Ceu22 v Minister for Home Affairs

Case [2024] FCAFC 11

FEDERAL COURT OF AUSTRALIA

CEU22 v Minister for Home Affairs [2024] FCAFC 11

Appeal from: CEU22 v Minister for Home Affairs(No 2) [2023] FCA 867
File number(s): VID 691 of 2023
Judgment of: WIGNEY, THAWLEY AND WHEELAHAN JJ
Date of judgment: 16 February 2024
Catchwords:

MIGRATION – Minister considered non-refoulement in assessing national interest under s 501(3) – whether Minister was required correctly to interpret Australia’s unenacted non-refoulement obligations in making the decision – if unenacted non-refoulement obligations misunderstood, there was no jurisdictional error

MIGRATION – whether Minister failed meaningfully to consider materials or merits of the case – whether apprehension of bias on the part of the Minister – Minister considered whole brief – no jurisdictional error

CONSTITUTIONAL LAW – ss 64 and 65 of the Constitution – responsible government – whether more than one person may be appointed as Minister to administer a Department – appointment of more than one person to administer Department of State does not offend Constitution

PRACTICE AND PROCEDURE – notice of contention filed late – extension of time granted

Legislation:

Constitution ss 64, 65

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2B)(c), 501(3), 501(5)

Federal Court Rules 2011 (Cth) rr 1.34, 1.39, 2.25, 36.05, 36.23, 36.24
Cases cited:

CEU22 v Minister for Home Affairs(No 2) [2023] FCA 867

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; 288 FCR 23

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 97 ALJR 214

Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123

HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] FCAFC 133; (2022) 294 FCR 13

Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12

McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181

Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2022] FCAFC 199; 292 FCR 595

MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215; 282 FCR 285

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506

Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497

Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391

Re Romato; Ex Parte Mitchell James Holdings Pty Ltd [2001] WASCA 286

Zoeller v Attorney-General (Cth) (1987) 76 ALR 267
Division:  General Division
Registry: Victoria
National Practice Area:  Administrative and Constitutional Law and Human Rights
Date of hearing:  12 February 2024
Number of paragraphs:  110
Counsel for the Appellant: Mr S Z Stagliorio
Solicitor for the Appellant: Elizabeth Wisser & Associates

Continue reading Ceu22 v Minister for Home Affairs

Sign in free to access the full text

Details
AGLC
Ceu22 v Minister for Home Affairs [2024] FCAFC 11
Case
[2024] FCAFC 11
Decision Date

CaseChat Overview and Summary

In the matter of Ceu22 v Minister for Home Affairs, the appellant, Ceu22, challenged the decision of the Minister for Home Affairs to cancel their visa under the Migration Act 1958 (Cth). The appellant argued that the Minister's decision was marred by jurisdictional error, particularly in her interpretation of Australia's non-refoulement obligations and her failure to properly consider the merits of the case. Additionally, the appellant raised concerns about the validity of the Minister's appointment under the Australian Constitution and sought to adduce new evidence concerning the former Secretary of the Department's alleged misconduct.

The primary legal issues before the court were whether the Minister had erred in her interpretation of Australia's non-refoulement obligations, whether she failed to meaningfully consider the materials and merits of the case, and if there was any apprehension of bias or a misunderstanding of the constitutional requirements regarding the appointment of ministers. The court also needed to determine if the appellant's late filing of a notice of contention and an application to adduce further evidence should be excused.

The court held that the Minister's decision did not involve any jurisdictional error. It was established that while the Minister was required to correctly understand Australia's non-refoulement obligations, a misunderstanding alone did not necessarily constitute a jurisdictional error. The court also found that the Minister had considered the entire brief and the merits of the case, and there was no evidence of bias or an improper appointment of ministers under the Constitution. The court rejected the appellant's application to adduce further evidence, finding it largely inadmissible and irrelevant to the case's outcome.

Consequently, the appeal was dismissed, and costs were awarded to the respondent. The court extended the time for the respondent to comply with a procedural rule and ordered the appellant to pay the respondent's costs. The decision underscored the rigorous standards required for establishing jurisdictional error in administrative law and the importance of adhering to constitutional and statutory mandates in the exercise of governmental powers.

Orders

Orders of the court

1. The time for compliance by the respondent with r 36.24 of the Federal Court Rules 2011 (Cth) is extended to 20 October 2023.

2. The appeal be dismissed.

3. The appellant pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ground 3(d) should be dismissed.Application to adduce further evidence As mentioned at [71], the appellant sought to adduce new evidence on appeal. The appellant submitted that the former Secretary of the Department, Mr Michael Pezzullo AO, was removed from office due to misconduct. This was the topic of the proposed new evidence. Counsel for the appellant submitted that “it is safe to infer … that [Mr Pezzullo’s] misconduct cascaded down to those directly or indirectly reporting to him” and that this “cascading effect corroborates the inference that the Department” did not place the entire Brief before the Minister, but only the pages requiring signature. He submits that the “cascading effect” also corroborates what counsel describes as a “strong” inference that “the critical evidence which was destroyed would have confirmed that [the Minister] did not receive all relevant pages”: AS[71] and [72]. Finally, the appellant submitted that the fact that Mr Pezzullo AO was removed from office as a result of findings of misconduct was a matter of public knowledge and judicial notice of that fact should be taken irrespective of whether the new evidence is admitted: AS[73]. The respondent felt the need to respond to these submissions, soberly and correctly submitting at RS[47]:First, the material relied upon by the appellant is largely inadmissible and does not demonstrate that Mr Pezullo [sic] AO engaged in misconduct, or (if he did) what the nature of that misconduct was. Second, this Court is not in a position to make any determination as to the occurrence of any misconduct of any particular kind. Third, even if such a process was possible, it is nonsensical to suggest that such evidence could affect the outcome of the present case in the way suggested in light of the other evidence before the primary judge. Further, … the circumstances of Mr Pezzullo AO’s removal from office is not a matter of public knowledge. There is no basis for the Court to take judicial notice of any matter. No further time should be wasted on an application which should never have been made.GROUND 4 The part of Ground 4 which was pressed was that the primary judge erred by failing to find that the person who made the decision “was not the (or a) Minister” (appellant’s emphasis) because Ch II of the Constitution impliedly requires that only one person be appointed as a Minister to administer a given Department or to the relevant Ministerial office. On the basis of this implied limitation, the appellant argued that the Hon Karen Andrews’ appointment as Minister for Home Affairs was terminated by the later appointment of the Hon Ben Morton MP on 30 March 2021 and the Hon Scott Morrison MP on 6 May 2021 “to administer” the Department of Home Affairs. The appellant contended that Ms Andrews, whose appointment as Minister had been implicitly terminated by the later appointments, could not exercise the power in s 501(3)(b) with the result that her decision to cancel the appellant’s visa was invalid.

Decision

Reasons for decision

Ground 4 should be dismissed.CONCLUSION The appeal should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

During oral submissions, the appellant submitted that any factual or legal error made by a decision-maker was a jurisdictional error if it was material to the decision in the sense materiality was described in Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737. According to the appellant, it is the materiality of an error (rather than the nature of the error) which makes it jurisdictional.Consideration Although it could have been more clearly expressed, the appellant’s case at trial included the contention that the Minister’s decision involved jurisdictional error because, having chosen to take into account Australia’s international non-refoulement obligations in deciding what was in Australia’s national interest, she misunderstood those obligations thereby erring in a way going to jurisdiction. The appellant pleaded (and argued) that the Minister’s “choice [to consider non-refoulement obligations] required the Minister to correctly understand the content of Australia’s international non‑refoulement obligations”: particular 1(b) of Ground 1 in the amended originating application. This case did not depend on the Minister being obliged to consider Australia’s international non-refoulement obligations. The case was not squarely addressed, presumably because the primary judge understood the appellant to accept that Australia’s international non-refoulement obligations had to be a mandatory consideration either because of the Minister’s “choice” or because it was a mandatory consideration properly implied from the subject matter, scope or purpose of s 501(3) of the Act: J[37]. To say that a decision is affected by jurisdictional error is to say that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [29]. The statutory limits of decision-making authority conferred by statute are determined as an exercise in statutory interpretation; non-compliance with express or implied statutory conditions of a conferral of decision-making authority can (but need not) result in a decision that exceeds the limits of the decision-making authority conferred: MZAPC at [30]. Ordinarily, it is an implied condition of a statutory conferral of decision-making authority that a decision-maker must proceed by reference to correct legal principles, correctly applied: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]. The High Court has stated that this implication arises under s 501(3). In Graham at [57], the High Court observed that the satisfaction of the Minister necessary to fulfil the conditions in s 501(3) must be formed on a “correct understanding of the law”:The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law. The concept of the national interest, the Minister’s satisfaction as to which is the subject of the second condition of s 501(3) [the national interest test], although broad and evaluative, is not unbounded. And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself”.