered the applicant's claims individually and cumulatively and was not satisfied that his fear of persecution was well-founded[1]. The Authority concluded that the applicant did not meet the refugee protection requirements of s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). Among other things, the Authority found that country information did not support that persons who had spent time outside Afghanistan would be targeted, nor was the Authority satisfied that the applicant would face a real chance of harm on return as a failed asylum seeker. The Authority found that the applicant would have to transit through Kabul on return but the chance of him being harmed through a targeted attack or generalised violence before travelling to Mazar-e-Sharif was low.
[1] Court Book page 164-165
Similarly, the Authority concluded that the applicant did not meet the complementary protection requirements of s 36(2)(aa) of the Act. While accepting that the applicant may face some discrimination, the Authority was satisfied that this would be at a low level and would not constitute a real risk that the applicant would suffer significant harm.
Application for judicial review
By an application dated 11 April 2018 the applicant sought judicial review of the Authority’s decision. The application for review relies two grounds which (omitting particulars) are as follows:
(1)The Authority considered the evidence that "some Hazara men came looking for him in Jaghori, approaching people at a community gathering and then visiting his parents to ask about his whereabouts" in a way that was illogical; and
(2)The Authority considered but unreasonably refused to exercise its power to get new information from the Applicant about the video of his brother which was broadcast on television.
It is not presently necessary to further explore these grounds in order to determine the adjournment application. However, the Minister submits that neither ground reveals judicial error in the Authority’s decision and that there is no basis for the relief sought by the applicant. The Minister has filed a detailed written submission, dated 26 October 2022, outlining the reasons why the application for judicial review should be dismissed.
Adjournment application
Under s 48A of the Act, people who have applied for a protection visa but have had their application refused are not permitted to make another protection visa application. However, pursuant to s 48B, the Minister can personally intervene to lift that “bar”.
The applicant is a person who is barred from making a fresh application. However, in an affidavit filed in support of this adjournment application, the applicant's solicitor deposes that a request has been made to the Minister to consider intervention and the exercise of his discretion to allow another protection visa application.
Based on emails annexed to a more recent affidavit filed by the applicant's solicitor, it appears that the applicant's request for Ministerial intervention is currently under consideration by the Minister, as part of a larger cohort of similar applications. The applicant has been informed that the Minister’s power to intervene is non-compellable and non-delegable and that the Department cannot provide a timeframe on when any decision is likely to be made.
The applicant seeks an adjournment on the following bases. First, it is contended on his behalf that the changed security situation in Afghanistan, including the ascendancy of the Taliban, underpins his application for Ministerial intervention. The applicant’s case is that he was encouraged to make the application for intervention after a public representation by a former Minister that such requests could be made.
The applicant submits that if the Minister intervenes and lifts the bar allowing him to make a new protection visa application, the current judicial review application would be rendered otiose and would become no more than an unnecessary "sterile academic argument about facts which are plainly no longer true"[2].
[2] Applicant’s Written Submissions on Adjournment Application filed on 2 March 2023, page 4 [10]
The applicant submits that the Court should infer from correspondence that a decision from the Minister is “only a matter of time” given the indication from the Department that the applicant's request for intervention is currently under consideration. While acknowledging that the Minister's power under s 48B is non-compellable and non-delegable, and that there are no timeframes as to when a decision will be made, the applicant submits that a decision of some kind will in due course be made.
A central thrust of the applicant's adjournment application is that hearing and determining the current application for judicial review may prove to be an exercise in futility, in the course of which significant judicial time and Court resources will be consumed and the parties put to significant unnecessary cost. In a written submission filed in support of the adjournment application, which I have read and considered, the applicant (quite appropriately) emphasises the already significant pressures on the business of this Court and the statutory requirements of this Court to turn its mind to alternative dispute resolution processes in appropriate cases. (See ss 158 of 159 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCOA Act)) and the overarching principles of dispute resolution which provide that the Court must pursue "the efficient use of the judicial and administrative resources available for the purposes of the Court" and "the efficient disposal of the Court's overall caseload"[3].
[3] Section 190(2)(b)-(c) and s 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)
The applicant also points to the Court’s inherent jurisdiction to administer the business before it and the power of the Court to adjourn a proceeding where it considers it to be in the best interests of justice to do so.
The applicant urges the Court not to allow more private or public money to be spent on this litigation, including the prospect of appeals, until the Minister determines whether he will intervene and allow the applicant to make a new protection visa application. The applicant also submits that a request for an adjournment of this kind is not novel and that the Court has previously been prepared to adjourn matters, on the basis of the case management imperatives of the FCFCOA Act, to allow the process of Ministerial consideration to play out[4].
[4] COF17 v Minister for Immigration, Citizenship, Migrant services and Multicultural Affairs [2021] FedCFamC2G 145
Finally, on the important question of prejudice, the applicant submits that there is very limited if any substantive prejudice that would flow from the granting of an adjournment. It is submitted that any prejudice to the Minister is outweighed by the potential saving of resources, costs and practitioner energy which might otherwise flow from arguing a judicial review proceeding which ultimately proves futile.
The Minister opposes the application. The Minister has also filed a written submission which addresses the application adjournment and I refer to paragraphs 3 to 10 of the ministers written submissions dated 26 October 2022.
The grounds for the Minister's opposition can be shortly stated. First and foremost, the Minister contends that the current situation in Afghanistan does not have any bearing on whether the Authority's decision is affected by jurisdictional error. In support of that proposition the Minister refers to the recent Full Court decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164 (EGZ17) at [28]-[29] and the authorities referred to therein.
In EGZ17, the Full Court reiterated that the Court's task on judicial review is to determine, on the grounds of judicial review advanced, whether the applicant has discharged the onus of showing that the decision under review was not made in accordance with the authority conferred by the relevant statute. Citing MZAPC v Minister for Immigration & Border Protection [2021] HCA 17, EGZ17 reiterates that in a judicial review proceeding, the jurisdiction of the Court is no more and no less than to ensure that the decision-maker stayed within the limits of the decision-making authority conferred upon it by statute. The question of whether a decision was made in accordance with the authority conferred by the relevant statute, or whether the decision-maker exceeded the limits of its authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority, is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised.
It is the Minister's submission that this judicial review application should proceed in the usual course.
Counsel for the Minister submits that there has been no commitment that fresh visa applications will be permitted and that the ministerial commitment extends only to the extent that the applicant may request intervention (as is the applicant's statutory right). The Minister reminds the Court that the powers found in ss 48A and 48B of the Act are personal, non-compellable, and are not bound by any timeframes. The only condition expressly stated for the exercise of the Minister’s power to lift the bar under s 48B(1) is “[i]f the Minister thinks that it is in the public interest to do so”.
The Minister submits that nothing in the applicant's submissions provides a foundation for the Court to make any finding or inference as to the likelihood or timing of any intervention.
The Minister submits that the mere fact of an application for intervention in and of itself is not a proper basis for adjournment where there is a live application before the Court requiring judicial determination in the ordinary course of business. In particular, addressing the applicant's submissions about the use of Court resources, costs and the like, the Minister submits that it would actually be contrary to the overarching purpose of civil procedure for a matter to be left languishing in the Court lists for an unknown period of time, awaiting an event that may never occur.
Determination
There are powerful considerations which weigh in favour of the grant of an adjournment in this case.
First, there is the incontrovertible fact that the security situation in Afghanistan at present is different to that which existed at the time the applicant made his visa application and the time when the delegate and Authority determined against him. That changed security situation no doubt prompted the Minister's public statement that under some circumstances, illegal maritime arrivals who have had protection visas refused may be able to apply to request that the Minister intervene and allow them to apply for another protection visa.
Secondly, while the applicant has applied for ministerial intervention and accepting that there is no compellable obligation on the Minister, the applicant is not alone in doing so. This is not a case where the applicant's application for intervention is a one-off, travelling a lone journey through the Department's administrative processes without any expectation of a decision. Rather, there is at least some evidence that his application is under some form of consideration with a cohort of similar applications and from that I infer that if there a decision at some point in time it will probably affect the cohort generally.
The difficulty is that the Court cannot speculate as to when that decision will be made, what that decision will be or how it will affect the applicant. It is a matter for the Minister personally and I infer from the Ministers opposition to this application that a decision is not imminent.
Thirdly, I have given careful consideration to the applicant's submissions regarding the efficient use of judicial and Court resources and the possibility of parties being subjected to significant cost (including the public purse) in pursuing litigation which may ultimately prove futile. These considerations ring loudly in the ears of judges in an extremely busy Court in which there is an endless stream of migration litigation, long waiting lists and huge pressures to hear and determine ever more complex judicial review applications. The time and effort which goes into these cases from all concerned can never be underestimated and there can be no greater frustration than for all that to come to nought.
If there was some clear indication from the Minister as to if and when a decision might be made in relation to applications for intervention by Afghan protection visa applicants, I would be inclined to grant the adjournment for all the reasons advanced by the applicant.
However, that appears not to be the case.
In the ordinary course of its business the Court should hear and determine matters within its jurisdiction in the order in which they come. The Court cannot speculate about how the law might change, how the Executive may exercise its powers or how a responsible Minister may exercise his or her personal discretion in relation to a particular applicant or a cohort of them. In my view, in the absence of clear evidence that a future event is likely to impact a case before the Court which may warrant an adjournment for a defined period, there is a duty on the Court to discharge its task, notwithstanding the risk that something may come to pass which renders all that effort futile. The separation of powers between the executive and the judiciary demands that the Court exercise its function in accordance with the law as it stands.
The task of the court is no more and no less than to ensure that the Authority stayed within the limits of the decision-making authority conferred upon it by statute. In this case, the current situation in Afghanistan and the potential for ministerial intervention on behalf of the applicant, have no bearing on whether the Authority's decision is affected by jurisdictional error.
The application for adjournment is refused and the substantive application should be heard.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 6 March 2023
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