DFE16 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DFE16 v Minister for Home Affairs [2021] FCA 1151

File number: NSD 517 of 2021
Judgment of: NICHOLAS J
Date of judgment: 24 September 2021
Catchwords:

MIGRATION – application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) – whether Minister’s decision to grant or refuse a protection visa has been subject of unreasonable delay – where applicant’s partner visa cancelled and subsequent protection visa application refused – where Minister invited applicant to make a further application for a protection visa under s 48B of the Migration Act 1958 (Cth) – where applicant was subject to an Adverse Security Assessment at time he lodged application in response to Minister’s invitation – where ASIO subsequently performed a new security assessment and issued a Qualified Security Assessment and accompanying Statement of Grounds with respect to the applicant – where efforts to access Statement of Grounds have been impacted by travel restrictions imposed as a result of COVID-19 outbreak – whether delay of approximately 16 months unreasonable

Held: delay not unreasonable – application for mandamus and related declaratory relief dismissed
Legislation:

Australian Security Intelligence Organisation Act 1979 (Cth) s 4

Judiciary Act1903 s 39B

Migration Act 1958 (Cth) ss 5, 36, 47, 65, 501

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 of Australia (2016) 248 FCR 372

BFM16 v Minister for Immigration and Border Protection [2016] FCA 1530

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1

MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590

P&C Canterella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366

Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179

R v Building Controller; Ex parte Marinov (1981) 36 ACTR 13

Thornton v Repatriation Commission (1981) 52 FLR 285

Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) 

Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 94
Date of hearing: 9 September 2021
Counsel for the Applicant: Ms M Yu
Solicitor for the Applicant: Human Rights for All Pty Ltd
Counsel for the Respondent: Mr B Lim
Solicitor for the Respondent: Australian Government Solicitors

ORDERS

NSD 517 of 2021
BETWEEN:

DFE16

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

NICHOLAS J

DATE OF ORDER:

24 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The amended originating application be dismissed.

2.The applicant pay the respondent’s costs of this proceeding as taxed or agreed.

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


REASONS FOR JUDGMENT

NICHOLAS J:

INTRODUCTION

  1. This proceeding was commenced by the applicant on 25 May 2021 seeking relief under s 39B of the Judiciary Act1903 (Cth). By orders made on 17…

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Details
Case
[2021] FCA 1151
Decision Date

CaseChat Overview and Summary

The applicant sought a declaration from the Court that the Minister had failed to make a decision within a reasonable time in relation to the applicant's application for a protection visa dated 13 May 2020. The applicant also sought a writ of mandamus requiring the Minister to proceed forthwith to consider and determine his application. The applicant claimed that there had been an unreasonable delay in the Minister making a decision in relation to the application. The Court was required to determine whether the delay in making a decision in relation to the application was unreasonable.
The Court found that the delay in making a decision was not unreasonable. The Court noted that the applicant's application for a protection visa was made in response to an invitation by the Minister under s 48B of the Act. The Court found that the Minister had taken all reasonable steps to make a decision in relation to the application. The Court also found that the applicant had not demonstrated that the delay in making a decision had caused him any prejudice. Accordingly, the Court dismissed the application for relief.

The Court made the following orders:
1. The amended originating application be dismissed.
2. The applicant pay the respondent’s costs of this proceeding as taxed or agreed.

Orders

Orders of the court

1. The amended originating application be dismissed.

2. The applicant pay the respondent’s costs of this proceeding as taxed or agreed.

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

Background

Background to the litigation

The applicant alleges that the respondent (“the Minister”) failed to make a decision with respect to the applicant’s application for a protection visa dated 13 May 2020 (“the protection visa application”) under ss 47 and 65 of the Migration Act 1958 (Cth) (“the Act”) within a reasonable time. The applicant seeks a declaration to that effect. The applicant also seeks a writ of mandamus requiring the respondent to proceed forthwith to consider and determine his protection visa application. FACTUAL BACKGROUND The applicant claims to have been born in Afghanistan and to be of Hazara ethnicity. He first arrived in Australia in 2008 as a holder of a Partner (Provisional) (Class UF) (Subclass 309) visa (“the Subclass 309 visa”). On 17 June 2013 the Australian Security Intelligence Organisation (“ASIO”) issued the applicant with an adverse security assessment (“ASA”). It appears that the ASA was based on ASIO investigations which were said to indicate that the applicant had been involved in people smuggling operations. It also appears that the applicant denied that he was involved in any such activity. A truncated and unclassified summary of the ASA states that the applicant was born in Afghanistan, that he is of Hazara ethnicity, and that he resided in Pakistan before relocating to Australia. According to the summary, ASIO assessed that the applicant had been involved in an extensive Indonesian based people smuggling syndicate that had targeted Australia. The summary also records that the applicant denied being involved in people smuggling activities when interviewed. The summary shows that ASIO assessed that the applicant would continue to engage in people smuggling activities targeting Australia and that on that basis he was directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth). On 19 June 2013 the applicant’s Subclass 309 visa was cancelled and he was taken into immigration detention. On 4 March 2015, the High Court dismissed an appeal brought by the applicant from a judgment of the Full Federal Court dismissing his application for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the ASA. On 1 May 2015 the applicant applied for a protection visa. On 15 June 2016 a Delegate of the Minister refused the applicant’s protection visa application. On 21 September 2016 the Delegate’s decision was affirmed by the Tribunal. Proceedings brought in the FCCA seeking judicial review of the Tribunal’s decision were unsuccessful at first instance and on appeal to this Court. On 14 November 2019 the applicant filed a proceeding in the High Court seeking constitutional or other relief in relation to the legality of his detention. At that time the applicant had been in detention for approximately six years. On 10 March 2020 a single judge of the High Court dismissed the applicant’s application. On 8 May 2020 the Minister invited the applicant to make a further application for a protection visa after the Minister made a determination under s 48B of the Act. The applicant lodged a further application for a protection visa on 13 May 2020. It is this visa application that is the subject of this proceeding.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 65(1) of the Act also provides:65 Decision to grant or refuse to grant visa(1)Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:(a) if satisfied that:(i)the health criteria for it (if any) have been satisfied; and(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and(iv)any amount of visa application charge payable in relation to the application has been paid;is to grant the visa; or(b) if not so satisfied, is to refuse to grant the visa.Note 1:Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in a determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has reached a specified maximum number.…Section 65(1) requires the Minister to notify the applicant of the decision to grant or refuse to grant a visa. Also relevant is s 501(1) of the Act which provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The “character test” is defined in s 501(6). GROUNDS OF APPLICATION The applicant’s amended originating application filed on 6 September 2021 specifies the relief sought and the grounds on which the applicant relies. As previously mentioned, the relief sought includes a declaration that the Minister failed to make a decision within a reasonable time. The particulars provided in support of the applicant’s contention that the Minister failed to make a decision within a reasonable time refer to the applicant’s arrival in Australia in 2008 on the Subclass 309 visa, and the cancellation of that visa after ASIO issued an ASA. The particulars also refer to the litigation between the applicant and the Director-General of Security, the application for a protection visa made by the applicant in 2015, the decision of the Tribunal affirming the Delegate’s decision to refuse that application, and the litigation in this Court in relation to that refusal. Reference is also made in the particulars to the proceedings brought by the applicant in the High Court in 2019 in relation to his detention. After referring to the visa application lodged on 8 May 2020, the particulars recount the history of the application through to 13 May 2021, noting that no decision had been made by the Minister or his Delegate in relation to the visa application.

Ratio Decidendi

Legal Principle Established

A copy of the QSA was forwarded by an officer of the Security Assessment Liaison and Analysis (“SALA”), another section of the Department, by email to Ms Kimberly Turner and other departmental officers on 27 May 2021. Relevantly, the email from SALA stated:ASIO assesses [the applicant] is not directly or indirectly a risk to security (within the meaning of section 4 of the ASIO Act) and that it would be consistent with the requirements of security for [the applicant] to hold a Protection (XA866) subclass visa.This assessment supersedes the Adverse Security Assessment (ASA) which was signed on 17 June 2013.Next Steps/Considerations•Whilst the client now meets the section 36(1B) security requirements associated with the protection visa, there is further information contained in the QSA Statement of Grounds (SoG) which may impact on broader visa considerations. SALA will make the QSA SoG available for viewing to appropriately cleared officers with the need to know. Please notify SALA once relevant officers are ready to review the QSA SoG.•ASIO has not issued Home Affairs with an unclassified version of the SoG. Further to this, ASIO is not required to issue an unclassified version of the SOG to the client or to Home Affairs.… I will return to the question of the offer of access to the QSA Statement of Grounds and difficulties that have arisen in arranging for appropriately cleared offices of the Department to be given access to that document. It is sufficient to say at this point that ASIO will ordinarily only make the Statement of Grounds available to appropriately cleared officers at a secure facility in Canberra. It is not clear from the evidence when Ms Battisson or the applicant first became aware that ASIO had issued the QSA. The QSA and the SALA email to which I have referred do not appear to have been produced to the applicant’s legal representatives until shortly prior to the hearing. However, on 25 June 2021 the Minister filed an affidavit of Ms Sally Pfeiffer, an Assistant Secretary of the Department, which referred to the QSA. Ms Turner reported to Ms Pfeiffer at all relevant times up to approximately 20 August 2021. On that date, Ms Pfeiffer was temporarily moved to manage requests for emergency humanitarian visas in Afghanistan. In her affidavit made on 25 June 2021, Ms Pfeiffer says that departmental officers were currently undergoing the appropriate clearance process to be able to review the QSA which I take to mean the QSA Statement of Grounds. According to Ms Pfeiffer’s evidence, if the information contained in the Statement of Grounds opens up additional lines of enquiry, it may then be necessary to arrange a further interview with the applicant. She also says that while the applicant now satisfies the requirements of s 36(1B) of the Act, no protection obligations assessment has been completed in relation to the applicant at this stage of the decision-making process. She also says that is she unable to give any indication as to how long it will take to complete the process.