RJFB v Minister for Immigration and Multicultural Affairs
[2025] FCA 229
•20 March 2025
FEDERAL COURT OF AUSTRALIA
RJFB v Minister for Immigration and Multicultural Affairs [2025] FCA 229
File number(s): QUD 502 of 2023 Judgment of: SARAH C DERRINGTON J Date of judgment: 20 March 2025 Catchwords: MIGRATION – application for judicial review – where Minister exercised the power under s 501A(2) of the Migration Act 1958 (Cth) to set aside the earlier decision of the Administrative Appeals Tribunal and to refuse the grant of a protection visa on national interest grounds – whether decision affected by jurisdictional error – whether Minister understood the law at that time to mean that a visa refusal decision would result in indefinite detention of applicant per Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 – whether Minister acted on an incorrect understanding of the law in view of the High Court decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 – where Minister conceded error occurred – where error material in accordance with Full Federal Court decision in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586 – whether Court should nevertheless exercise its discretion not to issue constitutional writs – application allowed Legislation: Migration Act 1958 (Cth) ss 36(1C), 36(2)(a), 189, 196, 197C, 501(1), 501(3A), 501(6)(a), 501(7)(c), 501A(2), 501CA(4) Cases cited: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82
RJFB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1284
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 17 Date of hearing: 18 March 2025 Solicitor for the Applicant: Mr J McComber of Sentry Law Counsel for the Respondent: Mr B McGlade Solicitor for the Respondent: Sparke Helmore ORDERS
QUD 502 of 2023 BETWEEN: RJFB
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
SARAH C DERRINGTON J
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.A writ of certiorari issue quashing the respondent’s decision dated 4 October 2023.
3.A writ of mandamus issue directing the respondent to determine whether to exercise the power conferred by s 501A(2) of the Migration Act 1958 (Cth) in favour of the applicant.
4.The respondent pay the applicant’s costs of the proceedings, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SARAH C DERRINGTON J
On 4 October 2023, the Minister for Immigration, Citizenship and Multicultural Affairs decided to exercise the power under section 501A(2) of the Migration Act 1958 (Cth) to set aside an earlier decision of the then-Administrative Appeals Tribunal, thereby refusing the applicant a Protection (subclass 866) visa. The applicant has applied for judicial review of that decision.
For the reasons that follow, the application must be allowed.
History of the proceeding
The applicant’s personal history is detailed in his statement to the Tribunal dated 4 December 2020. For present purposes, it suffices to note that the applicant is a citizen of Afghanistan who relocated to Australia with his family in March 2014, after his mother was granted a Woman-at-Risk (subclass 204) visa in November 2013. The applicant and his three siblings were granted the same visa as her dependents. On 1 December 2017, the applicant was convicted of two offences of rape occurring on 7 March 2015, and on 7 December 2018 he was sentenced to six years’ imprisonment in respect of each conviction. The sentence was, however, later reduced to two years after the sentencing court found that the applicant had incorrectly been sentenced as an adult, despite being 16 years of age at the time of the offending.
There is also a substantial procedural history concerning the applicant’s visa status. On 12 March 2019, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act, as the sentence (exceeding a period of 12 months) had the consequence that he failed the “character test” under ss 501(6)(a) and (7)(c) of the Migration Act. The applicant requested revocation of that cancellation pursuant to s 501CA(4) of the Migration Act on 21 March 2019, but revocation was refused by a delegate of the Minister in a decision dated 14 October 2020. The applicant applied to the Tribunal for merits review of the non-revocation decision, but by decision dated 7 January 2021, the Tribunal affirmed the delegate’s decision. The applicant then applied to the Federal Court for judicial review of the Tribunal’s decision. On 22 October 2021, that application was dismissed (RJFB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1284).
In the intervening period following the non-revocation decision, the applicant, on 12 November 2020, lodged an application for a Protection (subclass 866) visa. The Department found on 25 June 2021 that the applicant was a “refugee” for the purposes of ss 36(2)(a) and 36(1C) of the Migration Act, and consequently the delegate recorded a “protection finding”, which had the consequence of engaging s 197C of the Migration Act such that the applicant could not be removed to Afghanistan. On 19 May 2022, a delegate of the Minister nevertheless refused the applicant’s visa application on character grounds pursuant to s 501(1) of the Migration Act.
The applicant applied to the Tribunal for merits review of the delegate’s decision. On 10 August 2022, the Tribunal set aside that decision and substituted a decision that the visa application is not refused under s 501(1).
Subsequently, by notice dated 27 January 2023, the Minister notified the applicant of his intention to consider exercising the power conferred by s 501A(2) of the Migration Act to set aside the Tribunal’s decision and refuse the visa application on the ground that it is in the national interest to do so. On 4 October 2023, the Minister exercised that power, set aside the Tribunal’s decision, and refused the applicant a protection visa. It is that decision of the Minister which is now before this Court for judicial review.
Grounds of Review
By his Amended Originating Application filed on 22 August 2024, the applicant seeks a writ of certiorari quashing the Minister’s decision and a writ of mandamus directing the Minister to determine whether to exercise the power under s 501A(2) in accordance with law, on three grounds:
1.The Respondent’s decision dated 4 October 2023 is affected by jurisdictional error as the Respondent failed to squarely and honestly confront the human consequences of the exercise of the refusal power conferred by s 501A(2) of the Act.
2.The Respondent’s decision dated 4 October 2023 is affected by jurisdictional error as the Respondent failed to properly consider relevant material, being the video recording of the assault of the Applicant in immigration detention occurring on about 12 March 2023.
3.The Respondent’s decision dated 4 October 2023 is affected by jurisdictional error as the Respondent misapprehended the legal consequences of their decision.
At the hearing before this Court, and as was foreshadowed in written submissions, the applicant pressed only the third ground. The gravamen of this ground is that the respondent, in making his decision, proceeded on the belief that in accordance with the law as then understood (i.e. in accordance with Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562), the applicant faced the prospect of indefinite detention, when as the High Court subsequently made clear in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 at [70], ss 189 and 196 of the Migration Act did not authorise the continuing detention of unlawful non-citizens where there was no real prospect of their removal becoming practicable in the reasonably foreseeable future.
The Minister accepted that his decision proceeded on an incorrect understanding of the law. In his written submissions, the Minister sought to argue that such an error was not a jurisdictional error having regard to both the nature of the error and on the premise that it was not material. In oral submissions, Counsel for the Minister quite properly conceded that neither basis for asserting that the error was not jurisdictional was open, given the decision of the Full Court in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586, which is essentially on all fours with the present case and so by which I am bound. The Minister did not apply for special leave to appeal to the High Court from that decision, nor did he submit that the decision was plainly wrong.
In AJN23, the Full Court held, at [43], that where the Minister’s reasons proceeded on an erroneous understanding of the law, “his decision was made outside the jurisdiction conferred on him by s 501A(2), provided that the error was material”. As to materiality, in response to submissions that the decision could not realistically have been any different even absent the error given first, that the error was in the appellant’s favour and secondly, that the Minister was clearly concerned to keep the appellant out of the community so that there was no realistic possibility that the Minister would have granted a visa, the Full Court said, at [51]:
Once an important underpinning of the decision in relation to several elements is fundamentally altered, it is simply not possible to have confidence in what the outcome would have been; it cannot “be affirmatively concluded that the outcome would inevitably have been the same had the error not been made” [citing LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [16]].
Having made the appropriate concession as to the consequence of AJN23, the Minister nevertheless urged that I should exercise my discretion not to grant the constitutional writs sought by the applicant. Four reasons were advanced in support of that submission.
First, that the applicant’s case before the Minister was founded on the premise that Al-Kateb correctly represented the law and that the Minister should apply such law in making his decision. Secondly, that Al-Kateb being re-opened and overruled by the High Court in NZYQ was “unknown, and unknowable, to the Minister” at the time of making his decision (using the words of the Full Court in AJN23 at [30]). Thirdly, that the applicant’s position is unjust and inconsistent, in the sense that he was able to procure a favourable s 501(1) decision from the Tribunal on the very basis that he now contends the Minister was in error to accept. Fourthly, that accepting the applicant’s position may prejudice a third party, namely the Tribunal, as it would mean that the Tribunal’s decision might be liable to be set aside for jurisdictional error.
The Minister relied on the decision of the High Court in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 for the proposition that the grant of a constitutional writ is discretionary. So much may be accepted. However, the guidance for the exercise of that discretion, to which the Minister also drew attention, does not assist him in this case. Gaudron and Gummow JJ in that case observed the following:
[56] Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:
“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.”
[57]When dealing apparently with certiorari and declarations, Lord Denning MR in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry said:
“He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing. If his conduct has been disgraceful and he has in fact suffered no injustice, he may be refused relief.”
(citations omitted.)
It would be an extraordinary proposition to exercise the Court’s discretion against an applicant in circumstances where he has, at all times, conducted himself in accordance with an understanding of the law as it stood from 2004 until 28 November 2023, approximately eight weeks after the Minister’s decision in this case. There is no doubt, as the Minister submits, that the applicant procured a favourable s 501(1) decision on the basis of a legal argument that he now contends the Tribunal was in error to accept, whilst at the same time, seeking to utilise that very same error to impugn the Minister’s s 501A(2) decision. But that is not a consequence of a change of position over which the applicant, or indeed the Minister, had any control. The law has been clarified by the High Court. The law that must be applied is different from that which governed the conduct of the applicant and the Minister in relation to the Minister’s consideration of whether to grant the applicant a visa up until 28 November 2023.
Further, I am not persuaded that there is merit to the Minister’s submission that I should exercise my discretion to refuse the relief sought because the Tribunal’s decision might be liable to be set aside for jurisdictional error. That decision was also premised on the, as now understood, incorrect view of the law. There can be no prejudice to the Tribunal.
Disposition
For these reasons, the applicant is entitled to succeed on his application and to be granted the relief sought. It is also appropriate that the Minister pay the applicant’s costs, particularly given the inevitability of the concession that had to be made in relation to AJN23.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington. Associate:
Dated: 20 March 2025
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