FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Aciek [2018] FCAFC 120

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is permanently stayed.

2.    There is no order as to costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    The Appellant in the present proceeding is the Minister for Home Affairs. The Respondent, who is a citizen of South Sudan, is Mr Aciek Akec Aciek.

2    Mr Aciek was granted a Class XB Subclass 202 Refugee and Humanitarian (Permanent) visa in February 2004. In May 2014 he was convicted in the District Court of South Australia of a number of offences. He was sentenced to imprisonment for a period of almost five years with a non-parole period of two years and two months.

3    By letter dated 22 February 2016, he was informed that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth). The letter, referred to as a “Cancellation Notice”, was expressed to be given under s 501CA(3) of the Act. As at that date, Mr Aciek was in prison in South Australia.

4    The circumstances in which the 22 February 2016 cancellation letter was given to Mr Aciek is said to assume relevance. The 22 February 2016 letter is unsigned, although the author of the letter is identified by a Position Number. That letter, however, was forwarded by a Case Manager (Ms Simone Dillon) by way of email on 22 February 2016 to what were referred to by the Appellant as “the appropriate authorities in South Australia”. The email attached the “cancellation documentation” and emphasised that it was “important that the full documentation is provided to Mr ACIEK without delay”. An email from a Case Management Coordinator (Mr Michael Guyan) at the prison on the same day, however, stated that the Coordinator sought to serve Mr Aciek “today” but that Mr Aciek “refused to accept the documents when offered … and also refused to sign the acknowledge receipt”. Neither the Case Manager nor the Case Management Coordinator held delegations under s 501CA.

5    On 11 September 2017, Mr Aciek filed an Originating Application in the Federal Circuit Court of Australia challenging the validity of the Cancellation Notice.

6    In December 2017, a Judge of the Federal Circuit Court concluded (inter alia) that it was reasonably arguable that the Departmental Officer (Ms Dillon) who sent Mr Aciek the 22 February 2016 letter “did not act as the agent of the Minister” and that it was “reasonably arguable that the Cancellation Notice did not constitute the giving by the Minister of a notice required by s.501CA(3) of the Act”: Aciek v Minister for Immigration and Border Protection [2017] FCCA 3237 at [65] to [66], (2017) 327 FLR 412 at 431. The primary Judge concluded that the Cancellation Notice was “not a notice that was given in accordance with s.501CA(3) of the Act” with the consequence that “there was in law no notice given to the applicant under s.501CA(3) of the decision to cancel the Applicant’s Visa, and that there remains unperformed the obligation specified in s.501CA(3) of the Act that accrued when the Applicant’s Visa was cancelled on 16 February 2016”: [2017] FCCA 3237 at [75], (2017) 327 FLR at 433. Declaratory relief was granted as to the invalidity of the Cancellation Notice and an order made (Order 3) requiring the Minister to “do that which s.501CA(3) of the Act requires the [Minister] to do in relation to the decision made by the [Minister] on 22 February 2016 to cancel [Mr Aciek’s] Visa”.

7    On 4 January 2018 the Minister, in compliance with Order 3 as made by the primary Judge, caused Mr Aciek to be given a further notice under s 501CA. Mr Aciek provided submissions in favour of revocation on 6 February 2018. A delegate of the Minister refused to revoke the cancellation by way of a decision on 26 April 2018. It was common ground in this Court that that delegate held a delegation under s 501CA. An application for review of the delegate’s decision was then filed with the Administrative Appeals Tribunal and that Tribunal on 19 July 2018 affirmed the delegates’ decision.

8    Intervening in these events was the filing of the Notice of Appeal to this Court on 1 February 2018. It is concluded that the appeal should be permanently stayed.

The discretionary power to grant a stay

9    Any question as to the validity of the Cancellation Notice dated 22 February 2016, it is concluded, has been rendered moot by reason of the subsequent Notice given to him on 4 January 2018.

10    Notwithstanding the fact that this Court may retain a power to entertain an appeal raising an issue that has been rendered moot by reason of events subsequent to the filing of a Notice of Appeal (cf. Vanstone v Clark [2005] FCAFC 189, (2005) 147 FCR 299; Bonan v Hadgkiss [2007] FCAFC 113, (2007) 160 FCR 29), it is respectfully considered that this Court in the exercise of its discretion should refuse to do so.

11    Factors relevant to the exercise of that discretion, and the circumstances in which an appellate court may continue to the hearing of such an appeal, were canvassed as follows by Tamberlin, Stone and Siopis JJ in Hadgkiss (at 32):

[10]    There is no limit on the considerations which may be taken into account in determining whether to exercise the discretion to continue to hear and determine the appeal where the only live issue between the parties is the costs order made below. However, the authorities show that the courts have had regard to the following factors in determining whether to exercise the discretion: whether the decision under appeal has ramifications which extend beyond the facts of the case in question and it is in the public interest that the issue be resolved; whether the decision under appeal reflects adversely upon the reputation of one of the parties and the determination of the appeal may serve to vindicate that party’s reputation; whether a finding of bad faith by the decision-maker has been made; whether there is doubt over the correctness of the decision under appeal; the amount of judicial resources which would be taken in hearing and determining the appeal; and the costs issue.

(Citations omitted.)

An order was there made that the proceeding be permanently stayed. The authorities as to the existence of the discretion to permanently stay or dismiss an appeal which has been rendered moot by intervening events were also previously canvassed by Collier J in Aalders v Tax Agents’ Board of Queensland [2006] FCA 1442, (2006) 64 ATR 500. Her Honour there dismissed an appeal which had been rendered moot. In doing so, her Honour noted that “courts have been disinclined to hear and determine matters where the issues in controversy no longer have real practical significance”: [2006] FCA 1442 at [13], (2006) 64 ATR at 503.

12    The principal reasons why this Court may have been inclined to continue hearing the appeal arise out of a public interest in resolving three questions sought to be agitated by the Minister on appeal, namely:

    the question as to whether the giving of a notice under s 501CA was the making of a “decision” such as to attract the jurisdiction of the Federal Circuit Court; and/or

    the question as to whether there need be included within a Ministerial delegation made under s 496 of the Migration Act a delegation not only of the power to make a decision but also a delegation of a power to give notification; and/or

    the question as to whether someone other than a person holding a delegation could give a notice to a person affected.

But such reasons, with respect, are not persuasive.

13    The first question is of itself far from persuasive. The proper characterisation of administrative conduct as constituting a “decision” and that which constitutes a “decision” has been canvassed in many decisions of both this Court (see, for example, Director-General of Social Services v Chaney (1980) 47 FLR 80 and Lamb v Moss (1983) 49 ALR 533) and the High Court (see, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321). The second question, it may be accepted, is one of potentially continuing significance. Although future delegations, and even existing delegations, could readily be reframed in order to avoid any future uncertainty, there presumably remain a number of notices which have been given by persons whose delegations do not expressly include a delegated power to both make a decision and give a notice. The third question is considered to be a question which arises out of a unique set of facts rather than giving rise to a recurring question in need of general resolution. The factual substratum to the facts of the present case only arose because the 22 February 2016 letter was “given” to Mr Aciek by a person not holding a delegation under s 501CA to do so.

14    All such questions, it is respectfully concluded, are best left to be resolved in a factual context where there remains a continuing dispute between the parties. The Court was informed by the Minister’s senior counsel that there are other cases in the Federal Circuit Court the resolution of which depends upon the outcome of this appeal. It is unclear, however, whether the facts and circumstances of those cases are similar or comparable to those here. Concurrence is expressed with the observations of Cooper J in Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319, (2001) 33 AAR 439 at 444, where his Honour said on the issue of the determination of a question having a wider significance:

[17]    What CASA seeks in par (ii) of the relief sought is in the nature of an advisory opinion or a direction to the AAT as to how it shall, by its members in all future matters, exercise the discretion under s 41(2) of the AAT Act in a particular way in respect of any reviewable decision under the Act. As between CASA and the AAT, the declaration sought involves no declaration of a legal right in actual controversy which the declaration would confirm or modify and which remains capable in a real and genuine sense to be enjoyed: [Beitseen v Johnson [1989] 29 IR 336] at 337‑338. It is insufficient that CASA has a genuine interest in having the legal issues resolved for the benefit of its administration of the Act in future cases which may arise. Those issues will, in an appropriate case, be resolved in litigation where they are real and will have a practical effect in respect of a controversy.

15    In the circumstances of the present appeal, any question as to the costs of the proceeding either before the primary Judge or this Court is not a persuasive reason of itself to now hear an otherwise moot appeal. The primary Judge made no order as to costs. The Respondent to the appeal, having lost at first instance, obviously enough has filed no Notice of Cross Appeal alleging appealable error on the part of the primary Judge in not doing so. The Minister’s Notice of Appeal, however, does seek an order in this Court that Mr Aciek should pay the Minister’s costs at first instance. But the prospect of such an order being made, it is respectfully considered, plays little part in the present exercise of discretion. Had it been concluded that the public interest considerations were such as to warrant the hearing of the appeal, one very real prospect was that this Court may have ordered the Appellant Minister to pay the entirety of the costs incurred. It was, after all, the Minister who was urging this Court to resolve an issue of no continuing relevance or significance to Mr Aciek but an issue only of concern to the Minister.

16    It is also to be noted that the Respondent filed a Notice of Contention which raised the question of whether the person who originally notified the Respondent held an appropriate delegation. In oral submissions, but not in any written submission which had been filed, the Solicitor appearing for Mr Aciek accepted that his client had “no real interest” in the resolution of the existing proceeding. In circumstances where the appeal itself is moot, the fact that there is a Notice of Contention cannot be relevant to the exercise of the Court’s discretion.

CONCLUSIONS

17    The hearing of the present appeal has been rendered moot by the giving of a further and replacement notice under s 501CA(3) on 4 January 2018.

18    The discretionary power of the Court to continue hearing the appeal in such circumstances is exercised adversely to the Appellant Minister.

19    Any question as to the validity of the notice subsequently given to Mr Aciek is properly the subject of separate proceedings.

20    Given the absence of any prior submission being made on behalf of Mr Aciek that he had “no real interest” in the proceeding, and in the absence of any such submission being foreshadowed, there should be no order as to costs.

Associate:

Dated:    14 August 2018