LIAO v Minister for Immigration (No.2)
[2019] FCCA 3730
•18 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIAO v MINISTER FOR IMMIGRATION (No.2) | [2019] FCCA 3730 |
| Catchwords: MIGRATION – Delegate of the First Respondent – application for a Business Skills (Provisional) (Class EB) (subclass 188) visa – whether there are concrete facts supporting a right of the applicant to come to the Court for declaratory relief – whether there is real question capable of engaging declaratory relief in proceedings before the Court – proceedings dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.16 |
| Cases cited: Aussie Airlines Pty Ltd v Australian Airlines Ltd, Qantas Airlines Ltd & Federal Airports Corporation (1996) 68 FCR 406 |
| Applicant: | HAIDENG LIAO |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 3046 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 18 December 2019 |
| Date of Last Submission: | 18 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | ProActive Legal |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | AGS |
ORDERS
The name of the respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
Leave to file the second further amended application is refused.
The proceedings are dismissed.
The applicant pay the respondent’s costs fixed in the amount of $7,467.00.
DATE OF ORDER: 18 December 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3046 of 2019
| HAIDENG LIAO |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings were commenced on 21 November 2019. The proceedings seek to invoke this Court’s jurisdiction in respect of a process taking place before a delegate of the respondent (“the Delegate”) in respect of a Business Skills (Provisional) (Class EB) (subclass 188) visa (“Business visa”).
On 25 October 2019, the Delegate issued a letter foreshadowing that the applicant was unlikely to succeed in meeting the requirements under reg 5.19C(3) of the Migration Regulations 1994 (Cth) (“the Regulations”).
The originating application filed on 21 November 2019 identified the assertion that the Court had jurisdiction by reference to sub-ss 474(3)(g) and 474(3)(h) of the Migration Act 1958 (Cth) (“the Act”).
In respect of the letter dated 25 October 2019 as to whether or not the applicant, at that stage, was likely to meet the requirements of the Regulations, the proceedings then framed expressly refer to the hypothetical nature of what was being sought by reference to these funds being “proposed” to be used in both the declaration and the writ of mandamus.
On 22 November 2019, a further amended application was filed which maintained the same obvious hypothetical nature in respect of the relief being sought at a point of time where the Delegate had made no decision.
The letter dated 25 October 2019 was not sent pursuant to any statutory obligation nor, indeed, was it one in respect of which, as a matter of procedural fairness, it could be said the Delegate was required to send. The letter dated 25 October 2019 was obviously an opportunity being given to the applicant to further address the concerns of the Delegate.
Mr Karp of counsel on behalf of the applicant provided a second further amended application in which he sought to identify the seeking of injunctive relief as well as reformulating the declaration so as to be two declarations, a writ of mandamus and an injunction. The Court identified that it would describe the same as the second further amended application and it was marked MFI1. The Court explained that it would consider whether leave should be granted for the filing of the same at the same time as determining the substantive application.
Mr Karp read a number of affidavits in relation to the stage that the proceedings had been reached before the Delegate. None of those affidavits identified that the applicant had no other funds from which he could meet the requirements of the Regulations or that the applicant could not take other steps to meet the concerns of the Delegate.
At the commencement of the hearing, the Court asked Mr Karp what the nature of the right was in order to support the declaratory relief.
Section 16 of the Federal Circuit Court of Australia Act 1999 (Cth) provides as follows:
(1) The Federal Circuit Court of Australia may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A proceeding is not open to objection on the ground that a declaratory order only is sought.
There is a long line of country in relation to the steps that must be met in respect of the seeking of declaratory relief. In Oil Basins Ltd v Commonwealth (1993) 178 CLR 643, Dawson J picked up the following reference to Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437:
The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.
The following requirements were identified before the Court will exercise its discretion to make a declaration:
a)the question must be a real and not a theoretical question;
b)the person raising it must have a real interest to raise it; and
c)there must be a proper contradictor.
There is a further decision of the learned Lockhart J, with whom Spender and Cooper JJ agreed, in Aussie Airlines Pty Ltd v Australian Airlines Ltd, Qantas Airlines Ltd & Federal Airports Corporation (1996) 68 FCR 406 at 414. The learned Lockhart J identified that there must be a question that is not abstract or hypothetical and there must be a real question involved.
The learned Johnson J in Jones v Booth [2019] NSWSC 1066 at [37] identified these principles and also referred, in the context of what was there found to be an advisory opinion, to the absence of concrete facts.
This case is one in respect of which it is patent there are no concrete facts supporting a right of the applicant to come to the Court for declaratory relief.
Mr Karp, with his usual ingenuity, sought to reframe the right as being a right to have the application for the Business visa determined according to law or a right to lawful decision making. Both formulations suffer from the want of the underlining premise that there has, in fact, been a decision made by the Delegate. The sending of the letter dated 25 October 2019, whilst it may well identify a stage potentially within the Act, does not mean that there is a matter in respect of which this Court’s jurisdiction can be invoked.
The jurisdiction under Chapter 3 of the Australian Constitution is not one which is determined by the content of what is in the Act. There must be a real question of right that arises in the context of an endeavour to seek declaratory relief. That may arise in circumstances where, for example, there are concrete facts in respect of conduct by reason of which it is appropriate to find that the decision-maker does not meet the legal requirements in respect of the application of the principles of apprehended bias or, indeed, that there are concrete facts that make up actual bias.
In the circumstances of the present case, however, the mere fact that the Delegate has sent a tentative view in respect of the current state of evidence before the Delegate does not mean that there is any concrete fact of a kind that gives rise to a controversy capable of engaging this Court’s jurisdiction. The proceedings are patently hypothetical.
Mr Karp properly acknowledged that, tomorrow, the applicant could provide evidence of a different kind to the Delegate asserting lawful funds on some other basis. It is also the position that the applicant could seek to take steps to establish the lawful basis the subject of the concern of the Delegate.
Mr Karp also endeavoured to assert that there was a right because there was an error in the interpretation of the law. Again, the problem with that proposition is that there has been no decision made capable of being said to reflect an error in the interpretation of the law.
This is not a case where the facts have been established or could, in any way, be said to be concrete. These proceedings patently suffered the type of problem that was identified in Re Judiciary & Navigation Acts (1921) 29 CLR 257. There is no real question involved capable of engaging declaratory relief in proceedings before this Court.
The formulation of the declarations in relation to the second further amended application advance a negative in relation to the requirements of cl 188.252 of sch 2 to Regulations read with reg 5.19C of the Regulations.
While those declarations do not arise out of concrete facts relating to a decision that has been made giving rise to a right or matter capable of determination by this Court, the applicant also seeks a writ of mandamus that the decision be one made according to law. For the reasons already given, that application is also patently premature.
It is not sufficient to point to the breadth of the Act and assert that that thereby gives rise to there being a matter engaging the Court’s jurisdiction because there is a step along the process towards the making of a decision. The fact that there remain any number of ways in which the matter may proceed before the Delegate further identifies the hypothetical nature and the premature nature of these proceedings.
The second further amended application also seeks an injunction preventing the Minister from making a decision in relation to what is said to be the necessary requirements in respect of cl 188.252 of sch 2 to Regulations read with reg 5.19C of the Regulations. The formulation of the injunction does not identify that there are any underlying concrete facts of a kind that support the existence of a matter capable of supporting the grant of any injunctive relief.
On the evidence before the Court, the Court finds that the questions posed by Mr Karp, in light of proceedings that have been brought, are not real and are theoretical questions. The Court finds that the applicant has no right to seek the relief in respect of the declarations and/or other relief and that the applicant does not have a real interest, at this stage of the proceedings, capable of it being said to give rise to a basis upon which either declaratory proceedings could be brought or the basis upon which the Court would find there was a controversy of a kind which gives rise to a matter capable of determination by this Court in the exercise of the judicial power of the Commonwealth.
Mr Reilly of counsel on behalf of the first respondent correctly pointed out that, even if there had been some basis to find that there was a matter engaging this Court’s jurisdiction, the fact that the applicant has a right of review in the Administrative Appeal Tribunal would be a powerful discretionary reason why this Court would not exercise any discretion to grant relief even if it was found that there was a basis to do so.
This is a case in respect of which, even if there had been found to be a matter in respect of which it could be said there was a possible error of interpretation of a Commonwealth law, this Court would have declined to grant relief in circumstances where the applicant has the ability to seek review on the full merits before the Administrative Appeal Tribunal.
The evidence before the Court identifies that the applicant may incur some costs in having to commit an investment in order to obtain the benefit of seeking to pursue that application. That is inherent in the very nature of the kind of visa that the applicant was seeking and is not a basis upon which this Court would have been prepared to grant any relief as a matter of discretion, even if the alleged error had been the subject of concrete facts.
In these circumstances, it is not appropriate for the Court to grant leave in respect of the relief sought in the second further amended application. Further, for the above reasons, the proceedings should be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 December 2019 and the parties were provided sealed copies of the Court’s orders
Associate:
Date: 5 March 2020
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