EAB16 v Minister for Immigration

[2017] FCCA 843

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAB16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 843

Catchwords:
MIGRATION – Injunction – cancellation of visa whilst applicant overseas – applicant stranded in Dubai International Airport – whether power to make injunctive orders – effect of s.42(1) of Migration Act – whether Minister entitled to rely on validity of visa cancellation unless and until constitutional writs issued – balance of convenience.

Legislation:

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Migration Act 1958 (Cth), ss.42(1) and 474

Cases cited:

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Lansen and Others v Minister for Environment and Heritage and Another (2008) 174 FCR 14

Applicant: EAB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 125 of 2017

Judgment of: Judge Heffernan

Hearing date: 6 April 2017

Date of Last Submission: 6 April 2017

Delivered at: Adelaide

Delivered on: 6 April 2017 (ex tempore)

REPRESENTATION

Counsel for the Applicant: Mr S McDonald

Solicitors for the Applicant: Camatta Lempens Pty Ltd Lawyers

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. An interlocutory injunction is granted until the final determination of this action, restraining the Minister, the Commonwealth and each of them, including whether by their officers, servants or agents or howsoever otherwise, from acting on the basis that the applicant’s class BB subclass 155 Resident Return visa was validly cancelled by the decision made on 15 March 2017, including in particular, but not limited to, representing via the electronic visa record system of the Department of Immigration and Border Protection that the applicant does not have a class BB subclass 155 Resident Return visa that is in effect.

2. Costs are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 125 of 2017

EAB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 6 April 2017, I made orders in this matter giving brief oral reasons.  I indicated that I would add to those reasons at a later date.  These are my reasons for judgment.

2. This is an Application in a Case seeking an interlocutory injunction seeking to restrain the Minister, the Commonwealth, their officers and all servants and agents, from acting on the basis that the decision made by the Departmental Officer ‘Warren’ on 15 March 2017, had the effect of validly cancelling the applicant’s Class BB subclass 155 resident return visa.

3. I will not repeat in full the chronology set out in the affidavit of Ms Emily Rutherford, dated 5 April 2017, although I have given consideration to it.  The applicant was granted a protection visa in 2009.  In May 2016, he was granted a Class BB Subclass 155 Resident Return Visa.  In 2016 he travelled overseas to Pakistan.  The simple fact of the matter is the applicant is presently stranded in the United Arab Emirates at the Dubai International Airport, his visa having been cancelled, unknown to him, on 15 March 2017.  I am told that he does not have a visa for the United Arab Emirates.  He does not have a visa that would enable him to return to Pakistan.  If the Commonwealth is right in the cancellation of the visa or, to put it more accurately, if there is no jurisdictional error in that decision, then he presently has no visa to return here.

4. The Minister took a neutral attitude to the question of the merits of the substantive application. The Minister’s submissions were directed to whether I have power to grant the interlocutory injunctions sought. It was submitted that I do not. At the heart of the Minister’s submission is s.474 of the Act which renders a privative clause decision final and the contention that, in the absence of constitutional writs being issued, the Minister is entitled to act on the validity of the decision. It was submitted that this was the effect of Plaintiff S157/2002 v Commonwealth of Australia.[1]  Mr d’Assumpcao, for the Minister, also relied on the following remarks of the Full Court of the Federal Court in Lansen and Others v Minister for Environment and Heritage and Another:[2]

   “It would seem that the Full Court was referring to that dicta in Jadwan 145 FCR 1.  The courts have always recognised that a decision made by an administrative decision-maker which is ultra vires the power reposing in the decision-maker lacks any legal effectiveness.  It was often said that the decision was a nullity or void, although these descriptions are neither necessary nor helpful: Bhardwaj 209 CLR 597 at 613.  If the Court declares a decision to have been made in excess or want of jurisdiction, the decision-maker will in conformity with the rule of law treat the decision as having no legal force or effect.  Although the decision always lacked any legal effect, the decision-maker was not required to treat it so until the Court so declared.  There was no legal obligation on the decision-maker to treat an ultra vires decision as legally ineffective and of no consequence.”

   [1] (2003) 211 CLR 476.

   [2] (2008) 174 FCR 14 at [164].

5. In Mr d’Assumpcao’s submission, until a Court of competent jurisdiction sets aside the decision to revoke the applicant’s visa, that decision remains a lawful administrative action and the applicant has no visa. For that reason, he is prevented from entering Australia because of the terms of s.42(1) of the Act which says:

   “(1)Subject to subsections (2), (2A) and (3), a non‑citizen must not travel to Australia without a visa that is in effect.”

6. The exceptions in subsections (2), (2A) and (3) are not relevant for present purposes. It was submitted that this was a fundamental obstacle to the application for an interlocutory injunction. If an injunction is granted in the terms sought, it would have the effect of requiring someone from the Department to make an entry in its electronic records indicating to any airline that consulted them, that the applicant has a valid visa and was lawfully entitled to enter this Country. That, it was submitted, would simply not be the case because no decision has yet been made by a Court quashing the revocation of the visa. The interlocutory relief sought by the applicant in effect invites the Court to grant a visa to the applicant. It was submitted that this must be the case because in the absence of a decision quashing the revocation, this Court would be holding that s.42(1) of the Act does not apply to the applicant, and that he is lawfully entitled to travel to Australia.

7. For the applicant, Mr McDonald submitted that the Minister’s argument is based on a fundamentally incorrect foundation. He submitted that it is a misreading of both s.474 and Plaintiff S157/2002 (supra) to contend that the Minister is required or entitled to treat as valid a decision which is claimed to be infected with jurisdictional error.  He submitted that, properly understood, Lansen’s case (supra) did not establish to the contrary.  He relied on paragraph 165 of that decision, which it was submitted places the previous paragraph into its proper context.

   “In other words, even though a decision infected by jurisdictional error was always of no legal effect, a person affected by the decision could not compel the decision-maker to so treat the decision without the Court’s declaration.  In a practical sense, therefore, a person who claims that a decision has no legal effect will usually need the Court’s assistance to require the decision-maker to so treat the decision.  But simply because the Court’s assistance is required does not make the decision any more effective.”

8. It was submitted that in practical terms, the interlocutory relief sought by the applicant is simply an example of an applicant seeking “the court’s assistance”.  The decision in Lansen (supra) does not stand for the proposition that once the assistance of the Court has been sought, the Minister is required or entitled to treat that decision as being valid.  In effect, what Mr McDonald was putting to the Court is that if a decision is ultimately held to have no legal effect, it was from its inception of no legal effect and once the jurisdiction of the Court has been invoked, it would be absurd if the Minister was entitled to rely on it as a valid decision until it was quashed.  Further, Mr McDonald submitted that there was no substance in the submission that the Court was being asked to grant a visa to the applicant.  If the applicant is ultimately successful, he currently has a visa. 

9. The applicant has been living at the airport since 3 April 2017, which is about three days.  He is at risk of detection and deportation to the only country he claims to have been a citizen of, namely Afghanistan, a country in respect of which this country has previously assessed him as being at risk of persecution and a genuine refugee.  He has filed an application seeking judicial review of the decision of 15 March 2017, seeking a writ of prohibition directed to the Minister, and a final injunction restraining the Minister and the Commonwealth from acting in a way that treats that decision as having been validly made, together with declarations that the visa granted on 19 May 2016 is in force and that the applicant is lawfully permitted to travel to and enter Australia.

10. I accept the applicant’s submission that I have jurisdiction to grant an injunction in the terms sought, that there is a prima facie case on the merits of the substantive applications, that the balance of convenience lies in granting the application, and that I should do so.  I am persuaded by the applicant’s submission that the applicant, having sought to challenge the decision of the delegate, the first respondent cannot rely upon that decision as if it were still a lawful determination, and that the Minister should be restrained from acting on the assumption that the decision is valid.

11. Lansen’s case (supra) dealt with a decision made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Whilst the following remarks of Moore and Lander JJ were directed to that legislation, they are apposite to this matter:

    “We do not accept the respondent’s contention that the Act evinces an intention or discloses a purpose that an approval decision tainted by jurisdictional error is to be treated as valid until such time as the Court declares it to be otherwise.  There is nothing in the EPBC Act which would allow a decision which has been made in circumstances of jurisdictional error to stand as a valid decision or to stand as a decision which has some legal consequences.”[3]

    [3]     Lansen, op cit, at [171].

12. I am not satisfied that s.474 or the other provisions in the Migration Act either evince an intention or disclose a purpose that a decision tainted by jurisdictional error is to be treated as valid until a Court declares it to be otherwise. As submitted by Mr McDonald, the effect of Plaintiff S157/2002 (supra) is that s.474 means that the Court cannot grant constitutional writs or an injunction to set aside a decision that is not affected by jurisdictional error and that the word ‘decision’ in that section refers to a valid decision under the Act.

13. I have considered the application by the Minister for a stay of the order pending a consideration of whether or not to appeal my decision in this matter.  I have concluded the matter is simply too urgent.  The applicant is at risk now.  There is, it seems to me, an appreciable risk that if I were to grant the stay, the subject matter of the application would become moot because he could well have been removed from the United Arab Emirates and returned to Afghanistan, or that steps, irreversible by this Court, could have been put into place by the United Arab Emirates, to effect that course.  The balance of convenience lies in making the orders sought.

14. So, accordingly, I do not propose to grant a stay on the order.  I make the orders to be found at the beginning of these reasons.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 28 April 2017