FUD18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

FUD18 v Minister for Home Affairs [2021] FCAFC 132

Appeal from: FUD18 v Minister for Home Affairs [2020] FCA 48; (2020) 168 ALD 474
File number: NSD 205 of 2020
Judgment of: WIGNEY, LEE AND WHEELAHAN JJ
Date of judgment: 30 July 2021
Catchwords: MIGRATION – appeal from orders of a single judge declining to make an order restraining the Minister from refusing to grant the appellant a visa on the basis of character grounds under s 501(6)(h) of the Migration Act 1958 (Cth) – Vietnamese national alleged to have deliberately acted against national regulations – Interpol red notice issued by the Vietnamese government in relation to appellant – where prohibition sought is pre-emptory in nature – consideration of the discretionary nature of constitutional writs – preferable that the administrative decision-making process run its natural course – relief sought refused in the exercise of discretion – appeal dismissed
Legislation:

Constitution s 75

Migration Act 1958 (Cth) ss 65, 189, 476A, 501, 501E, 501F, 503A

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) sch 1

Criminal Code of Vietnam art 165

Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 2009) 239 CLR 27

FUD18 v Minister for Home Affairs [2020] FCA 48; (2020) 168 ALD 474

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389

R v Federal Court of Australia; Ex parte Western Australia National Football League Inc (1979) 143 CLR 190

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185

Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; (2012) 301 ALR 420

R v Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185

Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2015] HCA 3; (2015) 255 CLR 231

Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017)
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 162
Date of hearing: 13 November 2021
Counsel for the Appellant: Mr T Brennan SC with Ms C Winnett and Ms K Lindeman
Solicitor for the Appellant: Kinslor Price Solicitors
Counsel for the Respondent: Mr G Johnson SC with Mr M Cleary
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 205 of 2020
BETWEEN:

FUD18

Appellant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

WIGNEY, LEE AND WHEELAHAN JJ

DATE OF ORDER:

30 JULY 2021

THE COURT ORDERS THAT:

1.Leave be granted to the…

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Details
Case
[2021] FCAFC 132
Decision Date

CaseChat Overview and Summary

The case of FUD18 v Minister for Home Affairs concerns a Vietnamese national, Mr H, who applied for a visa under the Migration Act 1958 (Cth) and faced potential refusal on character grounds. Mr H sought relief in the Federal Court of Australia to prevent the Minister from refusing his visa application on the basis of s 501(6)(h) of the Act. The primary judge declined to grant the relief, and Mr H appealed to the Full Court.

The legal issues in the appeal included whether the primary judge correctly interpreted s 501(6)(h) of the Act and whether it was reasonable to infer from an Interpol red notice that Mr H would present a risk to the Australian community. The Full Court considered the discretionary nature of prerogative writs and the appropriateness of permitting the administrative decision-making process to run its natural course.

The Full Court held that the appeal should be dismissed as the relief sought was pre-emptive and discretionary. The Court agreed that the primary judge exercised his discretion appropriately in declining to grant the relief. However, the Court also noted that there was merit in Mr H’s argument that the primary judge's interpretation of s 501(6)(h) of the Act might have been erroneous and that it would not be reasonable to infer from the Interpol notice that Mr H would present a risk to the Australian community in the absence of further information or evidence.

The Court granted leave for Mr H to file an amended notice of appeal and dismissed the appeal with costs.

Orders

Orders of the court

1. Leave be granted to the appellant to file an amended notice of appeal and the amended notice of appeal annexed to the affidavit of David Kenneth Brooks sworn 20 July 2020 may be taken to have been filed in accordance with that leave.

2. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

While I agree with Lee and Wheelahan JJ that the appeal should be dismissed on that basis, my views differ to some extent from their Honours’ views as to some of the other issues that were raised by Mr H’s appeal. In particular, in my view there is merit in Mr H’s contention that the primary judge proceeded on the basis of an erroneous interpretation of s 501(6)(h) of the Act. I also consider that there is considerable merit in some of Mr H’s arguments as to why, in the absence of any further information or evidence, it would not be reasonable to infer from the relevant Interpol notice that Mr H would present a risk to the Australian community, or a segment of it. It is appropriate that I give some brief reasons in relation to those issues, particularly given the likelihood that Mr H’s case may end up in this Court again should the Minister ultimately decide to refuse Mr H’s visa application on the basis of s 501(6)(h) of the Act. RELEVANT FACTS The relevant facts were for the most part not contentious. They were comprehensively addressed by the primary judge (Judgment at [1]-[27]) and have been summarised by Lee and Wheelahan JJ in this proceeding. It suffices to note the following. First, Mr H applied for the visa currently in issue on 20 April 2011. There followed a period of appalling inaction and obfuscation on the part of the Minister’s department, now named the Department of Home Affairs. It would seem that officers of the Department who were assessing the visa application took the view that Mr H had satisfied all the criteria for the visa, but nevertheless made no decision concerning the application because they became aware of the existence of an Interpol red notice. The content of the Interpol notice will be considered in more detail later. It suffices at this point to note that the existence of the notice did not itself provide any basis for refusing Mr H’s visa application, at least when Mr H first made it. Paragraph 501(6)(h) was only inserted into the Act in December 2014: see Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) s 2 and item 12 in Schedule 1. Nevertheless, the officers appear to have delayed making a decision in respect of the visa application because of an apparent concern about the impact that such a decision would have on Australia’s relations with Vietnam. That is not to say that the officers raised with Mr H any issue or concern arising from the Interpol notice. Indeed, for many years it seems they told him next to nothing. They initially simply referred to the need to conduct character checks. At one point in late 2011, Mr H was invited to comment on media reports that he was the subject of an arrest warrant. Mr H responded to that invitation. It was not until June 2018 that Mr H was told that the roadblock in respect of the approval of his visa application was that there was an Interpol red notice in force in relation to him. That only occurred after Mr H, no doubt exasperated by the Department’s obfuscation, filed an application in the Federal Circuit Court of Australia in May 2018 in which he sought an order compelling the Minister to decide his visa application. That proceeding was eventually dismissed by consent because, shortly after it was commenced, the Minister gave Mr H notice that he intended to consider refusing Mr H’s visa application on the basis that he did not pass the character test. That was said to be because it was reasonable to infer from an Interpol notice in force in relation to Mr H that Mr H “would present a risk to the Australian community, or a segment of that community”: s 501(6)(h) of the Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In an application that Mr H filed in this Court he sought, amongst other things, a writ of prohibition, the effect of which would have been to restrain the Minister from refusing his visa application on the basis that he did not pass the character test by reason of s 501(6)(h) of the Act. The primary judge refused to grant that relief and dismissed Mr H’s application. His Honour held, amongst other things, that Mr H had not demonstrated that it would not be open to the Minister to conclude that it was reasonable to infer from the relevant Interpol notice that Mr H would present a risk to the Australian community, or a segment of it: FUD18 v Minister for Home Affairs [2020] FCA 48 (Judgment) at [62]. Mr H appealed the primary judge’s dismissal of his application. The relief sought by Mr H, should his appeal be allowed, included relief which was to the same or similar effect as the relief refused by the primary judge. It included a writ of prohibition restraining the Minister from refusing his visa application on the basis of s 501(6)(h) of the Act. I have had the advantage of reading, in draft, the reasons for judgment to be published by Lee and Wheelahan JJ. I agree with their Honours that Mr H’s appeal should be dismissed, primarily on the basis that the relief sought by Mr H should be refused on discretionary grounds. In short, the anticipatory or pre-emptive nature of the relief sought by Mr H was and is inappropriate in all the circumstances. Rather, Mr H’s visa application should be permitted to run its course. If the result is that Mr H’s visa application is refused, it would then be open to Mr H to challenge that decision in judicial review proceedings. While I agree with Lee and Wheelahan JJ that the appeal should be dismissed on that basis, my views differ to some extent from their Honours’ views as to some of the other issues that were raised by Mr H’s appeal. In particular, in my view there is merit in Mr H’s contention that the primary judge proceeded on the basis of an erroneous interpretation of s 501(6)(h) of the Act. I also consider that there is considerable merit in some of Mr H’s arguments as to why, in the absence of any further information or evidence, it would not be reasonable to infer from the relevant Interpol notice that Mr H would present a risk to the Australian community, or a segment of it. It is appropriate that I give some brief reasons in relation to those issues, particularly given the likelihood that Mr H’s case may end up in this Court again should the Minister ultimately decide to refuse Mr H’s visa application on the basis of s 501(6)(h) of the Act. RELEVANT FACTS The relevant facts were for the most part not contentious. They were comprehensively addressed by the primary judge (Judgment at [1]-[27]) and have been summarised by Lee and Wheelahan JJ in this proceeding. It suffices to note the following. First, Mr H applied for the visa currently in issue on 20 April 2011. There followed a period of appalling inaction and obfuscation on the part of the Minister’s department, now named the Department of Home Affairs. It would seem that officers of the Department who were assessing the visa application took the view that Mr H had satisfied all the criteria for the visa, but nevertheless made no decision concerning the application because they became aware of the existence of an Interpol red notice. The content of the Interpol notice will be considered in more detail later. It suffices at this point to note that the existence of the notice did not itself provide any basis for refusing Mr H’s visa application, at least when Mr H first made it. Paragraph 501(6)(h) was only inserted into the Act in December 2014: see Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) s 2 and item 12 in Schedule 1. Nevertheless, the officers appear to have delayed making a decision in respect of the visa application because of an apparent concern about the impact that such a decision would have on Australia’s relations with Vietnam.

Ratio Decidendi

Legal Principle Established

It is convenient to deal with the orders for prohibition and a declaration first, before turning to consider whether a mandamus should issue.Prohibition and Declaration What is significant is that, unlike in ERY19, the appellant is not challenging any decision of the Minister to refuse the grant of a visa, but is seeking to prevent, in the future, the Minister from refusing to grant him a visa on the basis that he does not pass the character test by reason of s 501(6)(h). The Minister made the submission that it is not known what further information may be received and relied upon in relation to the appellant’s visa application, making it difficult to sustain an argument that, even if the Court were satisfied now that the appellant passes the character test, there is no basis upon which it could, in the future, reasonably be concluded that the appellant fails the character test by reason of s 501(6)(h).Legal principles It is trite to observe that the jurisdiction of this Court to issue prerogative writs contained in s 75(v) of the Constitution is discretionary: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (at 101–9 [43]–[60] per Gaudron and Gummow JJ, with whom Gleeson CJ agreed at 89 [5]; see also 137 [149] per Kirby J). In the exercise of discretion, a Court may decline to grant relief if a more convenient and satisfactory remedy exists or no useful result could ensue: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 (at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ). As Justice Gibbs (as his Honour then was) observed in R v Federal Court of Australia; Ex parte Western Australia National Football League Inc (1979) 143 CLR 190 (at 216):[P]rohibition is discretionary (at least where lack of jurisdiction is not patent) and in some cases it would be convenient to defer the hearing of an application for prohibition until further proceedings had been taken in the tribunal against which prohibition was sought. This might be because a decision in favour of one party would render academic the question whether prohibition should be granted, or because it would assist [the High Court] in discharging its ultimate responsibility if evidence were taken in the tribunal below. Those examples are not intended to be exclusive.See also the remarks of Barwick CJ (at 206–7) and Mason J (as his Honour then was) (at 230–1). The prohibition sought in this case is “anticipatory” or “pre-emptive” in nature as the proposed order precedes a determination by the Minister to either grant or refuse the appellant a visa. The fact that the relief sought by the appellant is pre-emptive in nature goes to the Court’s discretion to grant the relief: see Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) (at 484–50 [12.60]). Indeed, the authorities suggest that when an order in the nature of prohibition is sought in relation to future conduct, there must be more than a risk of procedural unfairness; there must be a strong probability that procedural unfairness will result: see Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; (2012) 301 ALR 420 (at 450–1 [131]–[133] per McColl JA and at 451–2 [137]–[145] per Sackville AJA, with whom Meagher JA agreed at 451 [135]). While the Court in Lewis was talking in terms of quia timet relief, both McColl and Sackville JJA drew on the law in relation to prohibition as analogous.