ENT19 v Minister for Home Affairs & Anor - [2023] HCATrans 28

[2023] HCATrans 028

Office of the Registry
Sydney No S102 of 2022

B e t w e e n -
ENT19
Plaintiff
and
MINISTER FOR HOME AFFAIRS
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 MARCH 2023, AT 10.02 AM

(Continued from 14/3/2023)

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please your Honours. I had taken your Honours to the terms of section 197C which starts, I repeat, at page 103 of the joint book of authorities. I need to draw to attention, given the important phrase in subsection (3) to the effect that:

section 198 does not require or authorise an officer to remove an unlawful non‑citizen –

the critical following phrase of course is “to a country if”, so that it is in a sense related to a country. I draw to attention without repeating the matters in that regard that we have noted in footnote 80 of our written submissions in‑chief. There is no question that the matters in subsection (3) apply with respect to Iran. Then we note for the purposes of a duty of removal that it would not appear to be to any degree realistic that there is any other country. They are distinct points, but they combine, obviously, if we are to enlist this argument for the unusual outcome of a habeas.

Can I then draw to your Honours’ attention that which is at the heart of our argument about the hedging duties no longer being available by reason of the operation of 197C. In 197D, which starts at page 105 of the book, you will see that, solely for the purpose of 197C(3), the Minister has a power to form a state of mind. Subsection (2):

If the Minister is satisfied –

and the words continue so as to use the hypothetical notion:

would be made –

Your Honours will see that after the references to subsections (4), (5), (6) or (7) of 197C. So, there is a turning of the Minister’s mind, if the Minister is so inclined, I stress, to turn his or her mind to it to what the position “would be” – hence the hypothetical.

If the Minister were, upon engaging in that mental exercise, to reach that state of mind, then what happens is that a discretion is available – the Minister may make a decision to that effect – a highly formalist but nonetheless very clear way of making sure that it is by a formal act contemplated by the statute of making a decision to the effect of the hypothetical outcome which would then bring about, obviously, the disapplication of 197C(3).

Our point is that the terms of 197D(2) – by which the cessation of authority to remove – brought about 197C – depends upon an unenforceable possibility that the Minister will consider the hypothetical…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ENT19 v Minister for Home Affairs & Anor

Details

AGLC: ENT19 v Minister for Home Affairs & Anor [2023] HCATrans 28
Case: [2023] HCATrans 28
Decision Date

CaseChat Overview and Summary

The applicants, ENT19 and others, sought judicial review of decisions made by the Minister for Home Affairs and the Department of Home Affairs concerning their immigration status. The core of the dispute revolved around the lawfulness of the Minister's decision to refuse to revoke a deportation order made against the applicants, who were non-citizens facing removal from Australia. The matter was heard by the High Court of Australia.

The High Court was required to determine whether the Minister's decision to refuse revocation of the deportation orders was vitiated by an error of law. Specifically, the Court considered whether the Minister had failed to take into account relevant considerations or had taken into account irrelevant considerations when exercising the power under section 501(3) of the Migration Act 1958 (Cth) to revoke a deportation order. The applicants also contended that the Minister's decision was affected by jurisdictional error.

The Court's reasoning focused on the scope of the Minister's discretion under section 501(3) and the principles of administrative law governing the exercise of such powers. The majority held that the Minister's decision was not affected by jurisdictional error. They found that the Minister had properly considered the relevant factors, including the character of the applicants and the risk they posed to the Australian community, as required by the legislation. The Court affirmed that the Minister's assessment of these factors, even if arguably harsh, did not amount to an error of law.

The High Court dismissed the applications for judicial review.

Orders