ENT19 v Minister for Home Affairs & Anor - [2023] HCATrans 26

[2023] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

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 TUESDAY, 14 MARCH 2023, AT 2.16 PM

(Continued from 8/12/2022)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MS L.G. DE FERRARI, SC, MR J.D. DONNELLY, and MS E.A.M. BRUMBY for the plaintiff. (instructed by Zarifi Lawyers)

MR S.B. LLOYD, SC: May it please the Court, I appear with MS A.M. HAMMOND and MR J.G. WHERRETT for the defendants. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Walker. Do we take it from your outline of argument that there is some aspects of the argument previously advanced that are no longer pursued?

MR WALKER: I think the answer to that – short answer, that is – yes. And I should also add, and some decidedly downgraded; that is, in a fallback sequence.

KIEFEL CJ: So we can take your outline as definitive of the outline of argument?

MR WALKER: Yes, although my friend and I have had a discussion that it does not alter so much the outline as to substantive argument, but that certainly affects it as to important contingent questions of relief – contingent, that is, upon any success or the kind of success. We need – that is, both of us need – to draw to your attentions, if I may hand it up, the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023, made on 9 February, with the commencement date of 14 February this year.

I am not going to go to any detail into it immediately, or maybe at all, but I need to draw to your attention that, in the event that there was any revisiting of the application for a safe haven enterprise visa in this case, consideration would require to be given – especially in response to our claim which as two-part advances what we will call the peremptory mandamus claim for the issue of a safe haven enterprise visa; the effect on that of the provisions – if I can take you directly to the operative provision, clause 2.08G – has the effect that – and I paraphrase – the application would be taken to be an application for a resolution of status class CD visa. These are not mere changes of nomenclature, it is the difference between a temporary visa and a permanent visa, as it happens.

If it matters at the moment, your Honours will find two pages over in the table with items to describe how this applies to various classes. Item 4, which is out for us – and here is the element of…

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 26
Case: [2023] HCATrans 26
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