CGP21 v Minister for Home Affairs
[2021] FedCFamC2G 11
•1 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CGP21 v Minister for Home Affairs [2021] FedCFamC2G 11
File number(s): SYG 1532 of 2021 Judgment of: JUDGE DRIVER Date of judgment: 1 September 2021 Catchwords: MIGRATION – Application for mandamus to compel making of a decision on a visa application – application to the Court premature and circumstances of the applicants rapidly changing – mandamus refused – no award of costs. Legislation: Migration Act 1958 (Cth) ss 63, 65, 474
Migration Regulations 1994 (Cth)
Cases cited: AFX17 v Minister for Home Affairs [2020] FCA 807
AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424
ASP15 v Commonwealth (2016) 248 FCR 372
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
CMA19 v Minister for Home Affairs [2020] FCA 736
Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285
FGS20 v Minister for Home Affairs [2021] FCCA 753
FGS20 v Minister for Home Affairs [2021] FCA 874
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470
P & C Canterella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
R v Building Controller; Ex Parte Marinov (1981) 36 ACTR 13
Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577
SZMNF v Minister for Immigration and Citizenship [2008] FMCA 983
Thornton v Repatriation Commission (1981) 35 ALR 485
Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 1 September 2021 Place: Sydney Solicitor for the Applicants: Mr D Taylor with Ms N Harendran of Sydney West Legal and Migration Counsel for the First, Second and Fourth Respondents: Ms C Roberts Solicitor for the Third Respondents: Mr J Hutton of Australian Government Solicitor Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 1532 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CGP21
First Applicant
CGR21
Second Applicant
CGS21 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
1 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application lodged on 6 August 2021 and filed on 12 August 2021 is dismissed.
2.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
Revised from transcriptJUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The application I have before me was lodged on 6 August 2021 and filed on 12 August 2021. It seeks an order in the nature of mandamus to compel an urgent decision on the visa applications by the first four applicants, who are a mother and her three children in Afghanistan. The applicant father, who has joined in the application as the fifth applicant, is currently in Australia under the Medevac program and was the subject of earlier proceedings.[1] The background to this matter is conveniently set out in the Minister’s outline of submissions filed on 1 September 2021 which I adopt.
[1] FGS20 v Minister for Home Affairs [2021] FCCA 753
The circumstances of the fifth applicant, FGS20 (the applicant father) were described in detail in FGS20. The Court concluded in that case that an obligation to remove the applicant father to Papua New Guinea (PNG) had arisen (both because the applicant father had requested removal, and because the applicant father no longer needed to be in Australia for the specific temporary purpose for which he was brought to Australia, being to receive medical treatment).
The evidence before this Court in the applicant father’s previous case included records indicating that he claims to have provided assistance to the United States military, but also withdrew from the US resettlement process in 2017.[2]
[2] annexure GW-1 to affidavit of Gregory Weigh, status resolution officer, made on 9 April 2021 in proceeding SYG2917/2020
The applicant father has since requested a return to Afghanistan.[3] As the return of the applicant father to either PNG or Afghanistan is not the subject of relief sought in the present proceeding, the respondents have not addressed that topic in evidence and do not address it any further in their submissions.
[3] eg email from applicant father’s solicitor to the Court on 22 August 2021
The applicant mother is the applicant father’s wife and the mother of his children. The applicant children are three of the applicant father and applicant mother’s four children (born in 2003, 2005 and 2006). A fourth child of the applicant father and applicant mother (born in 2004) is living with a relative and is not a party to these proceedings.
The applicant mother and applicant children placed an application for an offshore humanitarian visa into the post on 3 August 2021, and seek an order of mandamus in relation to that application. It is not clear what legal interest (as distinct from his clear personal interest) the applicant father has in the present application.
The applicants’ evidence (which the respondents do not challenge) is that the application was sent from Australia Post, Riverstone Post Office NSW on 3 August 2021. It was received by the Australian High Commission in Wellington, New Zealand on 12 August 2021.[4] A number of steps have been taken to progress its consideration.[5]
[4] see affidavit of Craig Shinners made on 31 August 2021
[5] these are detailed in the court book filed on 30 August 2021 and in two information notes provided to the Court by the respondents at the interlocutory stage
On 12 August 2021 the application was sent by email to the Australian Embassy Amman, Jordan where it was then registered into departmental systems with an application commencement date of 12 August 2021.[6] On 16 August 2021 an Acknowledgement of Receipt of Valid Application for Refugee and Humanitarian (Class XB) visa letter was sent to the applicants’ appointed migration agent, Mr Daniel Taylor. This letter was transmitted by email to Mr Taylor’s email address.
[6] Mr Shinners’ affidavit
The visa applied for by the applicant mother and the applicant children is a Refugee and Humanitarian (Class XB) visa. There are five subclasses against which applications for this kind of visa are assessed:
(a)Refugee (subclass 200 – the applicant mother and applicant children are not eligible for this subclass, because they currently reside in their home country);
(b)In-country Special Humanitarian (subclass 201);
(c)Global Special Humanitarian (subclass 202 – the applicant mother and applicant children are not eligible for this subclass, because they currently reside in their home country);
(d)Emergency Rescue (subclass 203); and
(e)Woman at Risk (subclass 204 - the applicant mother and applicant children are not eligible for this subclass, because they currently reside in their home country).
Mr Shinners’ evidence explains that normal processing of a visa of the kind applied for by the applicant mother and applicant children involves an interview, examination of identity documents (eg, passports, marriage/birth certificates), the collection of “biometrics”, medical examinations, and assessments of the overall case as well as character and security considerations. All of these considerations are complicated for visa applicants presently in Afghanistan due to the current security situation in that country.
Mr Shinners’ evidence also indicates that all facilities capable of conducting medical examinations for the purposes of Australian visa applications in Afghanistan are currently closed.
At present, priority consideration is being given to applicants who may be eligible for a visa under the “Australian Afghan Locally Engaged Employee” visa policy (LEE Policy).
The LEE Policy extends to persons who:
(a)have been employed in Afghanistan with the Australian Defence Forces, the Department of Foreign Affairs and Trade, AusAID or the Australian Federal Police; and
(b)have been certified by their employing agency as being at significant risk of harm due to their employment; and
(c)meet the criteria for a Refugee and Humanitarian visa (including health, character and security requirements).
The applicant father was not employed in Afghanistan by any agency covered by the LEE Policy (and neither were the applicant mother or applicant children).
Representatives for the parties have attended court in relation to listings or mentions for this matter on:
(a)Friday 13 August 2021;
(b)Sunday 15 August 2021;
(c)Monday 16 August 2021;
(d)Tuesday 17 August 2021;
(e)Wednesday 18 August 2021;
(f)Thursday 19 August 2021; and
(g)Wednesday 25 August 2021.
Representatives of the parties have appeared in the Federal Court in relation to a separate application commenced by the applicants (alleging that the respondents owed them a duty of care) on three occasions. The Federal Court published reasons in an interim judgment on 29 July 2021.[7] The applicants were to file any amended application in the Federal Court proceedings by 30 August 2021.
[7] FGS20 v Minister for Home Affairs [2021] FCA 874
This matter has been before the Court many times and at short notice. I have pursued the course of frequent listings in order to attempt to deal with the desperate situation of the first to fourth applicants, who were located, for many days, outside Hamid Karzai International Airport in Kabul, hoping for evacuation to Australia. I received several notes from the respondents seeking to detail what processing was occurring in relation to their visa applications but it became painfully apparent that it was most unlikely that a decision would be made before the completion of the American evacuation mission on 31 August 2021. Indeed, that was confirmed on the last occasion this matter was before me on 25 August 2021.
31 August 2021 was the last occasion, it appears, where anyone on the applicants’ side was able to have any contact with the applicant mother. Her present location and circumstances and, indeed, the present location and circumstances of her children is not known.
I have before me a wealth of material filed on behalf of the applicants detailing their desperate and distressing circumstances. On the respondents’ side, I have a court book filed on 30 August 2021 and the affidavit by Mr Shinners, made on 31 August 2021. There was a question of the availability of Mr Shinners for cross-examination which was unfortunately not made clear to the respondents’ legal representatives and it has not been practicable to arrange any cross‑examination.[8]
[8] there was some discussion at the trial whether Mr Shinners’ affidavit would be read
In any event, the affidavit was ultimately tendered on behalf of the applicants in order to detail what has and has not been done in terms of processing the visa applications. The applicants’ fundamental position is that they seek an urgent decision on an offshore humanitarian visa and that various categories of visa would be available. They seek orders from the Court to compel the making of a decision now. The same argument was advanced at the interlocutory stages of this proceeding while the applicants were located outside Hamid Karzai International Airport with the intention of seeking to secure the evacuation of the applicants to Australia.
The principles in relation to the consideration of an application for mandamus in these circumstances are detailed in the respondents’ submissions. Those principles are not in any serious dispute and I adopt them.
Jurisdiction
The jurisdiction that the applicants rely on in support of their present claim stems from, per written submissions dated 25 August 2021, s 474(3)(j) of the Migration Act 1958 (Cth) (Migration Act).
Under s 63(1) of the Migration Act, the Minister “may grant or refuse to grant a visa at any time after the application has been made”, and criteria relevant to the making of a decision are set out in s 65.
The parties have not identified an example of mandamus issuing in connection with a visa application similar to that of the applicant mother and applicant children.
In SZMNF v Minister for Immigration and Citizenship,[9] Smith FM was not satisfied that criteria relevant to an application for an offshore humanitarian visa had been considered, and ordered that a writ of certiorari issue in relation to the decision made and a writ of mandamus issue to require determination of the visas according to law. In CMA19 v Minister for Home Affairs,[10] Murphy J concluded that a period of 451 days between solicitors for the applicant in that case indicating that he had no further submissions to make and a letter being sent indicating that new information had been identified was unreasonable.[11]
[9] [2008] FMCA 983
[10] [2020] FCA 736
[11] see particularly [205]-[211]
For a writ of mandamus to issue, the applicants must demonstrate a duty that the respondents are failing to perform. The duty that the applicants appear to rely on is a duty to determine their visa. The respondents contend that there has been no delay sufficient to amount to a constructive failure to complete that task.
When delay can amount to a constructive failure to perform a duty
The circumstances in which delay has been found to amount to a failure to perform the relevant duty are limited. In Commonwealth v SCI Operations Pty Ltd,[12] Kirby J mentioned the possibility of delay warranting a writ of mandamus at 327. In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs,[13] the majority of the High Court accepted that a delay in decision making by the Refugee Review Tribunal had amounted to jurisdictional error. In NAIS, a delay of four and a half years between hearing oral evidence and making a decision was accepted to have affected the capacity to consider that evidence (mandamus was not sought until after the decision was delivered, though, so the question in NAIS was different to the present case).
[12] (1998) 192 CLR 285
[13] (2005) 228 CLR 470
In Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd,[14] Murphy J concluded at 578 that there was no basis on which applications for orders nisi for mandamus (compelling the Federal Commissioner of Taxation to make a decision) should be granted:
Where time limits have not been specified in other sections of the Act a reasonable time has been implied (see Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252). Without a time limit any duty would be illusory. I interpret s 186 of the Act as requiring the Commissioner to allow or disallow an objection in whole or in part within a reasonable time.”
The next question is whether the Commissioner has failed to do so. The Commissioner contended that, in all the circumstances, a reasonable time had not elapsed. In Thornton v Repatriation Commission (1981) 35 ALR 485, in determining whether there was unreasonable delay by the Repatriation Commission in making a statutory decision, Mr Justice Fisher stated: “The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious … a delay for a considered reason and not in consequence of neglect, oversight or perversity” (at 492).
[14] (1983) 50 ALR 577
BMF16 v Minister for Immigration and Border Protection[15] at [27], citing cases including Thornton v Repatriation Commission,[16] is also relevant. Furthermore, the Full Federal Court in ASP15 v Commonwealth[17] states at [23]:
The passage from Thornton is an authoritative statement of the appropriate test to be applied in deciding whether or not a delay by an administrative decision-maker is reasonable for the purposes of a statute that does not provide a specific indication of when a decision is required to be made.
[15] [2016] FCA 1530
[16] (1981) 35 ALR 485
[17] (2016) 248 FCR 372
In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[18] O’Callaghan and Steward JJ stated at 47:
Like the primary judge, in determining whether there has been an unreasonable delay, we have applied the test, about which there was no issue between the parties, in Thornton…
[18] (2020) 279 FCR 1
The matters relevant to an assessment of whether a delay was reasonable include “the practical limitations which attend the particular exercise of the power by reason of the nature of the decision required and the preparation, investigation and considerations called for”.[19]
[19] BMF16 at [25]
In KDSP, O’Callaghan and Steward JJ accepted at 52 that:
criticisms directed at showing that the Minister’s staff were too slow, or took steps that another person might consider were unnecessary… are not to the point, unless they show the presence of perversity, capriciousness, intentional oversight or neglect.
Time from which the assessment takes place
Though little turns on the point in the present case (because the hearing in this matter is shortly after its commencement), the relevant date for assessing whether there has been a constructive failure on the part of the respondents to perform a duty is the day on which these proceedings were commenced, ie, 6 August 2021.
In P & C Canterella Pty Ltd v Egg Marketing Board (NSW),[20] at which Mahoney J refers to the “commencement of this proceeding” as the relevant time for assessing whether mandamus should issue.
[20] [1973] 2 NSWLR 366 at 381
In R v Building Controller; Ex Parte Marinov,[21] an application failed for reasons including that proceedings were commenced before the expiration of a statutory period.
[21] (1981) 36 ACTR 13
The authors of Aronson, Groves and Weeks Judicial Review of Administrative Action and Government Liability (6th Ed) (Thomson Reuters) write that, “[t]he failure must precede the commencement of the claim for mandamus”.[22]
[22] at 876 at [13.20]
In Marinov (concerned with an application for a builder’s licence), Connor ACJ wrote (at 17-18):
As appears above, the prosecutor's solicitors took out these proceedings and served them upon the Building Controller before the expiry of the period available to the prosecutor to establish his eligibility. I think, therefore, as submitted by Miss Vardanega on behalf of the Building Controller, that there could not at that stage have been any refusal to grant a licence to the prosecutor. There is consequently no decision upon which certiorari can operate and no refusal to make a decision to ground mandamus. The prosecutor's solicitors struck too soon. I think this consideration is enough, of itself, to defeat the prosecutor's application.
I accept that the same is true in the present case. The applicants’ solicitors “struck too soon” by lodging the application to the Court in the present case on 6 August 2021, before the visa application had even been received at its postal destination in New Zealand. This alone is a basis for dismissing the application.
Onus
In AQM18 v Minister for Immigration and Border Protection[23] Besanko and Thawley JJ have observed:
… As to onus, it was for the appellant to show that there was unreasonable delay affecting the jurisdiction to make the decision. If the appellant established a delay which called for explanation, then the persuasive onus might shift to the Minister to establish what that explanation was. In considering whether the appellant discharged her onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969…
[23] (2019) 268 FCR 424 at 434
Also relevant are the statements in KSDP at 47 and AFX17 v Minister for Home Affairs[24] at [46].
[24] [2020] FCA 807
The applicants have not discharged their onus so as to call for any explanation.
Absence of a delay in the present case
The respondents’ evidence establishes that:
(a)steps have been taken to progress the applicant mother and applicant children’s applications, which are currently with a decision-maker in Amman, Jordan; and
(b)usual steps necessary to complete the consideration of the sorts of application made by the applicant mother and applicant children are not currently possible in Kabul; and
(c)applications from other persons, notably those eligible for the LEE Policy, are being prioritised above those of the applicant mother and applicant children.
The two visa categories for which the applicant mother and applicant children are eligible, subclasses 201 and 203, both include “the extent of the applicant’s connection with Australia” as a relevant assessment criterion.[25] There is also a need to have regard to “the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia”;[26] the “regional and global priorities of the Commonwealth in relation to the permanent settlement of persons in Australia on humanitarian grounds”;[27] and the “interests of Australia”.[28]
[25] Migration Regulations 1994 (Cth) (Regulations), Schedule 2, clauses 201.222(b), 203.222
[26] clauses 201.222(d), 203.222(b)(iv)
[27] clauses 201.223, 203.223
[28] clauses 201.224(b), 203.224(b)(ii)
As to the compelling reasons for travel to Australia, it may be relevant that the applicant mother and applicant children rely on their relationship with the applicant father in support of their need to immigrate, specifically, to Australia: a country in which the applicant father has no ongoing right to reside. The prioritisation of applications from persons eligible for the LEE Policy is consistent with the Regulations.
In Plaintiff M64/2015 v Minister for Immigration and Border Protection,[29] the High Court concluded that there had been no jurisdictional error in a decision not to grant visas under Australia’s “Special Humanitarian Program” to Afghanistan-based[30] family members of a person who had arrived in Australia as an unaccompanied minor at an excised offshore place. The High Court found that a priority scheme that afforded lowest priority to applications proposed by persons who were irregular maritime arrivals was valid.[31]
[29] (2015) 258 CLR 173
[30] the family had fled from Afghanistan to Iran: see [1]
[31] see particularly 191, 192, 197-198
In written submissions the applicants refer to a criterion for the grant of an Emergency Rescue visa: “The Minister is satisfied that… there are urgent and compelling reasons for the applicant to travel to Australia…”[32]. The relevant satisfaction in this test is, of course, that of the Minister.
[32] Clause 203.224(a)
In Thorpe v Commonwealth (No 3)[33] at 779, Kirby J noted that foreign relations (in that case, regarding a proposed engagement with the United Nations):
… turn on a multitude of considerations unknown to this Court. They are matters upon which the Australian Government speaks to the international community with a single voice. That voice is the voice of the executive government chosen from the Parliament elected by the people of Australia. It is not the voice of this Court.
[33] (1997) 71 ALJR 767
Resolution
In the present case, there is no justiciable error in the respondents’ prioritisation of applications for assistance made by persons currently in Afghanistan (which the applicants accepted in written submissions dated 25 August 2021, at [6]: “[t]he applicants do not seek to displace the Minister’s order of priority in the decision whether to grant the visas”).
There is a clear explanation for why it has not been possible to consider the applicant mother and applicant children’s application in the short period since it was lodged: there is a dynamic situation in the country they currently reside in, and other applications are being prioritised above theirs.
There is no basis for concluding that the respondents have constructively failed to perform any duty. Having been no failure, there is no basis on which a writ of mandamus could issue.
The authorities raise an insuperable difficulty for the applicants in that, at the time the application for mandamus was lodged, on 6 August 2021, the visa applications had not even been received by the Australian authorities.
I have considered the matter more generally, given the extraordinary circumstances in which the visa and judicial review applications were made and the circumstances as they developed rapidly from day to day on the ground in Kabul. There have been several statements made on behalf of the respondents detailing what processing of the visa application has been undertaken. It is apparent that the applications were not in a position where they were likely to be granted and, indeed, it was confirmed, as I have already noted, that no decision could or would be made before 31 August 2021 when the American evacuation effort ceased.
This is, obviously, extremely unfortunate for the visa applicants located in Afghanistan. Their future is, at best, uncertain. I am able to say, however, that in the course of the various listings before the Court, it has become clear that there has not been any unreasonable failure on the part of the respondents. A processing procedure has been followed and there has been no obstacle placed in the way of the applicants except the obstacles of the practical situation on the ground and their circumstances. The Australia authorities have, in order to deal with a desperate humanitarian situation, adopted a priority policy, giving preference to those who were employed or worked closely with Australian personnel in Afghanistan.
These visa applicants do not fall into that category. That is not to say that the visa applications should not be granted. They may well be eligible for a visa and the Court would expect the respondents to act promptly in order to determine their eligibility. I considered making a mandamus order on 25 August 2021, given the obvious risk, at that time, of a humanitarian catastrophe at the airport in Kabul. I did not do so because, on the information received from the Australian authorities, it was plain that no favourable decision could be made by the deadline of 31 August 2021 and an order in the nature of mandamus would simply have brought forward a negative decision.
It seems to me that the same situation still applies. Processing, albeit not as quick as the applicants want, is being undertaken. If the Court were to compel a decision now on the visa applications, the outcome would probably be a negative one. That might provide something else for the Court to review but that would be of little comfort to these applicants. I have come to the view first that, at the time their judicial review application was lodged, there was no basis for any order of mandamus, given that the visa applications had not then been received or considered. Secondly, in the time that has passed since then, there has not been any unreasonable failure to consider the visa applications and processing work has been undertaken in difficult circumstances.
CONCLUSION
It follows, in my view, that the application should be dismissed. I will order that the application lodged on 6 August 2021 and filed on 12 August 2021 be dismissed.
That, however, is not the end of the matter. As I have already noted, the fifth applicant, the applicant father, was the subject of earlier proceedings in this Court and I have made orders for a mediation to occur in relation to his circumstances. His circumstances are obviously affected by those of his family in Afghanistan. There is, in my view, no reason why the applicant father could not pursue enquiries about the visa applications by his family in the course of that mediation.
In consequence of the dismissal of the application, the Minister seeks an order for costs against the applicant mother and applicant father, consistent with the normal principle that costs follow the event. The present case, however, is in my view, extraordinary and there is no entitlement to a costs order. The applicant mother is, we assume, somewhere in Afghanistan at a location unknown and her circumstances are unknown. The applicant father is in Australia and, no doubt, joined in the application because of his concern for his family but did not have any direct legal interest in it.
The application was made and pursued, in my view, in support of an understandable desire to attempt to shepherd the visa applicants in Afghanistan through a very challenging situation to safety in Australia. That has been unsuccessful, but I see no reason to further burden these applicants with a costs order. I will order that there be no order as to costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 6 September 2021
SCHEDULE OF PARTIES
SYG 1532 of 2021 Applicants
Fourth Applicant:
CGT21
Fifth Applicant:
FGS20
Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
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