Federal Court of Australia

Heiner v Minister for Home Affairs [2022] FCAFC 81

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    Phillip Heiner is an Australian-born man who holds Irish citizenship and lives in the United Kingdom. He firmly believes that he is an Australian citizen and is aggrieved by a decision of the Administrative Appeals Tribunal, which was not disturbed on review by this Court, in which he was found to have relinquished his Australian citizenship after his marriage to an Irish citizen. Years later he applied for a visitor’s visa in order to return to Australia but a delegate of the Minister for Home Affairs refused his application. He complained to the Australian Human Rights Commission which began an inquiry into the matter. But the Commission decided not to continue the inquiry relying on the powers conferred by s 20(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). Mr Heiner applied to this Court for judicial review but his application was dismissed as an abuse of process and, relevantly, because the alleged errors were not made out. This is an appeal from that judgment.

2    The sole ground of appeal is that the primary judge erred by failing to find that the Commission failed to deal with “an integer” of his claim, namely, that he was denied entry to his own country (Australia) and failed to find that this was a breach of his right under Art 12(4) of the International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171, 6 ILM 386 (entered into force 23 March 1976) (ICCPR).

3    For the reasons that follow, the appeal is without merit and must be dismissed.

Background

4    Mr Heiner was born in Australia in 1959 and acquired Australian citizenship by birth. In November 1994 he married an Irish woman and in 1999 lodged a declaration of acceptance of Irish citizenship “as post-nuptial citizenship” in conformity with s 8(1) of the Irish Citizenship and Nationality Act 1986. Upon lodgement of the declaration, Mr Heiner became an Irish citizen. Although he did not then know it, in so doing, he automatically ceased to be an Australian citizen. That is because, at the time, s 17 of the Australian Citizenship Act 1948 (Cth) (1948 Act) provided that an Australian citizen who has attained the age of 18 and who does any act or thing (other than the mere act of marriage), the sole or dominant purpose or effect of which is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen. While s 17 of the 1948 Act was repealed in 2002, the repeal only applied to the acquisition of foreign nationality or citizenship which occurred after the commencement of the amending legislation: Australian Citizenship Legislation Amendment Act 2002 (Cth), Sch 1 item 4.

5    The 1948 Act was repealed on 1 July 2007 and replaced by the Australian Citizenship Act 2007 (Cth) (2007 Act). Section 29(1) of the 2007 Act enables a person to make an application to the Minister “to become an Australian citizen again”. Section 29(3) relevantly provides that a person is eligible to become an Australian citizen again if the person ceased to be an Australian citizen under s 17 of the 1948 Act and the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application. Section 32(1) provides that a person becomes an Australian citizen again on the day the Minister approves them doing so.

6    In 2010, Mr Heiner divorced his Irish wife and later married a citizen of the United Kingdom. He and his second wife had a daughter and in April 2011 Mr Heiner applied on her behalf for Australian citizenship by descent, believing that he held dual Australian and Irish citizenship. A delegate of the Minister for Immigration and Citizenship refused the application because his daughter did not have a parent who was an Australian citizen, as required by s 16(2) of the 2007 Act. Mr Heiner lodged an application for review with the Tribunal but the Tribunal affirmed the delegate’s decision: Heiner and Minister for Immigration and Citizenship [2012] AATA 236. That decision was quashed by consent for jurisdictional error because the Tribunal failed to make a finding on whether Mr Heiner had “done a thing or act the dominant purpose of which, and the effect of which, was that he acquired citizenship of a foreign country”. But on remittal of his application, the Tribunal again affirmed the delegate’s decision, finding that by making his declaration for the purpose of obtaining Irish citizenship and which had that effect, Mr Heiner had done an act or thing which deprived him of Australian citizenship: Heiner and Minister for Immigration and Citizenship [2012] AATA 933. An appeal on a question of law from that decision was unsuccessful: Heiner v Minister for Immigration and Citizenship (2013) 213 FCR 280 (Marshall J). Mr Heiner was ordered to pay the Minister’s costs. But he did not comply with that order.

7    Despite being advised in 2013, 2014 and 2016 that he could apply to resume his Australian citizenship under s 29 of the 2007 Act, he did not do so.

8    In August 2019, Mr Heiner applied for an eVisitor (Class TV) (subclass 651) visa in order to see his terminally ill sister in Melbourne (visa application). As a result of the costs order made against him six years earlier, he had an outstanding debt to the Commonwealth of $23,916.54. The Minister’s Department (Home Affairs) emailed Mr Heiner on several occasions regarding payment arrangements for his outstanding debt but he failed to respond. On 4 December 2019, a delegate of the Minister refused to grant his visa application because he did not satisfy cl 651.213 of Sch 2 to the Migration Regulations 1994 (Cth) which required that he satisfy certain public interest criteria (described in Sch 4 of the Regulations). One of those criteria was public interest criterion 4004 which was that “[t]he applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment”.

The complaint to the Commission

9    On 6 November 2019, Mr Heiner lodged a complaint with the Commission. In answer to the question, “Please explain the type of assistance you need”, he replied (without alteration):

I was born Australian but denied entry. Citizenship Act S17 was amended by treachery in 1984 to operate by judicial corruption, misconduct and racism.

Constitution was overthrown to remove protection not to alienate Australians who did not emigrate.

In [1992]FCA238 court rules a discretionary decision is needed but finds no power or criteria to make it. Exceeded power and actual bias makes every S17 decision.

On 16 July 1995 only guide on S17 decision is revised so Jews acquiring Israeli citizenship stay Australian and all others lose citizenship unless proven otherwise.

The relevance of [1992] FCA 238 is obscure. This was a judgment in an application by one John Patrick Gaffney for discharge from his bankruptcy. The primary judge took it to be a reference to Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 36 FCR 68. That case did concern s 17 of the 1948 Act. But the point Mr Heiner was trying to make by referring to it is impossible to discern.

10    In an email the following day, Mr Heiner wrote (without alteration):

I am born Australian but denied entry to Australia at a time when my sister has months to live. The matter is serious to me personally and also serious to government now treachery has removed the protection of the Constitution.

Please identify the person who choses not to investigate this matter and the reasons no racism or breach of human rights by the Commonwealth of Australia is found. The following would be expected to have been addressed:

1.    Source of Constitutional power to alienate me from Australia. Unless the founders of the Constitution got it wrong in omitting the power “for fear it would be misused”, the Constitution has been overthrown and an act of treachery has been committed with penalty to life imprisonment.

2.    Statutory power and criteria to make the decision on S17 to cease my Australian citizenship. Unless the power and criteria are found, the discretionary decision to alienate me from my country of birth and land of my family was made in excess of power and on reason of actual bias. The Commission would be supporting judicial corruption.

3.    The only guideline for making the decision on S17 to alienate me is found in the 16th July 1995 amendment to the Australian Citizenship Instructions. Unless an interpretation is found other than the entitlement of Jews becoming Israeli to remain Australian and all others to lose citizenship, and has foundation that it has been applied an adequate number of times, then I am alienated from Australia by conduct with pro-Jewish and anti-Australian bias.

I look forward to this matter being resolved quickly and fairly.

11    Mr Heiner sent an additional six emails to the Commission over the four weeks from 13 November 2019 to 12 December 2019, which, together with the first, the Commission treated as the complaint.

12    The Commission advised Mr Heiner that, based on the information provided, his complaint was “considered and progressed” as a complaint alleging a breach of human rights under the ICCPR.

13    In a further email to the Commission on 23 January 2020, Mr Heiner said that he was seeking an answer to the question whether the amendment to s 17 effected by the Australian Citizenship Amendment Act 1984 (Cth) was valid or not and that he was calling for the decisions of the Tribunal and the Court to be investigated for “irrationality and misconduct by the decision makers”.

14    In the meantime, on 10 January 2020 the Commission contacted Home Affairs, advising that it had received Mr Heiner’s complaint. It attached a copy of the complaint documents, provided a summary of the background and of the complaint and a description of the complaint-handling process, and invited a response to a number of questions arising from the material submitted by Mr Heiner.

15    Home Affairs responded on 24 February 2020. The Commission forwarded the response to Mr Heiner on 9 March 2020. On 11 March 2020 Mr Heiner replied with an intemperate email reiterating his complaints and abusing the Commission and the decision makers who had disappointed him.

16    The Commission wrote to Mr Heiner on 6 May 2020 advising of its decision to terminate the inquiry into his complaint and setting out its reasons for doing so.

The legislative framework

17    Section 11 of the AHRC Act describes the functions of the Commission. Those functions relevantly include:

(f)    to:

(i)    inquire into any act or practice that may be inconsistent with or contrary to any human right; and

(ii)    if the Commission considers it appropriate to do so—endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry[.]

18    “Human rights” are defined in s 3 of the Act to mean “the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument”. The “Covenant” is also defined in s 3. It means the ICCPR, the English text of which is set out in Sch 2 to the Act.

19    The Commission’s functions relating to human rights are set out in Pt II Div 3. Section 20(2), which is within that Division, gives the Commission the power not to inquire into an act or practice or to terminate an inquiry after it has begun. It relevantly provides that:

The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:

…

(ba)    the Commission is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the act or practice is not warranted; or

(c)    in a case where a complaint has been made to the Commission in relation to the act or practice:

…

(ii)    the Commission is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance; or

(iib)    the Commission is satisfied that there is no reasonable prospect of the matter being settled by conciliation; or

…

(iv)    the Commission is of the opinion that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the person aggrieved by the act or practice[.]

20    Section 10A(2) of the AHRC Act provides that “[n]othing in this section imposes a duty on the Commission that is enforceable by proceedings in a court”.

The Commission’s decision

21    Based on the information Mr Heiner provided, the Commission considered that the complaint raised a potential breach of Art 12 of the ICCPR. Article 12 is in the following terms:

1.    Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2    Everyone shall be free to leave any country, including his own.

3.    The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4.    No one shall be arbitrarily deprived of the right to enter his own country.

22    The Commission observed that it did not have jurisdiction to investigate breaches of the Constitution or the rule of law and that the International Convention on the Elimination of all Forms of Racial Discrimination was not an instrument scheduled to, or declared under, the AHRC Act.

23    The Commission explained that the decision to cease inquiring into Mr Heiner’s complaint had been made because, having regard to all the circumstances, the continuation of an inquiry into the act or practice was not warranted (AHRC Act, s 20(2)(ba)). But it is apparent from the Commission’s reasons that it also considered the complaint was lacking in substance (AHRC Act, s 20(2)(c)(ii)); that it was unlikely that “a practical outcome or remedy” could be achieved through the Commission’s complaint and conciliation process (AHRC Act, s 20(2)(c)(iib)); and that some other more appropriate remedy was reasonably available to Mr Heiner (AHRC Act, s 20(2)(c)(iv)).

The application before the primary judge

24    Mr Heiner filed an application for judicial review, claiming that the Department violated his human rights by ceasing his Australian citizenship, preventing him from travelling to Australia or by denying his re-entry to Australia. The application did not identify a legislative basis for the review. In other words, it did not indicate whether it was brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) or the Judiciary Act 1903 (Cth) or both. In his Contentions of Fact and Law, however, Mr Heiner mentioned the ADJR Act, albeit without specifically identifying any particular provision. He alleged that the cessation of his Australian citizenship was based on an invalid law (presumably s 17 of the 1948 Act) and that the earlier decisions of the Tribunal and this Court relating to his 2011 application were “corrupt”. Eight grounds of review were pleaded, but only one (ground 4) is relevant to the appeal. It read (without alteration):

AHRC dismissed my complaint and instead chose to test Home Affairs policy for compliance to ICCPR. AHRC first disclosed in the preliminary letter of closure of complaint that only Art12 of ICCPR would be tested. Only Art12(4) may bear relevance to my compliant and AHRC did not test it: “No one shall be arbitrarily deprived of the right to enter his own country”. Unless valid reason is shown otherwise, AHRC holds a biased view that Australia is not my “own country” to make Art12(4) irrelevant. Moreover unless valid reason shows otherwise, AHRC shows bias to accept the decision by Home Affairs to ceased my citizenship; without identifying the source of power in the Constitution to alienate me; without identifying the source of statutory power to make the discretionary decision of S17; without establishing the criteria upon which S17 is decided; and accepting as valid all decisions based on facts shown not to exist.

25    On 16 October 2020 the primary judge ordered that, if Mr Heiner sought to raise any issue involving a matter arising under the Constitution or involving its interpretation, he had to file and serve a notice under s 78B of the Judiciary Act by 26 October 2020. No such notice was served and in his Contentions of Fact and Law filed on 26 October 2020 Mr Heiner stated that “[n]owhere here is a constitutional matter intended to be raised”.

26    The primary judge accepted the Minister’s submissions concerning ground 4, as he did on all the grounds, holding that Mr Heiner “ha[d] not demonstrated any error capable of enlivening the Court’s jurisdiction on judicial review” (at [44]). In addition, his Honour held that the application was an abuse of process, finding that it was, in effect, an application to re-open his complaint about the cessation of his Australian citizenship which had been finally determined by Marshall J in 2013 (at [44]–[47]).

The appeal

27    By an amended notice of appeal Mr Heiner pleaded that the Court erred in failing to find that the Commission made one or more reviewable errors within the meaning of s 5(1)(e) and (f) of the ADJR Act “in failing to deal with an integer of [his] claim”, namely, his submission that he had been “arbitrarily alienated and denied entry to his own country Australia” and that the Commission failed to find “if” there was a breach of Art 12(4) of the ICCPR.

28    Section 5(1) of the ADJR Act relevantly provides that:

A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court … for an order of review in respect of the decision on any one or more of the following grounds:

…

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision[.]

29    Section 5(2) provides that:

The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)    failing to take a relevant consideration into account in the exercise of a power;

(c)    an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)    an exercise of a discretionary power in bad faith;

(e)    an exercise of a personal discretionary power at the direction or behest of another person;

(f)    an exercise of a discretionary power in accordance with a rule of policy without regard to the merits of the particular case;

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)    an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)    any other exercise of a power in a way that constitutes abuse of the power.

(Emphasis added.)

30    The single ground of appeal was accompanied by 13 particulars. The particulars purported to set out the relevant background facts underlying Mr Heiner’s complaint to the Commission and expand upon the basis for the pleaded error or errors. To some extent they were argumentative. The gravamen of his complaint appears in particular 9. It was that the Commission considered Art 12(1), (2) and (3) but failed to deal with his complaint that the Minister had breached Art 12(4). That appears to engage s 5(2)(b) of the ADJR Act. In particular 13, Mr Heiner asserted that he was willing to conciliate but that the Minister was not.

The appellant’s submissions

31    Although he insisted he was not seeking to challenge the previous decisions about his citizenship status, Mr Heiner submitted that he never lawfully lost his Australian citizenship and never acquired citizenship of any other country. He contended that no lawful source of power was (and never has been) identified to “make [him] foreign” and, for this reason, Australia remained “his own country” within the meaning of Art 12(4) of the ICCPR and the decision to exclude him from Australia was arbitrary. He maintained that the Commission did not address this question.

Consideration

32    As the Minister submitted, the language used in the formulation of the ground of appeal is redolent of the language of this Court’s migration jurisprudence and, in particular, Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] (Allsop J, Spender J agreeing at [1]). There, in the context of the obligation of the Refugee Review Tribunal to review a decision of the Minister (or the Minister’s delegate) under s 414 of the Migration Act 1958 (Cth), Allsop J made the following observations:

To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.

33    The language does appear to be inapt in the present context. Be that as it may, since it was the essence of Mr Heiner’s complaint, the Commission was at least bound to consider whether his claim to have been arbitrarily denied a right to enter Australia had any substance before it could exercise its power to dismiss the complaint under s 20(2)(c)(ii) — unless there was another basis for terminating the inquiry early. It stands to reason that the Commission could not lawfully dismiss a claim because it was lacking in substance without first considering whether it had any substance. If the complaint had been dismissed only under s 20(2)(c)(ii), then in the absence of any other basis a failure to consider the claim would amount to a failure to complete the jurisdictional task. In those circumstances, a failure to consider that claim might be a jurisdictional error, provided it were material (see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421), or an error of law. But the complaint was dismissed under s 20(2)(ba). The Court was not taken to any authority on the scope of this power. On its face, however, it plainly gives the Commission a very broad discretion, the scope of which is not subject to any express limits and Mr Heiner did not point to any implied limits. Indeed, he did not engage with the section at all.

34    In any case, on a fair reading of the Commission’s reasons, the Commission did consider and deal with Mr Heiner’s claim that he had been “arbitrarily alienated and denied entry to his own country Australia”.

35    For the purposes of determining whether Art 12(4) applied and as the Commission appears to have accepted, it did not matter whether Mr Heiner was an Australian citizen; the concept of “his own country” is broader than “country of his nationality”: see, for example, Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 141 at [50]. Certainly the Commission did not find that a reason his claim was lacking in substance was that Australia was not Mr Heiner’s “own country”.

36    In determining that the claim was lacking in substance the Commission said, amongst other things:

Firstly, the information before the Commission does not support that you were prevented from traveling to, or otherwise denied re-entry to, Australia in 2019 because of the cessation of your Australian citizenship and/or the Four Decisions. Rather, the information before the Commission indicates that you were not able to enter Australia in 2019 because you failed to satisfy the Public Interest Criteria 4004 (the PIC 4004) requirement attached to the Visitor Visa Application. It appears that anyone who acquired Australian citizenship by birth, whose Australian citizenship subsequently automatically ceased due to the operation of section 17 of the 1948 Act, who applies for an eVisitor visa and satisfies the PIC 4004, would have been issued with the visa and consequently allowed to enter Australia on such visa.

Based on the information before the Commission, I am of the opinion that had you paid the Debt, or otherwise entered into an acceptable payment arrangement for the Debt with Home Affairs, the PIC 4004 requirement would have been satisfied and that you may have been issued with the eVisitor visa to enter Australia. Home Affairs says it provided information regarding the payment arrangements in its emails of 12 September 2019 and 15 and 17 October 2019 to you; however, you did not respond to this correspondence within the legislative timeframes, resulting in the Visa Refusal Outcome. While you say in your email of 11 March 2020 that the Minister for Home Affairs was informed of your late sister’s then critical condition a month prior to the notification of the Visa Refusal Outcome of 4 December 2019, it is unclear why you did not respond to Home Affairs’ correspondence of 12 September 2019 and 15 and 17 October 2019 within the legislative timeframes to attempt to make an acceptable payment arrangement for the Debt to satisfy the PIC 4004 requirement so to be able to enter Australia with the eVisitor visa ...

37    While these paragraphs do not expressly mention Art 12(4), it is apparent that they are addressing Art 12(4). They refer to “enter” and “re-entry” which goes to the subject matter of Art 12(4). The Commission’s position was that, on the information before it, there was no substance to the claim that the Minister had denied Mr Heiner entry to Australia arbitrarily.

38    Some of Mr Heiner’s submissions strayed beyond the scope of the notice of appeal.

39    While he asserted in his submissions that “[n]o source of constitutional power to make [him] foreign [had] been declared”, he informed the primary judge that he was not raising a constitutional issue and did not issue a s 78B notice. In the circumstances, it was not open to him to raise the issue on appeal, at least without leave and leave was not sought. In any case, as the Commission recognised, it was beyond its jurisdiction to deal with that issue.

40    Mr Heiner suggested in his submissions that the Minister’s decision to rely on his debt to the Commonwealth was a discretionary decision which exceeded the Minister’s power. That suggestion must be rejected because Mr Heiner was not an Australian citizen at the time he sought entry in 2019 and s 65 of the Migration Act imposed a duty on the Minister to refuse Mr Heiner’s visa application if he did not satisfy the criteria for the visa.

41    Mr Heiner also submitted that the Commission terminated the inquiry without hearing from him. That submission must be rejected first, because it is outside the scope of the appeal, no denial of procedural fairness having been alleged, and second, because he was heard. He made several representations to the Commission which the Commission took into account.

42    Mr Heiner further submitted that it was necessary for the Minister to point to a power “enlivened by [his] circumstances to make him foreign lawfully”. As the Tribunal found, however, he lost his Australian citizenship by lodging the declaration that made him an Irish citizen. That consequence flowed from the operation of s 17 of the 1948 Act. To the extent that this submission rested on the proposition that s 17 was unconstitutional, it is beyond the scope of the appeal for the reasons we have already given.

43    Views might differ as to whether the Commission was right to conclude that the complaint was without substance or, a continuation of the inquiry was unwarranted. But that is immaterial for three reasons.

44    First, judicial review is not concerned with the merits of an administrative decision but with its legality. As Brennan J explained in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

45    Second, the appeal was narrow in its scope. While Mr Heiner’s original notice of appeal contained a broader series of allegations, it was struck out: Heiner v Minister for Home Affairs [2021] FCA 1125 (Kerr J). His Honour was not satisfied, however, that Mr Heiner’s complaint regarding Art 12(4) had no reasonable prospects of success (at [39]). He gave Mr Heiner leave to file an amended notice of appeal confined to such grounds as would put in issue whether “the learned trial judge erred by failing to find that [the] Commission fell into one or more reviewable errors as are available under the ADJR Act in dealing with his complaint that he was a person possessed of rights under Article 12(4) of the ICCPR which rights had been denied to him” (at [42]). To the extent that the amended notice of appeal identified a reviewable error available under the ADJR Act, it was the kind of error covered by s 5(1)(e) and (2)(b), s 5(1)(c) and (f). But the alleged error was limited to a failure to “deal with” the claim that his rights under Art 12(4) had been breached. Whatever the merits of any other ground or grounds that could have been pleaded, including any other paragraph of s 5(2), Mr Heiner must be held to his pleading.

46    Third, the primary judge was right to conclude that, even if the Commission did commit reviewable error, the decision is independently supportable on either or both of the other bases upon which it made its decision: Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 (the AEU case) at [34] (French CJ, Hayne, Kiefel and Bell JJ). As Heydon J said in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [124] in a passage endorsed by the plurality in the AEU case:

If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.

47    Mr Heiner did not address this matter in his written submissions or in oral argument, although the point was made by the Minister both at first instance and on the appeal.

48    The first independent basis was the availability of other actions or remedies. The Commission explained in its reasons:

As it relates to the subject matter of your complaint, namely Home Affairs’ decision in regard to the Visa Refusal Outcome, I consider that the situation could have been remedied by either the payment of the Debt or entering into appropriate arrangements with Home Affairs with respect to the payment of the Debt, when you were understandably advised of these options in Home Affairs’ emails of 12 September 2019 and 15 and 17 October 2019. These options were seemingly communicated to you at least more than two months prior to Home Affairs’ decision of 4 December 2019 in regard to the Visa Refusal Outcome. It is unclear why you did not contact Home Affairs to explore these options to attempt to remedy the issue regarding the PIC 4004 requirement not being met with respect to your Visitor Visa Application within the legislative timeframe, which ultimately resulted in the Visa Refusal Outcome.

49    The Commission was plainly of the opinion that paying the debt or entering into an arrangement with Home Affairs to pay the debt was a more appropriate remedy in relation to the subject matter of the complaint which was reasonably available to Mr Heiner (AHRC Act, s 20(2)(c)(iv)).

50    The Commission also noted that it was open to Mr Heiner to apply to resume his Australian citizenship years before he was denied entry to Australia but declined to do so.

51    The second independent basis was that the Commission did not consider that there was any reasonable prospect of the matter being settled by conciliation (AHRC Act, s 20(2)(c)(iib)). The Commission explained that it did not have the power to make an enforceable decision in relation to a complaint about alleged breaches of human rights; it could only try to help the parties to resolve a complaint through conciliation. It also explained that, if the matter is not resolved in this way, an aggrieved person cannot obtain a remedy in the courts (contrast the position in relation to complaints of unlawful discrimination: see AHRC Act, s 46PO). The Commission then referred to the relief Mr Heiner was seeking from the Commission as set out in his email of 23 January 2020 and explained to him that it was beyond its jurisdiction to provide it. It noted that Home Affairs had said in its response that it was not in a position to agree to, or participate in, conciliation. The Commission concluded that:

Overall, having considered the above, I am of the opinion that the practical outcomes and remedies are unlikely to be achieved through the Commission’s complaint and conciliation process.

52    In effect, the Commission’s conclusion was that conciliation would be futile. That conclusion was open on the material before it.

53    Mr Heiner contended that he was willing to participate in a conciliation but accepted that the Minister was not. He submitted that “[e]ffective conciliation depends on breach of Art 12(4) tested in terms of the Constitution and the Appellant’s particulars, and whether protection and compensation for the appellant and his family is warranted”. Neither of these outcomes was available through the Commission’s processes.

54    Mr Heiner submitted that the Court might find that he was unlawfully denied a visa on humanitarian grounds or that he could not lawfully be denied a visa at any time. That submission must be rejected. This Court is hearing an appeal on a limited ground from an application for judicial review of a decision of the Commission. It has no power to inquire into the legality of the visa refusal. If Mr Heiner wanted to challenge the legality of the decision to refuse to grant his visa application, he could only do so by filing an application for constitutional writs in the Federal Circuit and Family Court of Australia (Division 2) and the time in which he could do so has long since passed (see Migration Act, ss 474, 476A, 477).

Conclusion

55    The appeal must be dismissed. Costs should follow the event. There will be orders accordingly.

Associate:

Dated:    17 May 2022