FEL19 v Minister for Immigration and Multicultural Affairs
[2024] FCA 1249
•29 October 2024
FEDERAL COURT OF AUSTRALIA
FEL19 v Minister for Immigration and Multicultural Affairs [2024] FCA 1249
File number: NSD 1077 of 2024 Judgment of: BROMWICH J Date of judgment: 29 October 2024 Catchwords: MIGRATION – s 501BA cancellation decision made in person by the Minister for Immigration and Multicultural Affairs – where the Minister admits he made a legal error in finding that applicant’s protection visa application was not “finally determined” for the purposes of s 198(5A) of the Migration Act 1958 (Cth), so that this provision restrained the applicant’s removal from Australia – where an injunction restrained the Minister from removing the applicant – where the applicant contends the error was material and the Minister denies the legal error was material – HELD: the error was not material as the fact the applicant could not be removed remained correct after the source of the error was removed – application dismissed with costs Legislation: Migration Act 1958 (Cth) (as at 18 June 2024) ss 5(9), 5(9A), 5(9A)(e), 5(9B); 198(5), 198(5A), 198(5A)(b)(ii); 473EA(2); 501BA, 501BA(2), 501BA(3) Cases cited: FEL19 v Minister for Immigration [2020] FCCA 331 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 23 Date of hearing: 23 October 2024 Counsel for the Applicant: Mr L Karp Solicitor for the Applicant: Mr W Berthelot, Legal Aid Commission of NSW Counsel for the Respondent: Mr G Hill SC and Mr N Swan Solicitor for the Respondent: HWL Ebsworth ORDERS
NSD 1077 of 2024 BETWEEN: FEL19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
29 OCTOBER 2024
THE COURT ORDERS THAT:
1.The amended originating application for judicial review be dismissed.
2.The applicant pay the respondent’s costs as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
Introduction
This is a challenge by judicial review of a decision made on 18 June 2024 by the Minister for Immigration and Multicultural Affairs, to override a decision of the Administrative Appeals Tribunal to revoke the cancellation of the applicant’s bridging visa and instead to cancel that visa. The power to override the Tribunal’s decision is only given to the Minister in person by s 501BA of the Migration Act 1958 (Cth). The power is exercisable upon the basis of the Minister being satisfied that the visa holder failed the character test and being satisfied that the visa cancellation was in the national interest: s 501B(2). There is no right to natural justice in relation to the Minister’s personal decision: s 501BA(3).
All references to legislation in these reasons are to provisions of the Migration Act as at the date of the Minister’s decision on 18 June 2024.
The applicant’s challenge turns on a legal error made by the Minister about the operation of s 198(5A). The Minister thought that this provision, in preventing the applicant’s removal from Australia until his protection visa application had been “finally determined”, extended until his judicial review proceedings challenging a refusal of a protection visa had concluded. However, a definition provision in s 5 made it clear that the phrase “finally determined” referred only until the conclusion of the executive process refusing the grant of that visa.
The applicant contends that the legal error in relation to the operation of s 198(5A) was material and therefore jurisdictional. The Minister contends that the legal error was immaterial and therefore not jurisdictional, because of the objective fact that there was a court injunction in place preventing the applicant’s removal from Australia, which would operate until his judicial review application was decided. The information before the Minister did not refer to the injunction.
For the reasons that follow, I am satisfied that had the Minister’s legal error not been made, the outcome could not possibly have been different. The error was therefore not material, and not jurisdictional. Accordingly, this proceeding must be dismissed with costs.
The history of events
The history of events leading to the Minister’s decision are as follows:
(a)In 2016, the applicant applied for a temporary protection visa. In early 2018, a delegate of the Minister refused to grant that visa. Several months later in 2018, the delegate’s decision was affirmed by the Immigration Assessment Authority.
(b)In late 2019, the applicant applied to the Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia), for an extension of time within which to bring an application for judicial review of the Authority’s decision.
(c)In early February 2020, the applicant applied for and was granted an injunction by the Circuit Court to prevent him from being removed from Australia until “further order”.
(d)In early March 2020, the applicant was granted the bridging visa that is the subject of this proceeding, for the purpose of enabling him to pursue the application for an extension of time to bring his judicial review application.
(e)In September 2022, the applicant committed serious criminal offences. He pleaded guilty to those offences. He was ultimately sentenced to imprisonment for 14 months by the District Court of New South Wales (following his successful appeal from a longer prison sentence). The non-parole period for that prison sentence was fixed to expire on 8 May 2023.
(f)On 13 April 2023, a delegate of the Minister was required to cancel the applicant’s bridging visa by reason of s 501(3A).
(g)On 19 February 2024, another delegate decided there was no basis to revoke the cancellation of the applicant’s bridging visa.
(h)On 6 May 2024, the Tribunal set aside the delegate’s non-revocation decision replaced it with a decision revoking the cancellation of the bridging visa.
(i)On 18 June 2024, the Minister set aside the Tribunal’s decision to revoke the cancellation of the applicant’s bridging visa, and cancelled that visa because he was satisfied that the applicant did not pass the character test due to the operation of s 501(6)(a) and that cancellation was in the national interest.
The scope of the 2020 injunction
The injunction granted by the Circuit Court in February 2020 remains on foot. It restrains the Minister (by himself or by his department, officers, delegates or agents) from removing the applicant from Australia until further order. The express reason the Circuit Court judge gave for granting that injunction, over the Minister’s objection, was “at least” to enable the application for an extension of time to be properly determined: FEL19 v Minister for Immigration [2020] FCCA 331 at [28]. I am satisfied that the evidence about the injunction, including its currency, is relevant, because it establishes the true state of affairs that existed at the time of the Minister’s decision. That is so despite the fact that information about the injunction was not before the Minister.
For completeness, I note that the applicant’s application for an extension of time in which to bring an application for judicial review of the Authority’s decision to affirm the refusal of a protection visa is listed to be heard in the Circuit Court on 27 November 2024.
The impugned aspects of the Minister’s decision
The issue raised in this proceeding is in the exercise of the Minister’s discretion to cancel the applicant’s bridging visa, confined to the topics of the legal consequences of the decision and the impediments the applicant would face if he were removed to Sri Lanka, his country of origin. Other topics going to the exercise of the Minister’s discretion are not in issue.
The impugned aspects of the Minister’s reasons are contained in the last sentences of [59] and [64]. The first impugned aspect appears in the Minister’s discussion of the “legal consequences of the decision”. After noting that unlawful non-citizens are generally liable to removal pursuant to s 198, he states (emphasis added):
[59] [The applicant] has applied for a protection visa, which was refused. The Immigration Assessment Authority affirmed that decision on 9 May 2018. [The applicant] has since applied for judicial review of that decision. That matter has not yet been listed for hearing. In the circumstances, I have decided that it is not necessary to consider [the applicant]’s protection claims as part of this application, in circumstances where those claims have been considered, and have been determined by the Immigration Assessment Authority to be unfounded, and are now the subject of ongoing judicial review proceedings that will resolve the lawfulness of the decision made in relation to those claims. I also note that, pursuant to s198(5A) of the Act, [the applicant] cannot be removed from Australia until his protection visa application is finally determined.
The second impugned aspect appears in the Minister’s discussion of the “impediments if removed to Sri Lanka.” After detailing several claims raised by the applicant about impediments if he were returned to Sri Lanka, the Minister concluded (emphasis added):
[64] Whilst I have read and understood the above claims, and consider that they weigh against a decision to cancel [the applicant]’s visa, I only give limited weight to those impairments because [the applicant] will not be removed to Sr Lanka as a result of my decision. Pursuant to s198(5A) of the Act, [the applicant] cannot be removed until his protection visa application is finally determined.
The Minister correctly concedes that a legal error was made by attributing the reason why the applicant could not be removed from Australia to s 198(5A), but contends that this was not material because that part of the reasons was otherwise legally and factually correct. That is asserted to be so because of the injunction restraining the Minister from removing the applicant from Australia that was still in place at the time of the decision, even though the Minister did not know about the injunction. The applicant maintains that the legal error was material, as it led the Minister to give less weight to the impediments the applicant would face if removed to Sri Lanka than would have been afforded to them otherwise, which could have resulted in a different outcome. The Minister accepts that, if this error were found to be material, there is no issue of lack of utility of the proceeding for the applicant so as to deprive him of the relief he seeks on discretionary grounds.
The determination of materiality requires the backward-looking reasoning mandated by MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [37]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The reasoning in MZAPC, and in other like decisions on materiality in the High Court, was confirmed and explained in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610.
The question is whether the decision “could, not would, ’realistically’ have been different” but for the error, excluding fanciful and improbable possibilities: LPDT at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). Their Honours held that it is not permissible to conduct a form of merits review by assuming the function of the decision-maker in order to determine, in an impermissible forward-looking way, whether the same conclusion could have been reached had the error not been made: LPDT at [15]. Their Honours then summarised the conclusions they had reached at [16]:
In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
The reason why the reference to s 198(5A) was indeed a legal error is relevant to materiality, such that it is necessary to explain why the applicant’s assertion in that regard, and the Minister’s concession to that effect, are correct. Section 198(5A) of the Migration Act, together with s 198(5) to which it refers, provide as follows:
(5)An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:
(a) is a detainee; and
(b)neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;
regardless of whether the non-citizen has made a valid application for a bridging visa.
(5A) Despite subsection (5), an officer must not remove an unlawful non-citizen if:
(a)the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and
(b) either:
(i) the grant of the visa has not been refused; or
(ii) the application has not been finally determined.
In its ordinary meaning, the final phrase in s 198(5A)(b)(ii), “finally determined”, would refer not just to final determination of the executive visa application process, including merits review, but also to the final determination of the judicial review proceeding in relation to that application. That would remain the reasonable ordinary meaning of that phrase as it appears in the Minister’s reasons, but for the reference to s 198(5A).
However, the phrase “finally determined” used in the impugned last sentence of the Minister’s reasons at [59] and [64], sourced in those sentences to s 198(5A), is defined differently to its ordinary meaning in its application in various provisions of the Migration Act, including in relation to that provision. Relevantly, a visa application subject to review by the Authority is defined to be “finally determined” when a decision is made by the Authority under s 473EA(2), as happened in this case: see s 5(9A)(e). Thus, the application for the protection visa was finally determined for the purposes of s 198(5A) when the Authority affirmed the refusal of the protection visa. The later judicial review application did not change that state of affairs.
For completeness, nowhere in this set of relevant definition provisions on this topic in subsections 5(9), (9A) or (9B) is there anything to suggest that any of the visa applications referred to are not finally determined if judicial review proceedings are commenced in relation to a refusal to grant a visa, or to an affirmation of such a refusal following executive merits review. There was and is no basis for extending the phrase “finally determined” in s 198(5A) to encompass the conclusion of the judicial review proceeding brought by the applicant.
The Minister’s reference to s 198(5A) as the source of the restraint on removing the applicant was wrong. The applicant’s protection visa application had been finally determined by the Authority at the time of the Minister’s decision, and therefore s 198(5A) did not prohibit his removal from Australia. However, the injunction granted in the judicial review proceeding had the same effect as if the phrase “finally determined” in s 198(5A) did extend to the conclusion of the judicial review proceeding. The Minister could not remove the applicant from Australia so long as the injunction remained in place.
Although the terms of the injunction meant that it was only in place until further order, the reasons for granting the injunction made it clear that it was intended to cover the period until the final determination of, at least, the application for an extension of time to bring an application for judicial review of the Authority’s decision. I reject the applicant’s argument that there was any realistic possibility of the injunction being discharged independently of the conclusion of the judicial review proceeding, at least to the point of the determination of the application for an extension of time, even upon the basis of the applicant not complying with the procedural orders to bring it to a hearing. Such a discharge would be contrary to the basis on which the injunction was ordered.
Each impugned phrase in the final sentences of [59] and [64] is wrong in sourcing the restriction on removal of the applicant from Australia to s 198(5A). However, each sentence is factually and legally correct if that reference is removed because of the effect of the injunction, albeit that the injunction order was not in the material before the Minister. What matters is that the applicant could not be removed from Australia at the time of the Minister’s decision. No other aspect of the Minister’s reasons is impugned.
If the impugned phrases are struck out so that the error is removed, [59] and [64] read as follows:
[59] [The applicant] has applied for a protection visa, which was refused. The Immigration Assessment Authority affirmed that decision on 9 May 2018. [The applicant] has since applied for judicial review of that decision. That matter has not yet been listed for hearing. In the circumstances, I have decided that it is not necessary to consider [the applicant]’s protection claims as part of this application, in circumstances where those claims have been considered, and have been determined by the Immigration Assessment Authority to be unfounded, and are now the subject of ongoing judicial review proceedings that will resolve the lawfulness of the decision made in relation to those claims. I also note that [the applicant] cannot be removed from Australia until his protection visa application is finally determined.
[64] Whilst I have read and understood the above claims, and consider that they weigh against a decision to cancel [the applicant]’s visa, I only give limited weight to those impairments because [the applicant] will not be removed to Sr Lanka as a result of my decision. [The applicant] cannot be removed until his protection visa application is finally determined.
There is no error in the Minister’s reasons if the erroneous attribution phrases are removed. It is therefore clear that if the legal error had not been made, there is no possibility that the decision could have been different. The error was not material and not a jurisdictional error. The amended originating application for judicial review must therefore be dismissed with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate:
Dated: 29 October 2024
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