FEDERAL COURT OF AUSTRALIA

SZQBN v Minister for Immigration & Citizenship [2013] FCAFC 94

THE COURT ORDERS THAT:

1.    The appeal be allowed with costs.

2.    The orders made by the Federal Magistrates Court on 2 June 2011 be set aside and in lieu thereof it be ordered that:

   (a)    The Court declares that the decision of the respondent’s delegate to cancel the appellant’s subclass TR 676 visa on 27 January 2011 (the decision) was not valid.

   (b)    A writ of prohibition issue prohibiting the respondent from acting upon or giving effect to the decision.

   (c)    A writ of certiorari issue quashing the decision.

3.    The respondent pay the costs of the appeal and the proceedings in the Federal Magistrates Court.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    On 27 January 2011 a delegate of the Minister, purporting to act under s 116(1)(g) of the Migration Act 1958 (Cth) (the Act) and reg 2.43(1) of the Migration Regulations 1994 (Cth) (the Regulations), made a decision to cancel the appellant’s tourist visa, notwithstanding that the visa was expressed to be in force for a further seven months, until 19 August 2011.

2    The effect of the abovementioned provisions of the Act and the Regulations was, relevantly, that the Minister had power to cancel the visa if the Minister was satisfied that the visa holder did not have, at the time of grant of the visa, or had ceased to have:

an intention only to visit, or remain in, Australia as a visitor temporarily … .

3    The delegate’s decision was made following a lengthy interview conducted at Sydney airport by departmental officials when the appellant returned to Australia from a short visit to Fiji. After being notified of the decision to cancel his tourist visa, the appellant sought a protection visa.

4    The delegate who made the decision to cancel the tourist visa was not satisfied that the appellant was a genuine visitor and that he intended to visit Australia temporarily.

5    The delegate’s reasons for her decision included a statement that, whilst the appellant claimed that he had an incentive to return to China, he then refuted that claim by stating that he did not wish to return to China because he believed he may be treated unjustly.

6    The appellant sought judicial review of the decision in the Federal Magistrates Court (as the Federal Circuit Court was then known) under s 476 of the Act. He sought final relief including a writ of certiorari quashing the decision of the delegate and a writ of prohibition prohibiting the Minister from giving effect to the decision.

7    At the hearing before the Federal Magistrate, the Minister conceded jurisdictional error in the delegate’s decision in relation to one issue. The error which was conceded was that the delegate had failed to give the appellant particulars of relevant information which she was required to give under s 120 of the Act. The information was that the delegate had received from the Department details of an allegation that the appellant intended to apply for protection in Australia using fraudulent documents.

8    Nevertheless, the Minister resisted the grant of relief. The Minister contended that, in the exercise of the Court’s discretion, relief should be refused because the appellant had acted in bad faith and had come to the Court with “unclean hands”.

9    The appellant’s “unclean hands” were said by the Minister to be that he misled the Department by claiming that he was a genuine visitor to Australia whereas in fact he intended to remain here permanently.

10    The Federal Magistrate was of the view that High Court authority established that the Court may refuse relief in the exercise of its discretion if the Minister established that there was bad faith on the appellant’s part. Whilst he did not say so expressly, his Honour apparently proceeded on the basis that it was sufficient for the Minister to establish bad faith by the appellant in relation to the administrative process under which the tourist visa was cancelled.

11    The effect of his Honour’s finding on the question of bad faith was that the appellant had been untruthful in telling the delegate that he intended to go back to China because life was better there whereas in truth he did not intend to return to China because he feared persecution there.

12    His Honour considered that this amounted to bad faith which permitted him in the exercise of his discretion to refuse relief. He decided in those circumstances that it was appropriate to refuse the grant of relief. He therefore dismissed the application.

13    The essential issue which arises in the appeal is whether there was a sufficient connection between the bad faith found by the Federal Magistrate and the relief sought by the appellant to justify the exercise of discretion to withhold the grant of an order in the nature of certiorari or prohibition.

14    The answer to this question turns largely upon the proper application of the principles stated in a number of authorities, including in particular the statements of principle of Gaudron and Gummow JJ in Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [51]ff.

The relevant statutory provisions

15    Section 116(1) of the Act provides that:

Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(g)    a prescribed ground for cancelling a visa applies to the holder.

Subsections 116(2) and (3) are not relevant to this case.

16    The prescribed grounds for the purposes of s 116(1)(g) of the Act are set out in reg 2.43(1). A large number of grounds are stated in paras (a) to (o) of that regulation. The relevant ground in the present case is stated in para (j) of reg 2.43(1) which applies to various classes of tourist visa including the multiple entry tourist visa held by the appellant.

17    Regulation 2.43(1)(j) specifies the prescribed ground for cancellation of a tourist visa as follows:

… that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a visitor temporarily for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the visa holder or for another purpose, other than a purpose related to business or medical treatment.

The background facts

18    The relevant background facts may be stated briefly. They are sufficiently set out in [3]-[6] of the Federal Magistrate’s decision but we will set them out below.

19    The appellant arrived in Australia in October 2010 on a tourist visa which had been granted to him several months earlier. The visa was a subclass TR 676 visa which allowed for multiple entries up until 19 August 2011, for a period of three months at each entry.

20    Within three months of his initial entry, on 24 January 2011, the appellant departed Australia for Fiji. He returned to Australia three days later on 27 January 2011 but, upon entry, he was referred to officers of the Department of Immigration and Citizenship who conducted an interview with him.

21    After approximately eight hours in detention at the airport the appellant was issued with a notice of intention to consider cancellation of his visa. The notice was accompanied by an attachment which appears to have been prepared by the delegate who ultimately made the decision to cancel the visa.

22    The appellant was then interviewed again by the delegate before she made her decision. After the delegate made the decision to cancel to visa the appellant stated that he sought protection in Australia. This appears to be an indication by him that he wished to apply for a protection visa. By that time the appellant had been detained in the airport for over 11 hours.

23    The officers of the Department continued to interview the appellant about his claim for protection. He appears to have been detained at the airport for a total of about 12 hours.

The delegate’s reasons

24    The delegate issued a short statement of her reasons for cancelling the appellant’s visa. She stated that, in making her decision she had fully considered the appellant’s responses to questions at the interview.

25    The reasons commence with a statement by the delegate that she considered that the appellant had given incorrect information in his initial visa application about his marital status.

26    This was a reference to the fact that in his visa application, the appellant stated that he was currently married and that his wife and daughter remained in China. However, at the interview he admitted that he was separated from his wife and was engaged in divorce proceedings as well as a custody dispute concerning his daughter.

27    The delegate went on to say that, in addition to the incorrect information about his marital status, the appellant provided incorrect information at the interview by denying knowledge of a blog that he had kept about his efforts to locate his daughter in China.

28    The critical part of the delegate’s reasons was set out in the third paragraph as follows:

I have also taken into consideration your claim that you have incentive to return to China – work, your child and friends. However whilst you make this claim, you then go on to refute this claim in your response by stating that you do not wish to return to China as you believe you may be treated unjustly. You believe this will occur due to both your ongoing divorce proceedings with your wife and your custody dispute regarding your daughter. You admit that it is your intention to remain in Australia until you feel safe and the divorce proceedings are finalised which you state could take a few months or a few years.

29    The delegate continued by stating that in weighing up the grounds for cancellation and the appellant’s responses to questions, as well as the evidence available:

… I am not satisfied you are a genuine visitor and that you intend to visit Australia temporarily.

The Federal Magistrate’s reasons

30    His Honour recorded at [9] of his reasons the Minister’s concession of jurisdictional error in relation to the failure of the delegate to provide particulars of the adverse information received from the Department.

31    He then turned to the question of whether it was open to him to refuse relief on the ground that the appellant had acted in bad faith. He considered that Aala, and earlier High Court authorities, established the proposition that transactional bad faith on the part of an applicant may attract the exercise of discretion adverse to the issue of a writ of certiorari or prohibition.

32    His Honour went on to set out the submissions made by the Minister and the appellant on this issue. He recorded the Minister’s submissions at [53] that the appellant had exhibited bad faith in relation to the administrative process involving his obtaining a visa to travel to Australia in his intentions, both stated and unstated, in seeking to enter Australia, including at the airport interview on 27 January 2011.

33    The effect of the submission made on behalf of the Minister was set out in [54] and [55] of the reasons. It was that there was a “tension” between the appellant’s claim in his protection visa application that he feared persecution if he were to return to China and his failure to mention this at the airport interview. This was said to have been confirmed in his evidence before the Court.

34    The Minister’s submission was summarised by the Federal Magistrate at [58] as follows:

In short, the Minister’s position is that the applicant claimed to be a genuine visitor to Australia, that is, that he intended to visit his mother and then return to China, at a time when there were a range of factors known to him, and which he subsequently put forward in his protection visa application, from which it could be seen and inferred that he misled the Minister’s department. That is, that his intention was not to come and stay in Australia for the purposes of a visit, but to remain for a longer period than that allowed for in the visa, or even permanently, because he feared persecution in China.

35    The appellant’s submission on the factual question in the proceeding at first instance was summarised at [74]. It was that when he applied for the visa he intended to come to Australia to visit his mother and sister and that the “issues in the background” only emerged during his interview with the delegate. It was then that he developed a genuine fear of returning to China.

36    The Federal Magistrate’s consideration of the factual question is lengthy. It culminates with his conclusion at [145] that the appellant acted in bad faith before the Minister’s department and, that in the circumstances, it was appropriate that he:

… not be granted the relief which he may otherwise have been able to obtain.

37    What underlies this finding is his Honour’s acceptance of the Minister’s submission that the appellant did not satisfactorily explain why, if he feared persecution in the event that he returned to China, he did not apply for a protection visa before the conclusion of the airport interview on 27 January 2011.

38    The critical paragraphs in his Honour’s reasoning process appear to be [120] to [127] which we reproduce as follows:

120.    In my view Ms Tong, the applicant’s migration agent, provides the clear and plausible explanation for what has occurred. Any plain reading of the evidence offered by her, and indeed when viewed also in the context of that part of her evidence relied on by Mr Johnson, supports the finding that the applicant did demonstrate bad faith in the way that he dealt with the Minister’s department. It puts those parts of the transcript of the airport interview, and the matters the Minister now relies upon, in a different light.

121.    Elsewhere in the evidence it is clear (see also further below) that at the time of the interview, and certainly at its commencement, there were certain events (at its core the missing three million dollars, the arrest warrant and related events, the matter of the applicant’s daughter and the applicant’s relationship with his former wife and the police) that would cause him not to want to return to China.

122.    Whether the applicant had “genuine” claims to protection or not is not an issue that the Court should, or could, concern itself with. To do so would be to cross over the line into the merits review that Mr Reynolds forcefully and repeatedly cautioned the Court not to do.

123.    This part of Ms Tong’s evidence, however, illustrates what was not addressed by the applicant’s submissions. That is, that there is a distinction between determining whether the applicant was a genuine visitor or not (a task rightly left to the Minister given the provisions of the Migration Act), or indeed whether he was “genuine” in subsequently making a protection visa application, and whether he lied, either directly or by omission, or misrepresented the relevant situation, in the airport interview such that it can be said that he acted at that time, and up to that time, in bad faith towards the Minister and his officials.

124.    What Ms Tong plainly says is that the applicant only applied for a protection visa because his visitor visa was cancelled. He was forced into it because he did not want to return to China. This is plainly inconsistent with what he reportedly told the delegate.

125.    In the circumstances, and in light of the other evidence referred to above, that could only mean that he did not want to return because of the events surrounding the missing three million dollars, his family, the police etc. In this light, Ms Tong’s evidence explains that the applicant chose to use the facility of the visitor visa with multiple entries to avoid returning to China, but was “forced” into applying for the protection visa when this facility was no longer available to him.

126.    I can only understand her evidence (that the applicant would not have needed to apply for a protection visa had his visitor visa not been cancelled) as a plain and clear admission that while he was telling the delegate, for example, that he wanted to go back to China because life was better there, the real situation was that he did not want to go back and would not need to go back while his visitor visa with multiple entries was in force.

127.    Ms Tong herself, therefore, provides the basis to say that the applicant did not tell the truth to, or concealed aspects of the truth from, the delegate at the interview.

The exercise of discretion in the grant of prohibition

39    In Aala Gaudron and Gummow JJ said at [41] that if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness (and if that requirement is not extinguished by the statute) the officer exceeds jurisdiction in a sense necessary to attract the grant of prohibition under s 75(v) of the Constitution.

40    Their Honours proceeded at [43]ff to consider the question of whether prohibition is granted as of right under s 75(v) where an officer acts in want of, or in excess of, jurisdiction. The effect of their Honours’ analysis is that the writ will issue “almost as of right” but that the Court retains its discretion to refuse relief if that is the proper course in all the circumstances: see Aala at [51]-[52], citing Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194.

41    The circumstances to which their Honours referred at [53] did not include the element of bad faith. They said that the question is:

… whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances.

42    However, their Honours included bad faith in the list of discretionary factors by adopting a statement of principle derived from earlier authority which they said provided some guidance to the relevant circumstances: see at [56]. The earlier authority was a passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 (Ozone Theatres).

43    The circumstances to which the High Court referred in Ozone Theatres included:

… 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.

44    The passage from Aala in which Gaudron and Gummow JJ stated the guidance to be derived from Ozone Theatres was reiterated in a later High Court decision in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [28].

45    Ozone Theatres was a mandamus case but it is clear enough from what Gaudron and Gummow JJ said in Aala at [54] that the discretionary factors which are relevant to mandamus are also applicable to prohibition.

46    It follows in our view that, notwithstanding the different nature of prohibition, and the different test for standing in comparison to mandamus, it must be accepted that, in appropriate circumstances, bad faith by an applicant may be a discretionary bar to the grant of relief. The essential question which arises is, what are the appropriate circumstances?

47    The Ozone Theatres test indicates that bad faith by an applicant may be a bar if it is “transactional” or is exhibited in the applicant’s dealings with the court. The real difficulty is determining what constitutes transactional bad faith and the extent to which that is applicable to the remedy of prohibition.

48    The transactional test is more readily recognisable in the context of mandamus because that remedy is concerned with the failure of a public official to perform a duty owed to an individual. By contrast, prohibition is concerned with the exercise by such an official of administrative powers in want of, or in excess of, jurisdiction.

49    The “animating principle” will therefore be the statement made by Gaudron J in Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at [56], namely that those persons possessed of such powers should exercise them only in accordance with the laws which govern their exercise: see also Aala at [55].

50    A number of authorities of Full Courts of the Federal Court have dealt with cases where an applicant was complicit in a fraud perpetrated by an agent on a tribunal. Those cases are authority for the proposition that the courts will not allow a person to maintain an advantage obtained by the person’s own wrong: see SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170 at [12] per Branson J, at [87], [88] and [94] per Graham J; see also Minister for Immigration and Citizenship v Lu (2010) 189 FCR 525 at [43]-[44] per Ryan, Rares and Katzmann JJ.

51    Of course, that is a well known and long established principle. However, we do not consider that it should be regarded as an exhaustive statement of the principle which guides the exercise of discretion to withhold the grant of prohibition to an applicant on the ground of bad faith. To so do would seem to us to depart from the broader statements of principle referred to by the High Court in Aala and SZBYR.

52    Nevertheless, we think it is plain that the High Court’s adoption of the Ozone Theatres principle was not intended to permit a respondent who has acted otherwise than in accordance with law to rely upon every false statement made by an applicant in the course of an administrative process as evidence of bad faith.

53    In our opinion the correct approach is stated in two single judge decisions of this Court which endeavour to define with some precision the circumstances in which bad faith by an applicant may constitute a discretionary bar to the grant of constitutional remedies.

54    The first is the decision of Dodds-Streeton J in MZYSU v Minister for Immigration and Citizenship (2012) 132 ALD 341; [2012] FCA 1073. Her Honour said at [111] that the authorities contemplate that the exercise of the discretion to refuse relief for jurisdictional error due to bad faith or unclean hands is the exception, not the rule. It is not to be exercised routinely in every case which could be so characterised. Rather, bad faith which justifies the exercise of the discretion:

…is characteristically constituted by significant dishonesty on which an applicant relies to subvert the proper processes of, and secure an advantageous outcome in, the relevant transaction or court proceeding.

55    The second authority is the decision of Jessup J in Yu v Minister for Health [2013] FCA 261. His Honour pointed out at [52] that the reference in Ozone Theatres to “the transaction out of which the duty arose” was not a prescriptive rule in the form of legislation. Rather, it is a statement of principle by reference to which a discretion might be exercised in a particular way in an appropriate case. He went on to emphasise that in Ozone Theatres:

…their Honours clearly had in mind the quality of the connection between the nature of the duty and an applicant’s conduct in the facts out of which the duty arises.

56    This approach is consistent with that which has been accepted by the High Court in relation to misconduct disentitling a party to relief in a court of equity: see Meyers v Casey (1913) 17 CLR 90. That case is authority for the proposition that the defence of unclean hands is only available where the alleged misconduct has “an immediate and necessary relation to the equity sued for”. See per Isaacs J at 123-124.

57    Isaacs J went on to distinguish a case where no such relationship exists from cases where a court of equity is asked to protect a right brought into existence or induced by some illegal or unconscionable conduct of the plaintiff.

58    Notably, the relief that was sought in Meyers v Casey included an injunction to restrain the expulsion of a person from membership of a club on the ground of a denial of natural justice. The plaintiff was a horse owner who had been disqualified from membership of the Victoria Racing Club by the stewards for “suspicious practices” in relation to the running of his horse at a race meeting. The plaintiff appealed to a committee of the Club which heard fresh evidence to that which was given before the stewards.

59    The majority of the High Court held that an injunction should be granted because of a denial of natural justice. They also held that the plaintiff’s misconduct did not disentitle him to relief because the relief was independent of his misconduct and the question of his guilt or innocence in relation to the running of the horse was not in issue in the proceeding. That proposition was stated most clearly by Barton ACJ at 101-102.

60    Barton ACJ observed at 102 that it was not the correctness of the decision of the committee that was in issue, but its validity.

Consideration

61    The decision at first instance suffers from a failure on his Honour’s part to identify in one place in the reasons, and with precision, the finding of bad faith and its connection with the relief that was sought. What was required was, at very least, the particular statements or conduct that constituted bad faith, how it constituted bad faith or lack of clean hands and how it was acted upon: see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [41]; see also SZHLP at [36].

62    The difficulty may have been compounded by the fact that the Minister’s written response filed on 7 March 2011 in answer to the appellant’s application filed on 4 February 2011 failed to state with any particularity the discretionary bar of bad faith. All that was said was that the application should be dismissed in exercise of the Court’s discretion because:

… the applicant’s conduct in applying for a protection visa is inconsistent with the relief sought and demonstrates unclean hands.

63    It was said over 100 years ago in private law proceedings that fraud must be pleaded specifically and with particularity: see Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1989) 169 CLR 279 at 285. The same approach ought to apply in public law, both in the pleading, if there be one, and in the nature of the allegation that is made in the conduct of the proceeding.

64    Notwithstanding those critical procedural safeguards to the making of serious allegations and findings, it is difficult to discern the precise effect of what was put on behalf of the Minister as to the allegation of bad faith. It is equally difficult to ascertain the finding and the transactional connection.

65    Ultimately, the effect of what was submitted on the Minister’s behalf in the appeal was that the appellant’s bad faith consisted of lies which he had told to the delegate about his intention to return to China when his mother recovered from her illness, whereas in truth he intended to remain here permanently.

66    The true position was said to have been revealed from the appellant’s application for a protection visa which he made after the delegate informed him that his tourist visa had been cancelled. The later conduct, that is to say, the application for protection, was apparently said to give rise to an inference that the appellant’s earlier answers to the delegate were untruthful and were designed to perpetrate a fraud on the decision-maker.

67    That was said on behalf of the Minister to be supported by the finding made at first instance about the evidence of Ms Tong. We have set out the relevant findings above, in particular [123]-[126] from the judgment at first instance.

68    However, it seems to us, with respect, that this approach fails to grapple with the need to demonstrate the necessary transactional connection between the appellant’s untruths and the relief which he claimed in the proceeding in the Federal Magistrates Court.

69    It was not sufficient to point to the entirety of the record of the appellant’s interview with the delegate, or the officers of the Department during the airport interview, as constituting the transaction. The authorities to which we have referred suggest that what was required was a sufficient connection between the untruths told by the appellant during the interview and the relief to which he would otherwise have been entitled as a result of the admitted jurisdictional error.

70    The most useful statement of the applicable principle to the facts of the present case may be found in the remarks of Barton ACJ in Meyers v Casey at 101-102. The effect of what his Honour said, as it applies to the present case is that it was not the correctness of the decision of the delegate that was in issue, but its validity.

71    The delegate addressed the correct question. She was required to reach a state of satisfaction under reg 2.43(1)(j) as to whether the visa holder did not have, at the time of the grant of the visa, or had ceased to have, an intention to remain in Australia as a visitor temporarily.

72    The delegate answered that question adversely to the appellant by finding that although he said he had an incentive to return to China, he refuted that claim by stating that he did not wish to return as he believed he may be treated unjustly.

73    Thus, it was implicit in the delegate’s decision that she did not accept as truthful the statements made by the appellant as to his intentions to remain here as a visitor temporarily.

74    There was no immediate or necessary connection between the untruths which the delegate found to have been made and the failure of the delegate to exercise her jurisdiction in accordance with law by giving the appellant particulars of the adverse information as required by s 120 of the Act.

75    The appellant’s claim for judicial review in the Federal Magistrates Court was not based upon a challenge to the merits of the delegate’s finding. The correctness of the finding could not be put in issue in a claim for judicial review. As in Meyers v Casey, evidence of the “turpitude or integrity” of the appellant’s conduct was not the issue. Yet the Federal Magistrate conducted a hearing in which the Minister sought to obtain factual findings from his Honour as to the correctness of the underlying findings of untruthfulness which had been made by the delegate.

76    In our opinion that course was contrary to the basic principle that judicial review proceedings are distinct from merits review. It is akin to the approach against which Lander J warned in Zhong v Minister for Immigration and Citizenship (2008) 171 FCR 444 at [88].

77    The effect of what Lander J said in that case, as applied here, is that the Minister’s submission, both at first instance and on appeal, puts the Court in a position where it must form a judgment about the appellant’s conduct in his interview with the delegate. The refusal of the Federal Magistrate to issue a constitutional writ was tantamount to a finding that the delegate was correct in deciding to cancel the visa.

78    It would have been open to the Minister to contend in the proceeding below that the denial of procedural fairness constituted by the failure to comply with s 120 of the Act would have made no difference: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; see also Aala at [57]-[58]. However, the Minister did not do so either at first instance or on appeal.

79    Instead, the Minister sought to focus on what was said to be transactional conduct prior to the making of the decision by the delegate to cancel the visa. The Federal Magistrate’s finding of fact that the appellant did not have an intention to remain here temporarily was then said to constitute deceit in his dealings with the delegate so as to permit the Federal Magistrate, in the exercise of his discretion, to refuse to issue a constitutional writ.

80    For the reasons stated above, we cannot accept that submission.

Orders and relief

81    For reasons set out above, the discretion exercised by the Federal Magistrate miscarried. Accordingly, the appeal should be allowed and orders 2 and 3 made on 2 June 2011 should be set aside.

82    The relief claimed in the Application and the Amended Application was a declaration that the appellant’s subclass TR 676 visa was not validly cancelled, a writ of certiorari quashing the decision of the delegate to cancel the visa and prohibition to prohibit the Minister from acting upon or giving effect to the decision.

83    Although the visa expired in August 2011 there is utility in the grant of a declaration. The appellant may at some future time seek to re-enter Australia or to enter another country. He had a real interest in raising the issue upon which the declaration should be founded: Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at [103].

84    Similarly, the constitutional writ of prohibition should be ordered in the terms sought and certiorari, quashing the decision should be ordered as ancillary to the grant of constitutional relief.

85    The Minister should also be ordered to pay the costs of the proceeding before the Federal Magistrate and the costs of the appeal.

Associate:

Dated:    20 August 2013