FEDERAL COURT OF AUSTRALIA

AUZ18 v Minister for Immigration and Border Protection [2018] FCA 2117

ORDERS

BY CONSENT, THE COURT ORDERS THAT:

1.    The decision of the respondent dated 22 November 2016 to not revoke the cancellation of the applicant’s Class CD Subclass 851 Resolution of Status visa (visa) (Non-Revocation Decision) be quashed.

2.    The respondent pay the applicant’s cost, if any.

THE COURT NOTES THE FOLLOWING:

A.    The respondent accepts that the Non-Revocation Decision was affected by error. The Reasons for Decision at [23] indicate that the respondent proceeded on the basis of only a possibility that the applicant might be owed protection obligations under the Refugees Convention, in circumstances where the Refugee Review Tribunal had found, on 22 August 2005, that the applicant was a person to whom Australia owed those obligations. In proceeding on the basis of a mischaracterisation of the applicant’s history, in terms of whether there had been an express finding that protection obligations were owed to him in 2005, the respondent’s consideration of whether the cancellation of the applicant’s visa should be revoked, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), miscarried.

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

REASONS FOR JUDGMENT

FARRELL J

1    On 30 April 2018, the Court made consent orders quashing a decision of the Assistant Minister for Immigration and Border Protection made on 22 November 2016 (non-revocation decision) to refuse to revoke a decision of a delegate of the Minister made on 24 November 2015 (cancellation decision) to cancel a Resolution of Status visa said to have been issued to the applicant (AUZ18) on 14 January 2009. The notation to the orders states that:

The respondent accepts that the Non-Revocation Decision was affected by error. The Reasons for Decision at [23] indicate that the respondent proceeded on the basis of only a possibility that the applicant might be owed protection obligations under the Refugees Convention, in circumstances where the Refugee Review Tribunal had found, on 22 August 2005, that the applicant was a person to whom Australia owed those obligations. In proceeding on the basis of a mischaracterisation of the applicant’s history, in terms of whether there had been an express finding that protection obligations were owed to him in 2005, the respondent’s consideration of whether the cancellation of the applicant’s visa should be revoked, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), miscarried.

2    It appears that on 6 December 2018, AUZ18 lodged an urgent application before start of a proceeding seeking a writ of mandamus requiring the Minister to exercise the power in s 501CA(4) of the Migration Act 1958 (Cth) according to law and releasing him from Yongah Hill Immigration Detention Centre. That application has been docketed to Flick J.

3    On 7 January 2019, a delegate of the Minister for Home Affairs decided not to revoke the cancellation decision. AUZ18 received a copy of that decision on 8 January 2019 and AUZ18 sent an email to my associate on 9 January 2019 (not copied to the Minister) in the following terms (as written):

Please find attached the complete history files of my family of 2008 from Department of Immigration and Border Protection.

the original visa copy of my wife have been kept until now, she had been granted subclass visa 866 in 2009.

that was completely different with the information to be submitted to Federal Court by the respondent in June 2017.

But unfortunately, it was in the property of my family and currently exact whereabouts need to contact NSW police officer to find out. so I can not submit to Her Honour for reference in present.

Therefore, just as the description of the respondent in the consent order of 30 April 2018 that in proceeding on basis of a mischaracterisation of the applicant's history, the respondent's consideration of whether the cancellation of my visa should be revoked, pursuant to s 501CA(4) of the Migration Act 1958, miscarried.

In light of that on 16 November 2018, the Full Court of Federal Court ruled on case Minister for Immigration and Border Protection v DRP17[2018] FCAFC198.

My case should be equally applicable.

I would like to seek Her Honour that A writ of mandamus issue requiring the Minister to exercise the power in s501CA(4) of the Act according to law.

4    A case management hearing was held on 14 January 2019. In light of AUZ18’s applications to the Court and to chambers, it was not clear that he understood that the avenues of review from a decision not to revoke a cancellation decision are different where the decision is made personally by the Minister compared to where the decision is made by a delegate of the Minister. AUZ18 advised that following correspondence from the Court he had already made an application for review to the Administrative Appeals Tribunal. At the conclusion of the case management hearing, AUZ18 requested reasons for the consent orders made on 30 April 2018 and in light of the matters referred to below, it is useful for brief reasons to be given.

5    AUZ18 is a citizen of China. He arrived in Australia in 1997 on a business visa when he was 29 years old and he has not departed since then. He has a history of serious mental illness and using strong narcotics. He was arrested on 10 May 2009. Having initially been found unfit to plead, on 12 April 2013, he pleaded guilty to and was convicted of a number of drug possession and manufacture related offences, possession of an unauthorised pistol and knowingly dealing with proceeds of crime. On 24 April 2013, he was sentenced to an aggregate term of imprisonment of six years and four months, to date from 10 May 2009 and expire on 9 September 2015. He was released on parole on 17 June 2013 but the parole was revoked on 24 July 2015 because the applicant was found to have breached a condition that he not use or be in possession of a prohibited drug or substance. At the time the cancellation decision was made under s 501(3A) of the Migration Act, the applicant was serving the unexpired part of his sentence on a full time basis.

6    After the Assistant Minister made the non-revocation decision under s 501CA(4) of the Migration Act, AUZ18 applied for a protection visa on 18 January 2017 and he applied (initially to the Federal Circuit Court of Australia) for judicial review of the non-revocation decision. In the affidavit supporting his application for judicial review, he said that the “core issue” is the exact type of visa that he held; he said that he applied for a protection visa in August 2008 and he thinks that there has been a mistake by the Department of Immigration and Border Protection but the records are missing now.

7    When AUZ18’s application for judicial review of the Assistant Minister’s non-revocation decision was heard by this Court, the primary matter raised by AUZ18 was that he had not held a visa of the kind that was said to have been cancelled. Among other things, AUZ18 submitted that his wife, who had also applied for a protection visa on 1 September 2008 (at the same time as AUZ18 as a member of his family unit), had been granted one and is now a citizen of Australia. That would be inconsistent with the position put by the Minister concerning the application of the Migration Regulations 1994 (Cth) on and from 9 August 2008, in circumstances where the applications for protection visas were received by the Department on 1 September 2008. AUZ appeared to seek to raise the legitimacy of the conviction on which the cancellation of his visa was based, but he did not challenge the fact that the Minister’s delegate had relied on a certificate as to that conviction in deciding to cancel the visa. AUZ18 also sought to rely on the ground challenging the validity of s 501(3A) which was then the subject of an application to the High Court in Falzon v Minister for Immigration and Border Protection [2018] HCA 2. The matter was stood over pending the High Court’s decision. The Minister’s representative undertook to provide evidence of the Department’s records concerning visa applications made by the applicant and his wife.

8    Brendan Thomas Fox, the principal legal officer and organisational head of the Legal Co-ordination Service Section of the Department affirmed an affidavit on 24 May 2017 which attested to a search of the Department’s records which was undertaken at the instruction of the Minister’s legal representative. His evidence is that the searches could not locate copies of protection visa applications made by the applicant and his wife in 2008 or any grant of visas in response to them. However, electronic records are held in the Department’s processing system and those records indicate that:

(1)    The applicant lodged an application for a protection visa on 1 September 2008 and on 14 January 2009 he was granted a Resolution of Status (Class CD)(Subclass 851) visa. The applicant lodged another protection visa application on 18 January 2017 and receipt of the application was sent by the Department on 25 January 2017; and

(2)    The applicant’s wife lodged an application for a protection visa separately from the applicant on 9 September 2002. That application was refused by a delegate on 14 October 2002. In September 2008, the applicant’s wife applied for a Resolution of Status visa which was granted on 16 February 2009.

9    An affidavit filed on 6 June 2017 by AUZ18 indicated that AUZ18 had made a number of information requests from the Department over time. Attached to the affidavit was a copy of an application for a protection visa by AUZ18, including his wife as a member of his family unit, stamped as received by the Department on 1 September 2008.

10    After the High Court’s decision in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 was handed down (dismissing the challenge to the validity of s 501(3A)), a case management hearing was held on 22 February 2018. AUZ18 appeared to seek the opportunity to make further submissions in relation to the matters he had raised at the hearing of his application, and leave to do that was refused. The Minister advised that AUZ18’s application for a protection visa had been refused (not on character grounds), that decision had been affirmed by the Tribunal on 20 October 2017 and an application for judicial review of the Tribunal’s decision was dismissed by the Federal Circuit Court on 19 February 2018. The Minister undertook to provide a copy of the decisions of the Tribunal and Federal Circuit Court to the Court. The parties were given leave to make submissions in relation to the possible application of the decision in BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288.

11    Following receipt of submissions, and in preparing reasons, the Court referred to the Tribunal’s reasons for affirming the decision to refuse AUZ18 a protection visa. At [9] of the Tribunal’s reasons, the following paragraph appeared (footnotes deleted):

The applicant arrived in Australia in March 1997 as the holder of a Subclass 456 Business Short Stay visa. He was granted a Subclass 456 Business Long Stay visa in July 1997 which was valid until July 2001. From the expiry of that visa, the applicant remained in Australia unlawfully. In May 2005 he was apprehended, held in Villawood detention centre and then applied for a protection visa. In August 2005 this Tribunal (differently constituted, then called the Refugee Review Tribunal but in this decision referred to as the 'first Tribunal') found that the applicant was owed protection obligations. Due to concerns held by the department as to the applicant's identity, he was granted a Subclass XA - 785 Temporary Protection visa. In September 2008, the applicant applied for a Subclass XA – 866 Protection visa and, at the same time, a Subclass CD-851 Resolution of Status visa. In January 2009 the latter application was successful and the department granted the applicant that visa causing him to withdraw the protection visa application.

12    On 19 April 2018, the Court sent an email to the parties noting this paragraph of the Tribunal’s reasons. Relevantly the email said:

Accordingly, it appears that a Tribunal had determined in August 2005 that AUZ18 was owed protection obligations and that he was given a temporary protection visa in about August 2005. This was not mentioned in the Department’s briefing note or in the Assistant Minister’s consideration of non-refoulement. It was also not mentioned in Mr Brendan Fox’s evidence provided by the Minister following the hearing on 26 April 2017 in which the Court sought to have clarified AUZ18’s migration record. There is a passing reference to the temporary protection visa in correspondence included in AUZ18’s affidavit material.

Why would the Assistant Minister’s failure to recognise that he was being called upon to make a decision in relation to someone who had already been assessed as being owed protection obligations not give rise to a jurisdictional error in the manner in which he dealt with AUZ18’s claim that he was at risk if he returned to China as a “reason” why the cancellation decision should be revoked?

13    In an email sent the next day, the Minister’s legal representative advised that the Minister would consider its position in light of this material and noted:

The focus of Mr Fox’s evidence was the circumstances surrounding the grant of the applicant’s visa in 2008, being the visa that was cancelled; and inquiries were not made as to the applicant’s earlier visa history. As the Court has pointed out, the applicant’s earlier application for a protection visa in 2005, and the resolution of that application, raise questions which are of significance to the decision at issue in the present case, and the Minister apologises for not having independently considered them.

14    On 27 April 2018, the Minister’s legal representative advised the Court that she had sent draft consent orders to the applicant on the basis that the Minister committed error. Signed consent orders were received by the Court on 30 April 2018 and the orders were made.

15    It was the Court’s view that it was appropriate to make the consent orders for the reasons set out in the email dated 19 April 2018 and in the notation to the orders. It was unnecessary to note other matters in the orders and it was then thought unnecessary to publish reasons. However, in light of AUZ18’s request for reasons it is appropriate to set out the following matters on the basis of which I am satisfied that the matters set out in Mr Fox’s affidavit (as they affect AUZ18) are not mischaracterised. In my view, there is no basis to revoke the orders made on 30 April 2018.

16    The orders made on 30 April 2018 quashed the non-revocation decision made by the Assistant Minister personally on 22 November 2016. The decision whether to revoke the cancellation of AUZ18’s visa has now been considered afresh by a delegate of the Minister. On 7 January 2018, a delegate decided not to revoke the cancellation decision and a copy of that decision was provided to AUZ18 on 8 January 2019. Notwithstanding that there was not an order for mandamus included in the consent orders made on 30 April 2018, it would not now be appropriate to amend those orders to provide for a writ of mandamus to issue in relation to the decision made on 22 November 2016, since a new decision has been made.

17    In summary, when I made the consent orders on 30 April 2018, I was satisfied that the correct visa had been cancelled by the delegate on 24 November 2015. That view is based on Mr Fox’s evidence and the fact that AUZ18’s application for a protection visa was received by the Department on 1 September 2008, as demonstrated by evidence submitted by AUZ18 on 6 June 2017. I accepted the Minister’s submissions that by virtue of the operation of reg 2.07AQ of the Migration Regulations, if a person applied for a protection visa on 1 September 2008, they were taken to have applied for a Resolution of Status visa. I had taken into account the history of Resolution of Status visas which was recorded by Griffiths J in BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 at [21]-[26] which supports that view. In light of AUZ18’s acceptance that the delegate who cancelled his visa was unaware of his concerns about the basis of his conviction, and the fact that there is no evidence that the conviction has been successfully appealed, that issue would not be a reason to quash the Assistant Minister’s decision made on 22 November 2016 not to revoke the cancellation decision.

18    My view that the correct visa was cancelled is reinforced by papers which AUZ18 forwarded to my chambers on 9 January 2019 which are referred to below. I note in particular, the fact that on 19 January 2009, AUZ18 signed a form withdrawing his application for a protection visa which followed the grant to him of a Resolution of Status visa. It is, ultimately, irrelevant what visa the Minister granted to AUZ18’s wife.

19    Included in the materials sent by AUZ18 to my chambers on 9 January 2018 is a copy of a temporary protection visa issued to him which was valid until 14 October 2008.

20    There is a copy of a letter dated 21 August 2008 from the Director, Protection Support and Process Improvement Section of the Department of Immigration and Citizenship (DIAC) to AUZ18 relevantly stating as follows:

Re: Information concerning your temporary Protection visa (TPV), which expires on 14 October 2008 and your eligibility to apply for a Resolution of Status (RoS) visa.

As you may be aware, the Minister for Immigration and Citizenship, Senator Chris Evans, recently announced the Government's decision to abolish TPVs. The new arrangements came into effect on 9 August 2008.

As a current holder of a TPV you may be given permanent residency through the grant of a RoS (subclass 851) visa, without the need for protection obligations to be reassessed, subject to normal health, character and security requirements being met.

If you are granted a RoS visa, you will be eligible to access the same benefits and entitlements as a permanent Protection visa holder. You will also be able to obtain a Convention Travel document to travel overseas and return to Australia, and sponsor your family through the Offshore Humanitarian program.

HOW TO APPLY

There are two ways that you can apply for a RoS visa.

l.    You may lodge a further Protection visa application by completing a form 866, paying the $30 application fee and submitting any other documentation required. You do not need to include claims for protection in Part C of your 866 application form, because the department will automatically consider your application to be for a RoS visa.

If you lodge your 866 application form before 14 October 2008, your TPV will not expire on that day but will remain in effect until a decision on the application is made. That means that your visa status and benefits such as Centrelink payments and work rights will continue while your application is being processed for the permanent visa. An 866 application form is available from any office of the department.

2.    The other way you can apply for a RoS visa is to complete a form 1364 and forward it to the department. There is no fee payable with this application. Please be aware, however, that if a decision on your RoS visa application is not made before 14 October 2008, your TPV will cease on that date. Entitlements, such as Centrelink payments and work rights, will also cease on that date. If this were to happen, you would need to apply for a Bridging visa to remain lawful in Australia until your permanent visa application is decided. A 1364 application form is available via the following link on the department's website http://www.immi.gov.au/allforms/application-forms/index.htm or from any office of the department.

21    There is a copy of a letter dated 1 September 2008 from AUZ18 to the Director, Protection Support and Process Improvement Section of DIAC dated 1 September 2008 in which AUZ18 says (as written):

I refer to you this letter just want to confirm the status of my visa application.

On 22ed August, I received your letter about my application of Resolution of Status (RoS) visa.

According the information provided by your letter, I had filled out the application form 866 and lodged it to the DIAC Sydney CBD office last Friday.

However, I had received a different message from the Sydney office, that I should filled out the form 1364 instead of 866.

…

Recently, the Department of Immigration issued the RoS visa program. By this opportunity I decided to submitted my wife’s and my application together to the Department of Immigration.

Through the understanding of the related content of application; I lodged the application for my wife as the member of the family unit (Form 866-D), who is in Australia now. But the officers in the Sydney office told us I should filled out form 1364, and at the same time they made the decision to grant two weeks BRIDGING VISA E to my wife.

22    There are pages from a visa application form which I take to be from the application for a protection visa made by AUZ18 and received by DIAC on 1 September 2008. Also included is part D of an application for a protection (Class XA) visa relating to AUZ18’s wife which was marked as received by DIAC on 1 September 2008. The form’s signature pages (under the heading “Applicant’s declaration”) dated 27 August 2008 appear to be the same as the complete form attached to AUZ18’s 6 June 2017 affidavit.

23    There is a copy of a note dated 2 September 2008 which appears to be an internal record of the DIAC. It encloses AUZ18’s letter dated 1 September 2018 and states that AUZ18 is a “TPV holder who has lodged an FPV. His wife has been encouraged to lodge a RoS 1364 Form”.

24    There is a copy of a three-page letter dated 13 September 2008 from DIAC to AUZ18 which relevantly states as follows:

This letter refers to your application for a further Protection visa, which was lodged on 1st September 2008. This application will automatically be processed for a Resolution of Status visa without the need to make a separate application.

Abolition of temporary Protection visas

As you may be aware, the Minister announced in mid-May 2008 the Government's decision to abolish subclass 785 temporary Protection visas (TPVs) and subclasses 451 and 447 temporary Humanitarian visas (THVs). The new arrangements came into effect on 9 August 2008.

Current holders of a TPV or THY will be able to have their status resolved permanently through the grant of a Resolution of Status (RoS) subclass 851 visa, without the need for protection obligations to be reassessed, subject to normal health, character and security requirements being met.

25    There is a visa application validity checklist: resolution of status (Class CD) visa form relating to AUZ18 which is signed by a delegate of the Minister for Immigration and Citizenship and dated 14 January 2009 which states:

5.    DECISION ON RESOLUTION OF STATUS (CLASS CD) VISA APPLICATION

I find that [AUZ18] has met all prescribed Migration Regulations, Schedule 2, criteria for the grant of a subclass 851 Resolution of Status visa. Accordingly, I grant [AUZ18] a Resolution of Status (Class CD), subclass 851 visa.

26    That document is followed by a document headed “Resolution of status (Class CD) visa decision record” to the same effect.

27    There is a document which appears to be an email sent on 14 January 2009 and is marked “DIAC in Confidence” which indicates that there was an outstanding investigation which had produced a decision bar preventing the case from progressing. It asked that the case officer who is a signatory to the previous two documents be advised when the bar is lifted or an estimation of how long it would take to finalise.

28    There is a document on DIAC’s letterhead which is stamped as issued on 19 January 2009 which indicates that AUZ18 was issued a temporary protection visa which did not allow him to travel and which came into effect on 14 October 2005 and ceased on 14 January 2009.

29    There is a letter dated 14 January 2009 on DIAC’s letterhead addressed to AUZ18 advising him of the issue of the visa. A copy of the visa is included with it. The letter says:

Notification of grant of a Resolution of Status (Class CD) Subclass 851 visa

This letter refers to your application for a Protection (Class XA) visa lodged on 01 September 2008.

As you may be aware, the Minister for Immigration and Citizenship, Senator Chris Evans, announced the Government's decision to abolish temporary Protection visas (TPV), and the creation of the Resolution of Status (RoS) (Class CD) subclass 851 visa. The new arrangements came into effect on 9 August 2008.

Your application for a Protection (Class XA) visa was therefore automatically considered as an application for a RoS visa.

I wish to advise that a decision has been made on this application and a RoS visa has been granted on 14 January 2009 to the applicant listed below:

Name:                 Previous visa held by applicant:

[AUZ18] ([DOB redacted])     Temporary Protection Visa (subclass 785)

About your visa

RoS visa holders are eligible to access the same benefits and entitlements as a permanent Protection visa holder. Details of some of the services accessible to permanent residents of Australia are provided in the attachment entitled Important Information.

Your immigration status

You currently hold a RoS visa and are now permanent residents of Australia.

30    There is a form on DIAC’s letterhead which appears to have been signed by AUZ18 on 19 January 2009 which says:

I hereby withdraw my application for a Protection (Class XA) visa, lodged on <<date>>.

31    Accordingly, I decline to re-open the orders made on 30 April 2018 and consider that I have no further jurisdiction in relation to the application on which the orders were based.

Associate

Dated:    4 February 2019