MICMSMA v CBW20

Case [2021] FCAFC 63

FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63

File number: NSD 1004 of 2020
Judgment of: PERRAM, MOSHINSKY AND THAWLEY JJ
Date of judgment: 4 May 2021
Catchwords: MIGRATION – protection visa – where the first respondent entered Australia by boat and was taken to what was then thought to be a “proclaimed port” – where the first respondent’s case was dealt with for several years on the assumption he was an “unauthorised maritime arrival” – where that assumption was incorrect – where, purportedly pursuant to s 195A of the Migration Act 1958 (Cth), the Minister granted the first respondent a temporary safe haven visa (for one week) and a bridging visa (for 12 months) – whether the grant of the temporary safe haven visa was valid – whether the first respondent’s application for a safe haven enterprise visa was valid – whether the Tribunal fell into jurisdictional error
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth), ss 5, 5AA, 36, 37A, 46, 46A, 65, 91J, 91K, 91L, 189, 195A, 412, 415

Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth)

Cases cited:

Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386

Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651

Brock v Minister for Home Affairs [2010] FCA 1301

DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447

Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1

Hala v Minister for Justice [2014] FCA 457

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365

Oates v Attorney-General (2001) 181 ALR 559

O’Donoghue v O’Connor (No 2) (2011) 283 ALR 682

Plaintiff M61/2010E v Commonwealth (Offshore Processing Case) (2010) 243 CLR 319

Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57

Vasiljkovic v O’Connor (2010) 276 ALR 326

Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22

Zentai v O’Connor (No 3) (2010) 187 FCR 495
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 64
Date of hearing: 8 February 2021
Counsel for the Applicant: Mr S Lloyd SC with Mr BD Kaplan
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the First Respondent: Mr J King
Solicitor for the First Respondent: Legal Aid NSW
Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs
Counsel for the Intervener: Mr C Lenehan SC with Ms K Pham
Solicitor for the Intervener: Australian Human Rights Commission

ORDERS

NSD 1004 of 2020
BETWEEN:

MINISTER…

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AGLC
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63
Case
[2021] FCAFC 63
Decision Date

CaseChat Overview and Summary

The case MICMSMA v CBW20 involved the applicant, CBW20, who entered Australia by boat and was taken to a location that was believed to be a proclaimed port. For several years, it was assumed that CBW20 was an "unauthorised maritime arrival," and his case was processed accordingly. However, it was later determined that this assumption was incorrect. The Minister purported to grant CBW20 a temporary safe haven visa for one week and a bridging visa for 12 months under section 195A of the Migration Act 1958 (Cth). The legal issues before the court were whether the grant of the temporary safe haven visa was valid and whether CBW20's application for a safe haven enterprise visa was valid. Additionally, the court had to determine if the Tribunal fell into any jurisdictional error.

The court found that the Tribunal was correct in concluding that the grant of the temporary safe haven visa was invalid, and therefore, CBW20's application for a safe haven enterprise visa was valid. The court held that the Minister's decision to grant the temporary safe haven visa was based on a mistaken understanding of the law, and this error was fundamental to the decision. The court also noted that the Minister would not have granted the visa if he had not believed that CBW20 was an unauthorised maritime arrival. As a result, the application was dismissed. The court ordered that the applicant pay the first respondent's costs of the proceeding, to be fixed by way of a lump sum, and that there be no order as to costs in relation to the costs of the intervener. If any party or the intervener wishes to seek a different costs order, they may file and serve a written submission within seven days, and the issue of costs will be determined on the papers.

Orders

Orders of the court

1. The application be dismissed.

2. Subject to paragraph 3:

(a) the applicant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum; and

(b) there be no order as to costs in relation to the costs of the intervener.

3. If any party or the intervener wishes to seek a different costs order, they may file and serve a written submission (of no more than two pages) within seven days. In that event, a responding submission (of no more than two pages) may be filed within a further seven days, and the issue of costs will be determined on the papers.

THE COURT DIRECTS THAT:

4. Subject to paragraph 3 above, within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

5. In the absence of any agreement:

(a) within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b) within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

Background

Background to the litigation

For the reasons that follow, in our view the Tribunal was correct to conclude that the grant of the Temporary Safe Haven visa was invalid and, consequently, CBW20’s application for a SHEV was valid. It follows that the application is to be dismissed.Background On 14 April 2013, CBW20 entered Australia by boat. He was taken to what was thought to be a “proclaimed port” in the Territory of Ashmore and Cartier Islands. At that time, CBW20 was thought to be an “offshore entry person” (as defined in s 5(1) of the Migration Act). The expression “offshore entry person” was then defined as follows:offshore entry person means a person who:(a)has, at any time, entered Australia at an excised offshore place after the excision time for that offshore place; and(b)became an unlawful non-citizen because of that entry. With effect from 1 June 2013, the expression “offshore entry person” was replaced with the expression “unauthorised maritime arrival” by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth). The latter expression was relevantly defined in the Migration Act as follows:5AA Meaning of unauthorised maritime arrival(1) For the purposes of this Act, a person is an unauthorised maritime arrival if:(a) the person entered Australia by sea:(i)at an excised offshore place at any time after the excision time for that place; or(ii)at any other place at any time on or after the commencement of this section; and(b) the person became an unlawful non-citizen because of that entry; and(c) the person is not an excluded maritime arrival.Entered Australia by sea(2) A person entered Australia by sea if:(a)the person entered the migration zone except on an aircraft that landed in the migration zone; or(b)the person entered the migration zone as a result of being found on a ship detained under section 245F and being dealt with under paragraph 245F(9)(a); or(c)the person entered the migration zone after being rescued at sea. For several years following the introduction of that definition, CBW20 was thought to be an “unauthorised maritime arrival”. On 10 October 2014, the Department of Immigration and Border Protection prepared a submission to the Minister (the October 2014 Submission) recommending that he exercise the power in s 195A of the Migration Act in relation to a cohort of persons in immigration detention (including CBW20), by granting them a Temporary Safe Haven visa (for one week) and a bridging visa (for 12 months). Before describing the submission in detail, we set out the key relevant provisions. Section 37A of the Migration Act dealt with temporary safe haven visas. It provided in part as follows:37A Temporary safe haven visas(1)There is a class of temporary visas to travel to, enter and remain in Australia, to be known as temporary safe haven visas.Note: A temporary safe haven visa is granted to a person to give the person temporary safe haven in Australia.(2)The Minister may, by notice in the Gazette, extend the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice.(3)The Minister may, by notice in the Gazette, shorten the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice if, in the Minister’s opinion, temporary safe haven in Australia is no longer necessary for the holder of the visa because of changes of a fundamental, durable and stable nature in the country concerned.…(5)If a notice under subsection (2) or (3) is published in the Gazette and has not been revoked, then the visa ceases to be in effect on the day specified in the notice, despite any other provision of this Act.(6)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.(7)In this section:country concerned means the country or countries in which the circumstances exist that give rise to the grant of temporary safe haven visas.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Following the judgment in DBB16, on 25 March 2019 the Department re-notified CBW20 of the delegate’s decision to refuse the application for a SHEV. CBW20 then applied to the Tribunal for review of the delegate’s decision.The Tribunal decision On 8 April 2020, the Tribunal decided to remit the matter for reconsideration with the direction that CBW20 satisfies s 36(2)(a) of the Migration Act. The Tribunal provided a statement of decision and reasons (the Tribunal’s reasons). The Tribunal set out the background to the application for review at [10]-[27] of its reasons. The Tribunal dealt with the issue of the validity of CBW20’s application for a SHEV at [28]-[77], concluding that the application for the SHEV was valid. Having so concluded, the Tribunal then went on to conduct a merits review of CBW20’s application (at [78]-[144]). For present purposes it is sufficient to focus on [10]-[77] of the Tribunal’s reasons. The Tribunal set out the background to the application for review, referring at [24] to the judgment of the Full Court in DBB16. The Tribunal noted that, in light of that decision, CBW20 was not an “unauthorised maritime arrival” within the meaning of the Migration Act. The Tribunal referred at [28] to s 91K, which prevented non-citizens who hold a Temporary Safe Haven visa, or have not left Australia since ceasing to hold a Temporary Safe Haven visa, from making a valid application for a visa (other than another Temporary Safe Haven visa). The Tribunal noted at [29] that CBW20 had been granted a Temporary Safe Haven visa for one week in 2014. Later in its reasons, at [39], the Tribunal stated that CBW20 had not departed Australia since the expiration of the Temporary Safe Haven visa. These matters gave rise to an issue as to the validity of CBW20’s application for a SHEV. The Tribunal noted at [30] that it had sought submissions from CBW20 in relation to that issue. At [31(b)], the Tribunal recorded CBW20’s submission that he had never held a valid Temporary Safe Haven visa because at the time the Minister exercised his power under s 195A (to grant the Temporary Safe Haven visa) he was under a mistaken belief that CBW20 was an unauthorised maritime arrival. The Tribunal noted at [32] that it had sought submissions from the Secretary of the Department on the application of s 91K in this matter, the validity of the grant of the Temporary Safe Haven visa, and certain other issues (as set out in the Tribunal’s reasons). The Secretary of the Department’s submission in response to that invitation is set out in [35] of the Tribunal’s reasons. The Secretary submitted, among other things, that, although the submission which resulted in the grant of the Temporary Safe Haven visa to CBW20 was based on the mistaken belief that CBW20 was an unauthorised maritime arrival, the validity of that visa grant was unaffected by CBW20 not in fact being an unauthorised maritime arrival. The Secretary submitted that: there is nothing in s 37A of the Migration Act which limits the grant of a Temporary Safe Haven visa to a person who is an unauthorised maritime arrival; nor is there anything in the criteria for the grant of a Temporary Safe Haven visa (as set out in the regulations) that requires a person to be an unauthorised maritime arrival to be eligible for the grant of the visa. The Secretary accepted that it was open to the Tribunal to consider whether the grant of the Temporary Safe Haven visa to CBW20 was valid for the limited purpose of assessing the validity of his application for a SHEV. (The Minister adopts the same position in the present proceeding; that is, the Minister accepts that it was open to the Tribunal to determine whether the grant of the Temporary Safe Haven visa was valid so as to determine the validity of the application for a SHEV.)

Ratio Decidendi

Legal Principle Established

Further, in relation to s 195A itself, in Plaintiff M61/2010E v Commonwealth (Offshore Processing Case) (2010) 243 CLR 319, the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) stated at [78]:The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant’s liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice”. Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.(Footnote omitted; emphasis added.) In the present case, the Minister’s view that it was in the public interest to grant the Temporary Safe Haven visa proceeded on the basis of an incorrect understanding of the law (as described at [51]-[52] above). Those legal errors were fundamental to the Minister’s decision. The October 2014 Submission was specifically directed to persons who were believed to be unauthorised maritime arrivals (albeit referred to as Illegal Maritime Arrivals or IMAs). The submission recommended that the Minister exercise the power in s 195A to grant them Temporary Safe Haven visas (and bridging visas) in a context where, it was assumed, they were not entitled to make a valid application for a visa while in detention (see paragraph 14 of the submission). In that (assumed) context, the combined effect of the grant of the Temporary Safe Haven visa and the bridging visa would be that the persons covered by the submission could be released from detention and access Medicare and financial support, while maintaining the (assumed) position that they were subject to a bar on making a valid application for a visa. It is evident, and was conceded by the Minister (T15), that the Minister would not have granted the Temporary Safe Haven visa had he not thought that CBW20 was an unauthorised maritime arrival. The assumption that CBW20 was an unauthorised maritime arrival underpinned the formation of the view regarding the public interest. Further, as noted above, the Minister may be taken to have assumed that CBW20 was already subject to a bar on making a valid application for a visa (namely, the bar in s 46A) and that the effect of a decision to grant a Temporary Safe Haven visa would be to substitute one bar (that in s 91K) for another. However, in truth CBW20 was not subject to any bar, and the effect of the decision was to subject CBW20 to a bar when none previously applied to him.