DXP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FedCFamC2G 49
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FedCFamC2G 49
File number(s): ADG 367 of 2019 Judgment of: JUDGE A KELLY Date of judgment: 16 September 2021 Catchwords: MIGRATION – Protection visa application – amended application allowed – where Tribunal’s decision affected by jurisdictional error – where question of relief stood over for further submissions – whether court should exercise discretion to refuse relief – whether futility or lack of utility made out – applicable principles – declaration of right – writ of certiorari – writ of mandamus – remit the application for reconsideration – relief granted. Legislation: Australian Constitution (Cth), s 75
Evidence Act 1995 (Cth), s 69
Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 140, 141
Federal Circuit Court of Australia Act 1999 (Cth), ss 15, 16
Migration Act 1958 (Cth), ss 4, 5, 35A, 36, 39, 40, 41, 45, 46, 47, 48A, 65, 84, 116, 412, 414, 476, 501BA
Migration Regulations 1994 (Cth), Sch 2, cl 866.611, Sch 8Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Bechara v Bates (2021) 388 ALR 414
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
DXP19 v Minister for Immigration and Border Protection [2021] FCCA 595
Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146
Gill v Minister for Immigration and Border Protection (2016) 250 FCR 309
Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 288 CLR 566
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
PQSM v Minister for Home Affairs (2020) 279 FCR 175
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Shrestha v Minister for Immigration and Border Protection (2017) 251 FCR 143
Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomas Reuters, 6th ed, 2017)
Number of paragraphs: 36 Date of last submissions: 29 April 2021 Place: Melbourne Solicitor for the Applicant: Victoria Legal Aid Solicitor for the Respondents: Australian Government Solicitor
ORDERS
ADG 367 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXP19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
16 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.An order in the nature of a writ of certiorari issue directed to the second respondent quashing its decision dated 1 October 2019 in relation to application in Case No 1827500 affirming a decision of a delegate of the first respondent made on 18 September 2018 refusing his application for a protection visa.
2.An order in the nature of a writ of mandamus issue directed to the Tribunal requiring it to determine, according to law, the application for review in Case No 1827500.
3.The matter be remitted to the second respondent to be reconsidered (by the Tribunal differently constituted) according to law.
4.The parties file and exchange submissions respecting costs, not exceeding two pages, within seven days.
5.The question of costs be decided on the papers.
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).
REASONS FOR JUDGMENT
JUDGE A. KELLY
Introduction
The reasons for judgment, which explain why I have concluded that the applicant is entitled to relief upon his amended application for judicial review, should be read with the reasons published on 25 March 2021 in which I held that a decision of the Administrative Appeal Tribunal (Tribunal) made on 1 October 2019 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa pursuant to s 65 of the Migration Act 1958 (Act) was tainted by jurisdictional error: DXP19 v Minister for Immigration and Border Protection [2021] FCCA 595 (first reasons).
On 25 March 2021, the Court made orders including that the amended application be allowed. The orders and reasons reflected findings on the two amended grounds of review (a failure to consider evidence and legal unreasonableness), and a finding that the legal errors so identified were material. However, the question of relief was stood over for further submissions.
One complication arising in the present case arises from the applicant’s visa history including that the applicant presently holds a permanent substantive refugee visa. The Minister contends that in those circumstances relief should be refused on discretionary grounds including on the basis of futility: Reasons, [145]-[146]. At first sight the submission has a deal to commend it. However, an examination of the visa history reveals that the applicant has also had a history of criminal convictions and, in turn, has been engaged by police as an informer. This led to the applicant departing Australia for the period 13 April – 18 May 2014.
The applicant contends that irrespective of the applicant holding a permanent substantive refugee visa he remains entitled to a determination of his protection visa application.
For the reasons which follow, relief should be granted as sought by the applicant. Declaratory relief should issue to afford a measure of protection to the applicant in relation to the adverse credibility findings that are contained in the reasons of the Tribunal dated 1 October 2019. Since I have found that the decision is affected by a material and thus jurisdictional error, upon the conclusion that discretionary factors do not militate against the grant of relief, it is also appropriate that certiorari should issue to quash the decision. By dent of s 414(1) of the Act, the Tribunal remains subject to the legislative duty to review the merits of the application. Mandamus should issue to require that the Tribunal performs that obligation according to law.
Background
The background was set out in the first reasons at [4]-[33] and may be summarised as follows.
The applicant is a 30 year old Iraqi citizen who travelled to Australia with his mother and sister.
On a date which is not clear, the applicant together with his mother and sister were recognised as refugees by the United Nations (in Turkey). On 5 January 2010, the applicant’s mother was granted a refugee (Subclass 200) visa (refugee visa). Each of her children, being named as secondary applicants, were also granted a refugee visa on the basis of the mother’s application. The decision to grant the visas was made offshore by an officer of the Australian Embassy, Ankara and recorded in a letter dated 8 January 2010.
On 4 March 2010, the applicant first came to Australia holding the refugee visa and he continues to hold that visa notwithstanding the matters set out below. The letter of advice to the applicant’s mother informing her of the grant of the visa stated that the visa holders could leave and re-enter Australia as many times as they wished until 5 January 2015. Despite the expiry of that period, it is the Minister’s evidence that the applicant continues to hold the refugee visa and that it remains in effect subject to the conditions on which it was granted.
The applicant was convicted and sentenced in 2011 for extensive criminal conduct: [5]. In 2014, and again in 2016, the applicant was charged with having committed further offences: [8]-[10]. In 2012, the refugee visa was the subject of a notice of intention to cancel the visa, the notice being based upon character grounds. For reasons which need not be explored, the notice of intended cancellation was withdrawn. On 13 April – 18 May 2014 respectively, the applicant departed then re-entered Australia, doing so with police assistance as a result of having assisted them as an informer. In 2016, the applicant was sentenced to a further period of imprisonment. Again in 2017, the applicant’s refugee visa was subject to mandatory cancellation under s 501(3A) of the Act. Over the period, 9 February 2017 – 13 February 2020: a delegate made a decision not to review that cancellation decision; a Tribunal affirmed the delegate’s decision; the Federal Court set aside this decision and remitted the application, and; a differently constituted Tribunal set aside the 2017 cancellation decision.
Consequently, the applicant’s refugee visa was reinstated, he was released from detention and at the time of hearing, he continued to hold a refugee visa: [11]-[12]. In this proceeding it is an agreed fact that “the applicant was granted the subclass 200 visa on the basis that he met cl 200.321 as a member of the family unit of his mother.”
Further, in the interim, on 23 May 2018 the applicant applied for a Protection (Subclass 866) visa (Protection visa): [13]. The application for the Protection visa may be understood as arising in the context that at the time of application, the applicant was an unlawful non-citizen by operation, it was said, of the mandatory cancellation of his refugee visa. Any impact arising from the decision of the Federal Court to set aside this decision and to remit of the application upon the applicant’s status under the Act at the time of this application was not explored.
The procedural history of this application, both before the delegate, the Tribunal and in this Court is set out at [14]-[33]. The reasons for claiming protection as set out at [75]-[83] of the protection visa application have been overtaken by later claims. The decisional record of the delegate indicates homosexuality was no part of the applicant’s claim at that time. For present purposes, it is sufficient to note that before the Tribunal the applicant’s new and substantive claim was that he holds a well-founded fear of persecution on the basis that he is homosexual. In prehearing submissions dated 15 March 2019, the applicant claimed after arriving in Australia he came to recognise his homosexuality following the formation of a relationship with Joe, a barman at a night club which he frequented in Perth, Western Australia: [15]. The claim was articulated at pp. 5-6 and country information respecting the treatment of homosexuals in Iraq was provided at pp. 12-15 of those submissions. At [37]-[47], [50] of his statutory declaration, undated, the applicant detailed the basis for his fear of harm on the ground of his sexuality. The evidence of two other witnesses which addressed their knowledge or observations respecting this issue was dealt with in the first reasons at [75]-[77], [94].
For the purposes of this application, a solicitor having the carriage of the matter on behalf of the Minister affirmed an affidavit based upon information obtained from the Department of Home Affairs to which she exhibited a number of business records that were supplied to her pertaining to the applicant’s visa history and the conditions attaching to a protection visa.
While the applicant objected to the hearsay nature of the affidavit it was properly accepted the affidavit exhibited business records: Evidence Act 1995 (Cth), s 69(2). The more substantive objection was that the documents exhibited to the affidavit did not furnish support for a submission made on behalf of the Minister that “refugee and protection visas are substantially the same” and that a “refugee visa is more beneficial than the protection visa.”
Submissions
Counsel for the applicant submitted that as a bare minimum a declaration should issue and the grant of such relief had utility as to do otherwise would leave intact the adverse findings of the applicant’s credibility as contained in the Tribunal’s reasons. A number of factors were identified as supporting the conclusion declaratory relief should be granted. While this relief was not sought in the amended application, no point was taken on that score.
To similar effect, it was submitted that certiorari should issue by reason that if the Tribunal’s decision to affirm the delegate’s decision to refuse the protection visas was not set aside, he would necessarily be subject to the legal consequences not merely of the refusal of the visa application but of the consequences flowing from the application of s 48A of the Act which bars a non-citizen from making a further application for a protection visa while in the migration zone. It was further submitted that the applicant’s refugee visa, which it is agreed remains in effect, would be liable for cancellation under s 116(1)(a) of the Act “for an entirely blameless reason.” Relatedly, it was observed the Minister had not disclaimed the possible exercise of the power of cancellation under s 501BA. It was further submitted the Minister’s submissions against the grant of certiorari were too amorphous to displace the default position that such relief should issue almost as of right: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, [51] (Gaudron and Gummow JJ), [149] (Kirby J). The scope of that submission may be open to question but it is unnecessary to resolve the issue: cf in a broader context Re McBain (2002) 209 CLR 372, [21], (Gleeson CJ), [95]-[112] (McHugh J, Callinan J agreeing, [292]), [219]-[220] (Kirby J), [281]-[285] (Hayne and Gummow JJ, Gaudron J agreeing, [80]).
As to mandamus, it was submitted there was no reason to decouple such relief from certiorari and that the adoption of such an approach was not suggested by the Minister. I agree in those submissions. Contextually, it was observed that if the decision was quashed, the Tribunal remained subject to the duty imposed by s 414(1) to review the delegate’s decision.
Commendably, counsel for the Minister properly accepted that this was not a case where the decision on remittal would inevitably be the same such that the decision-maker would be bound to refuse the application. Nonetheless, it was submitted that this concession did not foreclose the question whether relief should be refused on the basis that no useful result could ensue from the grant of relief. It was submitted that in all the circumstances it would be little (if any) utility in making orders that facilitated a process enabling the applicant to obtain a second visa where to do so would not enhance his position in a practical or legal manner.
Three substantive grounds were advanced against the grant of relief.
First was that the rights and entitlements conferred by the refugee visa held by the applicant and the correlative entitlements conferred by a protection visa were substantially the same. As to this, two factors were identified: (1) each class of visa permitted the holder to remain in Australia indefinitely; (2) a refugee visa was more beneficial than a protection visa in that the former class of visa are not subject to condition 8559 in Sch 8 of the Migration Regulations.
Secondly, it was submitted that although the applicant had a theoretical entitlement on remitter to withdraw the application and thereby avoid the operation of s 48A of the Act, this was also said to be attended by similar difficulty in establishing genuine utility in the grant of relief.
Thirdly, it was submitted that the question of utility should not be considered in a factual vacuum but instead be responsive to the particular circumstances of the case. Here, it was said the applicant already holds a refugee visa and so, on a best case, he might avoid the operation of s 48A as a legal obstacle engaged upon the refusal of his protection visa application; that is, if s 48A was not engaged he would not be prevented from applying onshore for a further protection visa. It was submitted that, in practical terms, this would not enlarge rights now held by the applicant since he is presently entitled to remain indefinitely in Australia.
Resolution
Original jurisdiction is conferred on this Court, in terms referrable to s 75(v) of the Constitution, to grant relief in relation to ‘migration decisions’: Act, ss 5, 476. Such jurisdiction includes the grant of mandamus and prohibition. Further, certiorari is available to quash a decision and, in aid of such relief, the Court has power to direct the issue of writs and to make declarations of right: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 140-141; Federal Circuit Court of Australia Act 1999 (Cth), ss 15-16. However, this Court is denied jurisdiction to undertake judicial review of a primary decision, including a decision made by the Minister or a delegate to grant or refuse a visa: Act, s 476(2). The absence of jurisdiction to do so magnifies rather than dilutes the importance of the availability of declaratory relief.
In the first reasons some attention was given to the object of the Act being to regulate in the national interest, the coming into, and presence in, Australia of non-citizens and, in furtherance of that object, the intent of the Act that it should be the only source of a right of a non-citizen to so enter or remain in Australia: Act, s 4. Relevantly, the scheme of the Act and regulations thereunder contain criteria for applicable classes of visa, including a protection visa: Act, s 36. Concerning the question of relief, some general observations were also provided at [144]-[157], including that the discretion to grant relief may not be exercised favourably in cases where “a reviewing court is persuaded that, despite the jurisdictional error, the visa applicant would inevitably have received the same outcome on review”: PQSM v Minister for Home Affairs (2020) 279 FCR 175, [73]-[76]; see also MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [122]. Recently, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153, Kerr and Mortimer JJ at [174] (Allsop CJ agreeing) observed of the role of a supervising court on judicial review:
Rather, the supervising court must assume a Tribunal acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including the matter which was erroneously omitted, or misconceived, and which caused it to exceed its jurisdiction. See generally Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45 at [67]-[68], Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [70]; PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 at [69]-[73].
Those observations were directed to the question of materiality, not whether relief should be granted or refused in exercise of the discretion which inheres in the court on judicial review.
It was not in contest that relief in the nature of constitutional writs is discretionary: Aala, (2000) 204 CLR 82, [5] (Gleeson CJ), [43]-[62] (Gaudron and Gummow JJ), [145]-[150] (Kirby J). , [172] (Hayne J), [217] (Callinan J); see also Bechara v Bates (2021) 388 ALR 414, [157]-[164] (Allsop CJ, Markovic and Colvin JJ). The applicable principles were examined in some detail in those decisions and the authorities to which they refer. While the aggrieved party is entitled “almost as of right” to relief where jurisdictional error is established, the court retains discretion not to do so where circumstances make it appear just that it should be withheld. A variety of grounds may be identified upon which the court may exercise its discretion to refuse relief on judicial review including where: a more convenient and satisfactory remedy exists; no useful result could ensue; unwarrantable delay or bad faith is shown; there is a lack of diligence in pursuing the remedy; acquiescence or waiver is made out; an appeal lies which has not been pursued; no real injustice has been suffered; the cost and injustice flowing from having to repeat the whole process would have been wholly disproportionate to the practical effect of the error; a lack of clean hands or undisclosed, improper or fraudulent objects are shown; futility or lack of utility is made out; later events have overtaken the proceeding so as to render the issue moot: Bechara v Bates (2021) 388 ALR 414, [164] and cases cited.
In the present case, the grant of relief was opposed on the ground of futility or lack of utility. In Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 at [46]-[53], Besanko J, with whom Moore and Buchanan JJ agreed, held that before the court would exercise its discretion to refuse relief on the ground of futility, it must be quite clear that such reconsideration is or would be futile: see also Buchanan J at [69]. The need for the exercise of considerable caution before withholding relief after jurisdictional error had been demonstrated was reiterated in Gill v Minister for Immigration and Border Protection (2016) 250 FCR 309, [95]-[100]; Shrestha v Minister for Immigration and Border Protection (2017) 251 FCR 143, [12], [41]-[46] (appeal dis’d (2018) 264 CLR 151). In Judicial Review of Administrative Action and Government Liability 6th edn (2017), Aronson, Groves and Weeks examine the issue of futility and the principles applicable to the grant or refusal of relief, concluding at [17.150] “There is in all of these instances a real danger in saying that the ultimate outcome is obvious. Unless the eventual outcome is crystal-clear, a consideration of the likely outcome might shade into consideration of the desirable outcome, which is something that must be left to the primary decision-maker.” The learned authors also recognise the utility of declaratory relief in cases where reputational interests (as by adverse credibility findings) have been effected: [17.160].
In light of Re McBain, it is unnecessary in the present case to explore in further detail the metes and bounds of the discretion to withhold relief on the ground of futility where jurisdictional error is made out. While important considerations may arise in a variety of cases including those where error is shown on the basis of a want of procedural fairness and in others where the application is being remitted to a decision-maker in whom a discretion is reposed, the more fundamental principle that is engaged in a case of the present kind is that persons engaged in the exercise of “executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers” and for that reason “the court should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule law of requires no less”: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, [56] (Gaudron J); see also MZAPC (2021) 95 ALJR 441, [96]; Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, [91]-[92].
Applied here, it was common ground that it is permissible for a person to hold multiple visas in Australia at the same time: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 288 CLR 566, [118]. It was also common ground that the claims advanced in respect of the grant of the Protection visa application had not been assessed.
By s 35A, the Act provides for a class of visa known as a protection visa, the criteria for which are those set out in s 36 and the regulations. The regulations may provide that certain visas may only be granted in specified circumstances and may be subject to specified conditions: Act, ss 40-41. By s 45, a non-citizen who wants a visa must apply for a visa of a particular class. Section 46 provides requirements for the validity of a visa application. Subclass 866 of Sch 2 of the Migration Regulations 1994 (Cth) contain criteria for a protection visa. By cl 866.611, a protection visa is subject to condition 8559 in Sch 8 to the regulations. This condition proscribes the holder of, relevantly, a protection visa, from entering the country in respect of which Australia was found to owe protection obligations. Read with the letter dated 8 January 2010 addressed to the applicant’s mother, she and the secondary visa applicants, were entitled to enter and leave Australia as many times as they wished until 5 January 2015. Objectively, those considerations support the Minister’s submission that in this respect the terms of the applicant’s refugee visa were more beneficial than, and were not subject to the restrictions imposed by condition 8559 upon, a protection visa. For the reasons which follow, it is inappropriate to regard that factor as being decisive on the question of relief.
By s 47(1), a duty is imposed on the Minister to consider a valid application for a visa. This duty inures until the application is withdrawn or a decision is made to grant or refuse the visa or further consideration of the application is prevented by either of ss 39 or 84.
Within Part 7 of the Act, Review of Part 7 – reviewable decisions, provision is made by s 412 for the making of an application for review of such decisions by the Tribunal. Section 414 is entitled Tribunal to review Part 7 – reviewable decisions and, subject to an immaterial proviso, otherwise obliges the Tribunal to review a decision which is the subject of a valid application.
The duty that is imposed by s 414(1) to determine a valid visa application is to be viewed from the perspective that the Act confers an entitlement on a non-citizen to apply for a visa. Since the applicant has made an application for a protection visa, which application has not yet been the subject of assessment on review by the Tribunal, from s 414(1) it must follow that the applicant has a present, enforceable entitlement to have that application determined. Further, upon the principles considered above, it is beyond the function of a supervisory court on judicial review to cut down that entitlement unless it is clearly futile to do so. Upon the facts, it cannot be said that the outcome on remitter is crystal-clear.
The applicant is entitled to have the Tribunal’s decision quashed. This entitlement must carry with it a subsisting obligation under s 414(1) to determine the application for merits review. Until that is done, there is also utility in the declaratory relief that is sought, particularly in light of the adverse credibility findings that are made by the decision of the Tribunal which is the subject of this application: see Singh v Minister for Immigration and Border Protection (2016) 247 FCR 554, [52] (SLR). Nothing in these reasons should be misunderstood as being critical of the approach that was otherwise taken by the decision-maker on the merits review, the subject of this application. The orders that are made merely reflect the application of the settled principle is stated in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36 (Brennan J).
Conclusion
For the reasons above, the applicant has demonstrated an entitlement to relief. It was accepted by the Minister that if relief was granted, costs should follow the event.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 16 September 2021
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