FEDERAL COURT OF AUSTRALIA
BXI23 v Minister for Immigration and Multicultural Affairs [2024] FCA 1251
File number: NSD 889 of 2023 Judgment of: YATES J Date of judgment: 30 October 2024 Catchwords: MIGRATION – application for relief under s 39B of the Judiciary Act 1903 (Cth) – requests made for Ministerial intervention under s 48B of the Migration Act 1958 (Cth) – where the respondent accepts that decisions were made in excess of the executive power of the Commonwealth Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 48B
Federal Court Rules 2011 (Cth) r 4.12
Cases cited: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 408 ALR 381
Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41; 243 CLR 319
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; 211 CLR 441
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of last submission/s: 11 October 2024 Date of hearing: 15 December 2023 Counsel for the Applicant: Applicant appeared in person. Counsel for the Respondent: Mr T Liu Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 889 of 2023 BETWEEN: BXI23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
30 OCTOBER 2024
THE COURT NOTES THAT:
1.The applicant made requests for Ministerial intervention under s 48B of the Migration Act 1958 (Cth) on 7 March 2022, 5 September 2022, and 13 September 2022.
2.Decisions were made on 24 March 2022, 7 September 2022, and 15 September 2022, respectively, not to refer the applicant’s requests to the Minister.
3.The respondent accepts that the decisions were made in excess of the executive power of the Commonwealth.
4.The respondent accepts that, in the circumstances, the applicant’s application for Ministerial intervention is yet to be finalised.
THE COURT ORDERS THAT:
1.The name of the respondent be changed to Minister for Immigration and Multicultural Affairs.
2.Order 1 made on 15 December 2023 be vacated.
3.Having regard to the matters noted above, and having found that the relief sought by the applicant is either not available or should not be granted, the proceeding be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
This proceeding was commenced on 15 August 2023 by the filing of an originating application for relief under s 39B of the Judiciary Act 1903 (Cth).
The substance of the claim, as then filed, was that the applicant had made a request for Ministerial intervention under s 48B of the Migration Act 1958 (Cth) (the Migration Act) in respect of his application for a protection visa and that a “delegate” had refused the request without reference to the Minister (now, the Minister for Immigration and Multicultural Affairs). The applicant relied on the decision in
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- AGLC
- BX123 v Minister for Immigration and Multicultural Affairs [2024] FCA 1251
- Case
- [2024] FCA 1251
- Decision Date
CaseChat Overview and Summary
The Court examined the nature of the relief sought by the applicant and the legal principles applicable to Ministerial intervention powers. The Court noted that a writ of mandamus could not issue in respect of any ministerial intervention power, as established in Davis v Minister for Immigration, Citizenship and Multicultural Affairs. The Court also considered the utility of making orders of certiorari and prohibition, given that the respondent had accepted the excess of power and that the applicant's requests were yet to be finalised. The Court concluded that the proceeding no longer served any purpose and that the appropriate resolution was to dismiss the proceeding. The Court found that the relief sought by the applicant was either not available or should not be granted.
The Court ordered that the name of the respondent be changed to Minister for Immigration and Multicultural Affairs, vacated a previous order, and dismissed the proceeding. The Court found that the relief sought by the applicant was either not available or should not be granted, and that the proceeding should be discontinued with each party bearing its own costs. The Court also noted that if the applicant did not discontinue the application on the proposed terms, the respondent would rely on the Minister's letter in further submissions to the Court in relation to the proceeding, including the question of costs.
Orders
Orders of the court
1. The name of the respondent be changed to Minister for Immigration and Multicultural Affairs.
2. Order 1 made on 15 December 2023 be vacated.
3. Having regard to the matters noted above, and having found that the relief sought by the applicant is either not available or should not be granted, the proceeding be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The substance of the claim, as then filed, was that the applicant had made a request for Ministerial intervention under s 48B of the Migration Act 1958 (Cth) (the Migration Act) in respect of his application for a protection visa and that a “delegate” had refused the request without reference to the Minister (now, the Minister for Immigration and Multicultural Affairs). The applicant relied on the decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 408 ALR 381 (Davis). The applicant also claimed that the Minister’s delegate did, or failed to do, other things in relation to the applicant’s request that also entitled the applicant to relief, although the form of that relief was not specified beyond a claim for interlocutory relief preventing the Minister from removing the applicant from Australia (I interpolate, pending the Minister’s consideration of the request for intervention). On 13 September 2023, at a case management hearing, the Minister gave an undertaking to the Court not to remove the applicant from Australia involuntarily before the hearing and determination of the application filed on 15 August 2023, without giving the applicant and the Court seven days prior notice of his intention to do so. On 26 October 2023, the applicant filed an amended originating application. The amended originating application also does not contain any claim for relief. It does, however, contain a number of claims about the Minister’s “delegate” which, when read with submissions also filed by the applicant on 26 October 2023, and with an affidavit made by the applicant on 16 August 2023, appear to be about a decision made on 15 September 2022 by a Departmental Officer to “finalise” the applicant’s request for Ministerial intervention “without referral”. Therefore, the applicant’s claims in the amended originating application about what the “delegate” did, or failed to do, are not intelligible beyond the language in which the applicant has expressed those claims. Assessed at this level, the applicant’s claims appear to be directed to the way in which he believes his request for intervention was handled by the Departmental Officer. Having outlined these matters, it is appropriate that I record, without further delay, that the Minister accepts that the applicant has, in fact, made three requests for Ministerial intervention under s 48B of the Migration Act. These requests were made on 7 March 2022, 5 September 2022, and 13 September 2022. Decisions not to refer the requests to the Minister were made on 24 March 2022, 7 September 2022, and 15 September 2022, respectively. The Minister accepts that these decisions were made in excess of the executive power of the Commonwealth and that the applicant’s request for Ministerial intervention is yet to be finalised. The Minister acknowledged this fact in a letter dated 7 November 2023 from the Australian Government Solicitor to the applicant. This letter was written in response to the applicant’s submissions to which I have referred. After recording the acknowledgement by the Minister, the letter continued:5.As a consequence of this concession, the respondent accepts that your 3 requests are yet to be finalised, and we note that there has been no decision made by the Minister, personally, to either consider each request or to make a decision on intervention.6.We note that your written submissions dated 26 October 2023 seek a writ of mandamus, directing the respondent to reconsider your requests. This is not an order capable of being made. This is because a writ of mandamus cannot issue in respect of any ministerial intervention power: see Davis v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 10; (2023) 97 ALJR 214 (Davis) [12], [104]-[105], [146] and [298].7.Your written submissions also seek the constitutional writs of certiorari and prohibition. We consider that there would be no utility in the Court making such orders where the respondent accepts that the non-referral decisions were made in excess of the executive power of the Commonwealth and that your requests are yet to be finalised.8.In these circumstances, the respondent’s position is that the current proceeding no longer serves any purpose. For that reason, the respondent considers the appropriate resolution of the proceeding is that it should be discontinued.9.The respondent would consent to that discontinuance with each party bearing its own costs, for the purpose of r 26.12(2)(b) of the Federal Court Rules 2011 (Cth). We attach a proposed minute of consent orders for your consideration. If you agree with the proposed orders, please sign and date the orders above ‘Applicant’ and send them back to me by email by 5pm on 10 November 2023. We will then send the orders to the Court, copying you into our email.10.If, despite the respondent’s position set out in this letter, you do not discontinue the application on the terms proposed, the respondent will rely on this letter in further submissions to the Court in relation to these proceedings, including as to their utility and on the question of costs.