FEDERAL COURT OF AUSTRALIA

SZTVU v Minister for Home Affairs [2018] FCA 1394

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal is allowed.

2.    The first respondent is to pay the applicant’s costs of the application for leave to appeal as agreed or assessed.

3.    The first respondent, by himself or by his Department, officers, delegates or agents is restrained from removing the applicant from Australia until the proceedings are determined by the Court or withdrawn.

4.    Costs of the application for an interim injunction are reserved.

5.    There be liberty to apply on 48 hours’ notice.

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

REASONS FOR JUDGMENT

(revised from transcript)

PERRY J:

1.    INTRODUCTION

1    The applicant is a citizen of Sri Lanka and is currently in immigration detention.

2    On 2 August 2018, the applicant filed an application for leave to appeal from a judgment of the Federal Circuit Court (the FCC) given on 19 July 2018 dismissing his application on a show cause hearing under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules). The applicant had sought judicial review in the FCC of a decision by the second respondent, the Administrative Appeals Tribunal (the Tribunal), that the Tribunal did not have jurisdiction to review a decision by the delegate refusing to grant the applicant a protection visa. The hearing of the application for leave to appeal has been listed for hearing urgently following the adjournment of an application seeking an interim injunction against the Minister to prevent him from removing the applicant from Australia pending the determination of the application for leave to appeal. If the Court grants leave to appeal, the applicant has intimated that he would press his application for an interim injunction pending the determination of the appeal and would also seek that the appeal be referred for determination by a Full Court pursuant to subs 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).

3    For the reasons given below, the application for leave to appeal is allowed and the matter should be referred for determination by a Full Court.

2.    BACKGROUND

2.1    The initial decision refusing the protection visa application on refugee Convention grounds

4    The applicant arrived in Australia in early 2013 by air on a genuine passport but did not have a visa and was not immigration cleared. As such, the applicant was described as an Unauthorised Air Arrival and was detained under s 189 of the Migration Act 1958 (Cth) (the Act) (Tribunal’s reasons at [4]).

5    The applicant applied for a protection (Class XA) visa which was refused on 23 September 2013. The then Refugee Review Tribunal (now the Tribunal) affirmed that decision on 8 January 2014. An application by the applicant for judicial review of that decision was unsuccessful: SZTVU v Minister for Immigration and Border Protection [2015] FCCA 1620; appeal dismissed in SZTVU v Minister for Immigration and Border Protection [2015] FCA 1449. As a consequence, the applicant was barred from making any further protection visa application by s 48A of the Act.

2.2    Exercise of the power under s 48B of the Act and specification of the applicant as a fast track applicant in IMMI 17/015

6    Correspondence was tendered before the primary judge and this Court identifying that the applicant sought ministerial intervention and on 5 September 2017, the applicant was informed by letter that the Minister had decided to exercise his power under s 48B of the Act to allow the applicant to make an application for a protection visa. The letter further stated that the applicant had been specified as a fast track applicant in a legislative instrument made under subs 5(1AA)(b) of the Act (FCC reasons at [3]). The same letter advised that the applicant had been given a Personal Identification Digit (PID) for processing and correspondence purposes which was recorded at the top of the letter. The applicant was subsequently informed that he was identified by this PID in the legislative instrument made under subs 5(1AA)(b) of the Act.

2.3    The second application for a temporary protection visa and application for review by the Tribunal

7    On 6 September 2017, the applicant applied for a Temporary Protection visa. On 30 November 2017, the delegate refused the application. The delegate also found that the applicant was an excluded fast track applicant because he had made claims for protection in countries other than Australia that were refused by those countries: see the definition of an excluded fast track applicant in subs 5(a)(iii) of the Act.

8    On 21 December 2017, the applicant sought review of the delegate’s decision before the Tribunal.

9    The Tribunal wrote to the applicant on 18 January 2018 advising that his application for review to the Tribunal on 21 December 2017 appeared not to be a valid application because it was an application for review of a decision made in relation to a fast track applicant, and afforded him an opportunity to comment on the validity of his application. An extension of time within which to respond to this invitation to comment was granted to 6 February 2018.

10    In early February 2018, the applicant submitted a signed statement to the Tribunal. In his response to the Tribunal’s letter, the applicant claimed that by not bringing to his attention that he would be considered as a fast track applicant by reason of his PID being mentioned in the relevant ministerial instrument the delegate made a “serious mistake” which had deprived the applicant of the chance to “respond accordingly”. The applicant also claimed that his visa application should not be considered in the excluded fast track process because the Department of Immigration and Border Protection (the Department) did not demonstrate that the earlier protection applications in European countries were either valid or refused.

11    On 13 February 2018, the Tribunal found that it did not have jurisdiction. Specifically, the Tribunal found that the applicant was identified by his PID under the legislative instrument IMMI 17/015 (IMMI 17/015) and therefore was a fast track applicant pursuant to subs 5(1AA)(b) of the Act. Accordingly, the Tribunal found that the decision the subject of the review application was a “fast track decision” made in relation to a protection visa application and was not reviewable by the Tribunal by virtue of subs 411(2)(c) of the Act.

2.4    The decision of the FCC

12    The primary judge dismissed the application for judicial review of the Tribunal’s decision on 19 July 2018 at a show cause hearing under rule 44.12 of the FCC Rules on the basis that no arguable case of jurisdictional error was raised. Curiously the show cause hearing was conducted as if it were a trial of the application for judicial review on the basis of a Court Book and with full argument by both parties. This may indicate error in the manner in which the show cause hearing proceeded and lend some weight to the applicant’s contention that the primary judge erred in that his Honour did not apply the appropriate standard in determining whether there was an arguable case, notwithstanding the use by his Honour of the correct language (e.g. no “reasonable argument” and “no arguable case” (FCC reasons at [15] and [17])): see e.g. by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP) at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (the Court).

13    After referring to IMMI 17/015 and the references in Schedule 1 to particular persons identified by an anonymized reference number, the primary judge held that:

14. … It is apparent on the face of the schedule that those are persons who have all sought protection, whether successfully or unsuccessfully. It is apparent that all the persons are non-citizens. The language of the instrument reflects a valid exercise of the instrument making power in s 5(1AA) of the Act.

(emphasis in the original)

14    His Honour went on to reject that there was any arguable case that IMMI 17/015 was invalid or in excess of the instrument making power. In this regard, after referring to the fact that the applicant had previously been an applicant for a protection visa, his Honour held that

16. … Even if words of limitation were to be read in, they would not be words that required the applicant to be subject of a current protection visa application. It is apparent that the scope of the instrument-making power relates to a person who had unsuccessfully sought protection, which would include the applicant in the present case. No arguable case of jurisdictional error is made up by ground 1.

15    Grounds 2 and 3 in the Court below in substance challenged the Tribunal’s decision on the ground that the applicant was not a fast track review applicant. The primary judge also found that the Tribunal correctly identified that the applicant was a person specified by a PID in IMMI 17/015, correctly found the applicant to be a fast track applicant, and therefore correctly held that it had no jurisdiction to entertain the application for review: FCC reasons at [17]-[18].

3.    PROCEDURAL HISTORY

16    Despite the application for leave to appeal to this Court being outstanding, the applicant received on 23 August 2018 a letter on the letterhead of the Department which relevantly stated:

The Department of Home Affairs (“the Department”) acknowledges that on 1 August 2018 you lodged a Court application (NSD 1368/2018) in the Federal Court in Sydney.

The Department notes that you are scheduled to be removed from Australia on or after 31/08/2018 (as per the attached notice of removal).

Unless we are restrained from doing so by an interlocutory injunction or order made by the Federal Court or other court of competent jurisdiction, it is the Department’s intention to proceed with your removal on or after 31/08/2018.

…

17    The letter enclosed a notice from the Department advising relevantly that:

I write to advise you that you are liable for removal from Australia under the following provision of the Migration Act 1958:

S198

Arrangements have been made for your removal. It is anticipated that you will be removed from Australia on or after Friday, 31 August 2018. The Department will monitor these arrangements until your departure to ensure your removal can be effected as intended, including confirming that valid travel documentation is available, that you are medically fit to travel and that you do not have any outstanding legal matters impacting on your removal.

…

18    Initial attempts to resolve the issue of the applicant’s removal were unsuccessful. As a consequence on 29 August 2018, the applicant filed an urgent application for an injunction seeking orders to restrain the respondent Minister from removing the applicant from Australia to be heard no later than 30 August 2018. That application is supported by the affidavit of the solicitor for the applicant, Mr Pathmanathan Rama, affirmed on 29 August 2018.

19    The matter came before me in my capacity as Duty Judge and was listed for hearing on 30 August 2018 at 11:15 AM. While at that hearing, the Minister’s legal representatives did not have instructions to give a formal undertaking, they gave on behalf of the Minister their solemn assurance that the applicant would not be removed from Australia prior to the hearing of the application for leave to appeal. As a result the parties agreed with the suggestion that, instead of determining the application for interim relief at that time, the application for leave to appeal would be set down expeditiously for hearing the following week on Friday, 7 September 2018.

4.    IMMI 17/015 AND RELEVANT STATUTORY PROVISIONS

20    The Act defines a “fast track decision” as a decision to refuse to grant a protection visa to a “fast track applicant” subject to certain exclusions not presently relevant: subs 5(1) of the Act. A “fast track applicant” is defined in subs 5(1) to mean:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

(ii)    to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

(iii)    who has made a valid application for a protection visa in accordance with the determination; or

(b)    a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).

Note:    Some unauthorised maritime arrivals born in Australia on or after 13 August 2012 may not be fast track applicants even if paragraph (a) applies: see subsection (1AC).

(emphasis in subparagraph (b) added)

21    Subsection 5(1AA) of the Act in turn provides that:

(1AA)    The Minister may make a legislative instrument for the purposes of the following provisions:

(a)     paragraph (b) of the definition of excluded fast track review applicant in subsection (1);

(b)    paragraph (b) of the definition of fast track applicant in subsection (1).

(emphasis removed)

22    On 26 July 2017, the Minister purported to make a statutory instrument entitled Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017 under subs 5(1AA)(b) of the Act. Clause 5 of the instrument stated that it “is made for the purpose of paragraph (b) of the definition of fast track applicant in subsection 5(1) of the Act” and “specifies a person who is a fast track applicant.” Clause 6 of IMMI 17/015 is the operative provision which provides that:

A person specified by reference to their Department of Immigration and Border Protection Person Identification Digit in Schedule 1 to this instrument is a fast track applicant.

23    Schedule 1 contained a list of numbers described as PIDs.

24    Part 7 of the Act provides for the review of Part 7-reviewable decisions by the Tribunal in its Migration and Refugee Division, being decisions which relate to the grant or cancellation of protection visas in some circumstances. However, by virtue of subs 411(2)(c), “fast track decisions” are not “Part 7– reviewable decisions”.

5.    CONSIDERATION

5.1    Relevant principles

25    It is not in issue that the applicant requires leave to appeal from the decision of the FCC for the reason that the dismissal of the application at a show cause hearing under rule 44.12 of the FCC Rules is interlocutory in nature: see rules 44.12(1)(a) and 44.12(2), FCC Rules; subs 24(1A), FCA Act; Perera v Minister for Immigration and Border Protection [2013] FCA 1417 at [4]–[6] (Bromberg J); BZADA v Minister for Immigration and Citizenship [2013] FCA 1062 at [3] (Rangiah J).

26    In deciding whether or not to grant leave to appeal, the relevant factors include whether the decision of the FCC:

(1)    is attended by sufficient doubt to warrant reconsideration; and

(2)    if the decision is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

(Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court)).

27    In considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess ‘the merits’ in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [9] (Brennan CJ and McHugh J). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP at [62].

28    Furthermore, it is important to emphasise that the judgment of the FCC is effectively final in so far as the applicant is concerned. In such a case, French J (Beaumont and Finkelstein JJ agreeing) held in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 that:

43. Artificial distinctions may be drawn because of the requirement that the Court looks to the legal rather than the practical effect of the order in question… But such artificiality as may arise can be overcome by a sensible exercise of the discretion to grant leave informed by the underlying policy of that requirement. Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pre-trial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings. If the order, the subject of the application for leave to appeal, is concerned with the mechanics of the pre-trial process then the scales are likely to be weighted against the grant of leave. However if while interlocutory in legal effect it has the practical operation of finally determining the rights of the parties ‘a prima facie case exists for the granting of leave’ … If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However leave will usually be granted in such a case if there is any doubt about the decision at first instance…

(citations omitted)

29    Similarly in Duncan v Sec, Department of Family and Community Services [2007] FCA 507; (2007) 9 ALD 241 at [18], French J held that:

…the threshold for the grant of leave is not as high as a case in which a procedural ruling is the subject of challenge – Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [42]—[44]; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400. …In a case such as the present which has the practical effect of finally determining the rights of the parties ‘a prima facie case exists for granting leave to appeal’ – Ex parte Bucknell (1936) 56 CLR 221 at 225.

See also e.g. Ex parte Bucknell (1936) 56 CLR 221 at 225 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ).

5.2    Leave should be granted

30    The appellant identified the main issues on the application for leave to appeal as concerning:

18. … whether the primary judge erred in his findings in respect of, first, the proper construction of s 5(1AA)(b) of the [Act] (Ground 2); and, secondly, the validity of the Statutory Instrument (IMMI17/015) made under s 5(1AA)(b) in so far as it purports to apply to the Applicant (Ground 3-6). There is [the] [sic] further issue of whether the primary judge applied the appropriate standard in determining whether there was no arguable case (Ground 1).

31    The applicant submits that as a matter of construction, the scope of the Minister’s power under subs 5(1AA)(b) “is limited to specifying that a person who has made an application for a protection visa [is] a ‘fast track applicant’” (emphasis in the original). In this regard, it was not in dispute that at the time when IMMI 17/015 was made, the applicant did not have an extant application for a protection visa despite having had an earlier application which was unsuccessful. As such, on the applicant’s submission, he could not validly have been designated as a fast track applicant under an instrument made under subs 5(1AA) of the Act. To the contrary, he was barred by s 48A of the Act from making any further protection visa applications by reason of his previous unsuccessful application for a protection visa, subject only the non-compellable discretion vested in the Minister to lift the statutory bar under s 48B of the Act to enable him to so apply.

32    In my view this is a case where leave to appeal should be granted.

33    First, as the applicant submits, while the primary judge’s decision is interlocutory in nature, as a practical matter it effected a final determination of the applicant’s rights. It follows on the basis of the authorities to which I have earlier referred that there is a prima facie case for a grant of leave and that leave should be granted if there is any doubt about the matter.

34    Secondly, I consider that the point of construction is not unarguable contrary to the primary judge’s decision, whether applying the standard in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [24] (French CJ and Gummow J) or indeed the earlier standard enunciated in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 (Barwick CJ). It is not necessary to articulate all of the arguments by the applicant in support of his construction on the current application or those of the Minister against that construction; nor do I consider that would be appropriate bearing in mind the proper approach to any consideration of the merits of that construction at this preliminary stage. However in forming the view that the applicant’s construction is not unarguable, I have had particular regard to the following arguments by the applicant in support of that construction.

(1)    It was not in issue that the word “person” in subs 5(a) is a word of broad import which takes its meaning from the context in which it appears.

(2)    When read in the context of the Act, it was accepted by the parties, that the word “person” could refer only to a non-citizen and that the definition was relevant in the scheme of the Act to the fast track processes created by the Act for a limited merits review of certain decisions pertaining to applications for protection visas. In other words, the purpose of designating a person as a fast track applicant is, subject to the person’s further designation as an excluded fast track applicant, to establish that the fast track processing regime under Part 7AA applies to the person. However, the fast track process established by that Part has relevance only in the context of a valid and extant protection visa application. As such, the applicant submitted that it was intended that the power in subs 5(1AA) to designate a person as a fast track applicant can be only exercised with respect to persons who have a current protection visa application.

(3)    On the other hand, it was submitted that the construction adopted by the primary judge, namely that the power could be exercised with respect to any person who had in the past been refused a protection visa (FCC reasons at [16]), would capture a whole range of persons to whom the fast track process under the Act could have no relevance.

(4)    Furthermore, not even the Minister in submissions on the application submitted that the primary judge’s construction in this regard was correct but rather put forward a third possible construction, namely, that the power in subs 5(1AA) applies to applicants for protection visas and to potential applicants for protection visas. Any such contention would require the Minister to file and serve a notice of contention in due course.

(5)    Finally, the applicant pointed to the fact that the designation of a person as a fast track applicant has the consequence that that person is deprived of the opportunity otherwise afforded under the Act to seek a fulsome merits review of the delegate’s decision in the Tribunal and is instead (at best) limited to the very confined scope of merits review for which Part 7AA provides (CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [20]-[22] (Perry J)), albeit that the applicant in this case did not personally have access to Part 7AA review.

35    In those circumstances and given the seriousness of the consequences to the applicant if leave is not granted, I consider that it is in the interests of justice to grant leave to appeal.

6.    THE APPLICATION FOR REFERRAL TO THE FULL COURT

36    Finally, in the event that leave to appeal were granted, the applicant sought that the matter be referred for determination by a Full Court pursuant to subs 25(1AA)(b) of the FCA. In this regard, the parties were agreed that the decision is likely to affect a significant number of other persons being those specified in IMMI 17/015 which may also include persons who are not excluded fast track applicants. In those circumstances it is in my view appropriate to make the referral sought.

7.    CONCLUSION

37    For these reasons leave to appeal is granted. The first respondent is to pay the applicant’s costs of the application for leave to appeal as agreed or assessed. The matter is referred to the Full Court for consideration of the appeal.

Associate:

Dated:    10 September 2018