FEDERAL COURT OF AUSTRALIA

PHMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1776

ORDERS

THE COURT ORDERS THAT:

1.    The parties provide to the chambers of Justice Bromwich a draft agreed declaration, or failing that, competing draft versions of a declaration, in accordance with the reasons for judgment, within 7 days or such longer time as may be sought and allowed.

2.    The further amended originating application otherwise be dismissed.

3.    The first respondent pay the applicant’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    Section 500(1)(ba) of the Migration Act 1958 (Cth) provides for merits review by the second respondent, the Administrative Appeals Tribunal, of a decision under s 501CA(4) of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to revoke a decision to cancel a visa. Under s 500(6L), if an application is made to the Tribunal to review such a decision in relation to a person in the migration zone, and the Tribunal has not made a decision under any of ss 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1977 (Cth) (AAT Act) within 84 days after the person is notified of the delegate’s decision, the Tribunal is taken to have made a decision affirming the delegate’s decision.

2    Through administrative error, and not due to any fault on the part of the applicant, he was caught by s 500(6L) of the Migration Act, which operated to affirm a decision of a delegate of the Minster not to revoke the cancellation of his visa. The applicant is now represented by pro bono senior and junior counsel. The Court expresses appreciation for the assistance this afforded not just the applicant, but also the Court and indeed the Minister, in dealing with a most difficult situation.

Background

3    The applicant was the holder of a Class BS Subclass 801 Partner visa. On 12 June 2018, that visa was cancelled by a delegate of the Minister under s 501(3A) of the Migration Act, because the delegate was satisfied that the applicant did not pass the character test by reason of him having a substantial criminal record and serving a full-time sentence of imprisonment. On 16 July 2018, he applied to have that cancellation decision revoked under s 501CA(4), with one of the reasons advanced for revocation being that he feared significant harm if returned to China by being punished a second time for the offences he had committed in Australia, an outcome said to be permitted by Chinese law.

4    On 27 February 2019, another delegate decided not to revoke the cancellation decision. An email was sent to the applicant’s migration agent the same day, advising of that non-revocation decision. He was thereby taken to have been notified: see s 501G(3) of the Migration Act and regs 2.55(1)(b)(ii), 2.55(3)(d)(ii), 2.55(4) and 2.55(8) of the Migration Regulations 1994 (Cth)).

5    On 6 March 2019, the applicant applied to the Tribunal for merits review of the delegate’s non-revocation decision. As the applicant was in the migration zone, s 500(6L) applied to his application for merits review and thereby to the delegate’s decision. Section 500(6L) took effect because a decision was not made by the Tribunal within the required 84 days of the applicant being notified of the decision under review on 27 February 2019. The end of that 84 day period was midnight on Wednesday, 22 May 2019.

6    On 14 March 2019, at a case management telephone directions hearing, the Tribunal had correctly ascertained, with the agreement of the parties, that the 84 day period within which a decision had to be made expired on 22 May 2019. However, this deadline was incorrectly entered into the Tribunal computer system as expiring a week later, on 29 May 2019. The wrong date was then referred to at the end of the Tribunal hearing on 8 May 2019. Correspondence from the Tribunal registry, referred to in more detail below, suggested that the lawyers for the applicant and for the Minster had agreed with the later date at the hearing, but I do not read the hearing transcript as going that far. The better view is that the error in the date was simply not noticed by anyone present, not least because it was referred to in passing and is not, as it would have been heard, very dissimilar to the correct date a week earlier. However, this reference in the letter from the Tribunal registry suggests that the Tribunal, or at least its registry, viewed the parties as having somehow acquiesced in the error that was made. If that is so, I do not accept that there was any such acquiescence.

7    The Tribunal had completed preparing draft reasons for a decision to be made, after editing, in time for the incorrect deadline, but after the correct 22 May 2019 deadline. On 27 May 2019, before the decision was made and reasons published, the solicitor advocate who had appeared for the Minister at the Tribunal hearing rang the Sydney registry, pointing out that the last date for publication of the decision had passed on 22 May 2019. The same day, the Tribunal registry sent a letter to the Minister’s solicitors describing what had happened as summarised above and concluding in the final two paragraphs as follows:

The presiding Tribunal Member completed his draft Reasons for Decision in this matter on Friday, 24 May 2019. That draft was submitted for editing in order for the decision to be entered and published on or prior to 29 May 2019. A signed and sealed copy of the Reasons for Decision bearing today’s date is also attached.

The Tribunal apologies [sic] for and otherwise acknowledges the abovementioned administrative oversight.

8    The letter enclosed the last page of the transcript of the 8 May 2019 hearing and what looked like and was described as “DECISION AND REASONS FOR DECISION” dated 27 May 2019 to which the seal of the Tribunal was affixed with the following being inserted: “[SGD]”. This was the means by which, ordinarily, a published copy of Tribunal reasons signify that the original copy had been signed by the relevant Tribunal member. That was confirmed at the hearing by the tender and admission into evidence of the original of the document, signed by a senior member of the Tribunal (27 May 2019 document). The face and contents of the 27 May 2019 document was in the usual form of a Tribunal decision, containing the usual sort of reasoning, and concluding with a statement that the decision under review was affirmed. The 27 May 2019 document contains no reference to s 500(6L), such that, on its face, it, and only it, is the basis for the delegate’s decision being affirmed.

9    There is no dispute as to the legal operation of s 500(6L) in deeming the delegate’s decision to be affirmed by the effluxion of time, nor that the decision deadline was 22 May 2019. However, the applicant now wishes to apply for a protection visa substantially based upon the double punishment argument that he relied upon before the Tribunal, and seeks to do so in circumstances where the reasons in the 27 May 2019 document are not taken into account, or at least not treated as being an actual decision with the imprimatur of the Tribunal and used accordingly. It is common ground that there is no impediment to the applicant applying for a protection visa, but he has apparently not yet done so because he wishes first to resolve the status of the 27 May 2019 document and the use to which it can be put, so that the framework into which any such application would be determined is known by him. That is an inherently reasonable stance for the applicant to take.

The 27 May 2019 document could not constitute a decision by the Tribunal

10    The parties are in agreement that, if the Tribunal was, by the 27 May 2019 document, purporting to make a decision under s 43 of the AAT Act, it had no power to do so. That agreed position is undoubtedly correct, with no other conclusion being possible, especially given that there was no suggestion that the Tribunal had already made a decision under any of ss 42A, 42B, 42C or 43 of the AAT Act on or before 22 May 2019.

11    By the operation of s 500(6L) of the Migration Act, at the end of the 84 day period, being midnight on 22 May 2019, the decision of the delegate was therefore affirmed. This put an end to any power on the part of the Tribunal to make any decision about the applicant’s merits review application. The 27 May 2019 document was therefore incapable of constituting any decision by the Tribunal. However, the applicant seeks more than acknowledgment of this in his application, which I will now turn to.

The relief sought

12    By a further amended originating application, filed after the hearing, by consent, to reflect in full the arguments advanced, the applicant seeks the following relief:

[1]    A writ of prohibition preventing the First Respondent from acting, or taking any steps in reliance, on the decision of the Administrative Appeals Tribunal (Tribunal) (Senior Member Tavoularis) made on 27 May 2019.

[2]    A writ of certiorari quashing the decision of the Tribunal made on 27 May 2019.

[3]    A declaration that the decision of the Tribunal made on 27 May 2019, and the reasons for decision given by the Tribunal, were made without power and are of no effect.

[4]    An injunction restraining the Respondents from acting upon the decision of the Tribunal made on 27 May 2019.

13    The Minister relies upon a notice of objection to competency dated 2 August 2019, albeit that in submissions before the Court the scope of that contention narrowed somewhat. In substance, the Minister contends that this proceeding is incompetent by reason of this Court not having jurisdiction, unless, as the applicant submits, the 27 May 2019 document constitutes or contains a “purported privative clause decision” within the meaning given to that term in s 5E of the Migration Act.

Was the 27 May 2019 document a “purported privative clause decision”?

14    The Minister, appropriately, did not press for a conclusion one way or the other as to whether the 27 May 2019 document was a “purported privative clause decision”, but rather sought to assist the Court with submissions as to the considerations to be taken into account in making that determination, and what the consequences would be as to the jurisdiction of the Court. The Minister pointed to certain lesser features that tended against the conclusion that the Tribunal was purporting to make a decision.

15    The question for determination is whether the definition in s 5E is met. That section provides as follows (emphasis added):

5E    Meaning of purported privative clause decision

(1)    In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

(a)    a failure to exercise jurisdiction; or

(b)    an excess of jurisdiction;

in the making of the decision.

(2)    In this section, decision includes anything listed in subsection 474(3).

16    The applicant relies upon the following features of the 27 May 2019 document, and its surrounding circumstances, including the events described in the 27 May 2019 covering letter from the Tribunal registry and the contents of that letter itself:

(1)    viewed globally, it has all the ostensible features or hallmarks of the making of a final decision by the Tribunal to affirm, on the merits and pursuant to s 43(1) of the AAT Act, the delegate’s non-revocation decision;

(2)    it is signed by the senior member and his associate;

(3)    it describes evidence and submissions and contains reasoned intermediate conclusions;

(4)    it expresses a conclusion in affirming the delegate’s decision, which is strongly indicative of the purported exercise of power;

(5)    its contents therefore comprise a considered and reasoned purported decision;

(6)    the seal of the Tribunal was affixed to it in accordance with a direction made by the first President of the Tribunal, Justice Brennan, on 14 October 1976, which is still in force;

(7)    it was published on the internet, in accordance with a policy as to the publication of decisions issued by the President of the Tribunal, Justice Thomas, with a title and medium neutral citation;

(8)    there is nothing in the covering letter from the Tribunal registry to suggest that the 27 May 2019 document was a draft or to be regarded as anything other than a decision of the Tribunal, and there is nothing on its face to indicate that;

(9)    the Tribunal, or at least the registry, viewed the failure to correct the reference to 29 May 2019 at the end of the hearing as constituting some kind of acquiescence in the Tribunal having a later decision deadline (a proposition that I have rejected, but is nonetheless relevant).

17    The applicant submits that, in all the circumstances, the 27 May 2019 document is, in accordance with s 5E, “a decision purportedly made … under the [Migration Act] … that would be a privative clause decision if there were not … an excess of jurisdiction … in the making of the decision”. That is, this was in every respect a decision of the Tribunal, save for the operation of s 500(6L) making this in excess of its jurisdiction.

18    The applicant’s submissions should be accepted. The combination of the above features, and the fact that these steps were taken despite the Tribunal being on notice that the s 500(6L) deadline had passed, leads me to infer and conclude on all of the evidence that the Tribunal was, on the balance of probabilities, for some undisclosed reason not satisfied that the administrative error leading to exceeding the deadline would deprive it of jurisdiction to make a decision, and therefore decided that it could and should proceed to make that decision. While it is possible that this was only done to indicate that there had not been any injustice occasioned by the failure to make the decision in time, because the result was the same, that explanation can only be regarded as a remote possibility because that could have been adequately conveyed by much less formal means than a published decision and reasons, including in the text of the covering letter, falling well short of taking all the steps that would have been taken had 29 May 2019 been the correct deadline. The formality indicates that the Tribunal had decided, despite s 500(6L), which was not referred to in terms, that it could and should nonetheless proceed to make its decision. In my view, the Tribunal did purport to exercise the power to affirm the delegate’s non-revocation decision, despite plainly having no jurisdiction to do so.

19    I am therefore satisfied that this Court has jurisdiction to entertain this proceeding as being the purported exercise of power in relation to a purported privative clause decision: see s 476A(1)(b) of the Migration Act, read with ss 5E, 474(2) and 474(3)(i). For the balance of these reasons, I will refer to the 27 May 2019 document as the Tribunal’s purported decision.

Certiorari

20    The Minister objects to the grant of certiorari on practical and legal grounds. The practical objection is that the Minister has made it clear that he has no intention of acting upon, or taking any steps in reliance upon, the Tribunal’s purported decision. The legal objection is that the decision cannot have any legal effect because of the operation of s 500(6L) of the Migration Act. That may be so, but it does not address the applicant’s concern that the reasoning in the decision, especially going to the issue raised before the Tribunal and intended to be raised again as part of the grounds in support of the grant of a protection visa, contains adverse credit and other findings that may be used in the same way as a valid decision and reasons.

21    The applicant is concerned that the nuanced difference between the Tribunal’s purported decision, and the actual decision which it purports to be, would be lost due to the two documents being indistinguishable in content and appearance, and therefore at risk of being lost in the protection visa decision-making process. He is concerned that there is a real likelihood, as a matter of logic rather than evidence, that the Tribunal’s purported decision will be treated as a formal determination of his review application on the merits, in effect giving it force and effect that would otherwise be lacking due to the decision deemed under s 500(6L). That fear is said to be particularly acute because the findings made by the Tribunal are highly injurious to his credit and reputation, especially as doubt was cast on his bona fides and the veracity of the fears he has expressed and intends to rely upon. He is concerned with suffering real and actual prejudice unless this Court takes steps to prevent that occurring, or at least reducing its impact. He submits that, because the Tribunal’s purported decision was an attempt to exercise power in order to affirm the delegate’s decision, that purported decision has a purported legal effect and consequence, and is highly likely to be taken to be the formal exercise of power.

22    The Minister counters this approach by pointing out that, for certiorari to be available in the first place, the purported decision must have an actual legal effect or legal consequence, as was made clear in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 580.3. Just what the legal effect or consequence might be of a decision made without power depends on the statutory context, as explained by Gageler J in New South Wales v Kable [2013] HCA 26; 252 CLR 118 at [52] (footnotes omitted):

Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a “nullity” in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.

23    The Minister points out that the context here is confined and reasonably explicit: because of the operation of s 500(6L), the Tribunal’s decision could never have any such legal effect or consequences. The Tribunal’s purported decision had no actual legal effect or consequences, either in the past, or that could reasonably be anticipated in the future. An impact on reputation was expressly found not to have that character in Ainsworth at 581, leading to the consideration of declaratory relief.

24    The Minister further submits that it is not enough for certiorari that the Tribunal’s purported decision may in some way influence the exercise of power in relation to the intended protection visa application. Rather, the applicant is required to demonstrate that such a decision maker is bound to consider or adopt the Tribunal’s purported decision, citing Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480 at [41] and Hot Holdings Pty Limited v Creasy [1996] HCA 44; 185 CLR 149 at 164-5. In Creasy, certiorari was found (by majority) to lie because the decision-maker was characterised as being obliged to take certain recommendations into account. Failing such an obligation being present, certiorari would not lie.

25    The Minister’s submission must be accepted. Section 65 of the Migration Act, concerning the decision to grant or refuse to grant a visa, does not give rise to any obligation to consider the Tribunal’s purported decision. It is not enough to identify a purported legal effect or consequence. As the quote from Gageler J in Kable reproduced above makes clear, reinforced by Wingfoot and Creasy, something must have been done, or will be done, which has that legal dimension, even if it flowed, or would flow, from foundations of sand. Indeed, the need for certiorari can be seen to flow from the need to undo what has taken place in reliance on a decision that was no decision at all, or to prevent such reliance taking place if the purported decision is not quashed. That has not happened here; nor conceivably will it happen. The application for certiorari must be refused.

Prohibition or injunction

26    As the Minister points out, the same reasoning must apply to prohibition as applies to certiorari. In the absence of any basis for supposing that the Tribunal’s purported decision will be treated as legally binding in some way – and the applicant’s case does not go quite that far, asserting misuse of the reasoning and outcome, rather than the direct application of that decision in the sense of being legally determinative – there is no proper basis for the grant of prohibition either. That also avoids the substantial difficulty in crafting a meaningful writ of prohibition. The relief sought is cast in terms of preventing the Minister from acting or taking any steps in reliance upon the Tribunal’s purported decision, but plainly no such direct act or step could validly be taken. The application for prohibition must therefore be refused.

27    While an injunction does not have the jurisdictional limitations that confine prohibition, there must still be established a prima facie case that the Minister is intending to act or take steps in reliance upon the Tribunal’s purported decision as though it were an actual decision. There is nothing to indicate that is so. The application for an injunction must therefore be refused.

Declaration

28    The Minister accepts that the position for declaratory relief may be different to that which prevails for certiorari, and thus for prohibition, and in practical terms, for an injunction, because the lower threshold of foreseeable consequences identified in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [103], noting also Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42; and Gardner v Dairy Industry Authority (NSW) (1977) 18 ALR 55. However, the Minister emphasises that it is for the applicant to satisfy the Court that even this lower threshold is met.

29    The Minister relies upon Ainsworth at 582, where it was stated that a declaration is “confined by the considerations that mark out the boundaries of judicial power”. In that case, a standing Commission of inquiry prepared a highly critical and damaging report which was found to have been prepared without complying with the rules of procedural fairness. That was so despite the Commission not having any power to implement its recommendations. While certiorari did not lie because of the absence of any legal effect or consequences directly flowing from the report, the subject of the report had a real and legitimate interest in obtaining a declaration. That was because of the harm caused by the report itself, which was prepared without regard to procedural fairness, then tabled in the Queensland parliament, attracting the associated immunities and privileges. As the plurality observed in Ainsworth (at 582.3):

The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission’s duty of fairness. A report has been made and delivered under s. 2.18 of the Act. That report has already had practical consequences for the appellants’ reputations. For all that is known, those consequences may extend well into the future. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done.

30    The Minister acknowledges that the power to grant declaratory relief cannot and should not be fettered by prescriptive rules, citing again Plaintiff M61 at [103]. However, the Minister seeks to distinguish Ainsworth upon the basis of this case involving publication of the decision in question under a pseudonym, rather than an enormously damaging public document. It may be observed that the above passage from Ainsworth, by referring to consequences that may extend well into the future, does not go so far as to require certainty of an adverse outcome before a declaration can be made. An appropriate declaration may be preventative of something that is reasonably predictable, noting that the present circumstances are materially different from Ainsworth in which harm had already been done, and the live issue was how long it would endure for.

31    To the extent that the applicant relies upon any analogy with Plaintiff M61, the Minister again points to salient differences in the facts. In Plaintiff M61, while the Minister could not be compelled to consider the exercise of powers permitting an otherwise proscribed protection visa application to be made, the evidence established that this was in fact going to take place in many cases, making consideration of the impugned reasoning a real possibility. By contrast, the Minister submits in this case that, if the applicant does make a valid protection visa application, s 65 will compel the Minister or his delegate to consider it.

32    The Minister further reasons that the applicant does not appear to be concerned that the specific error made by the Tribunal will be repeated, and that s 500(6L) could not arise in the determination of such an application. The Minister characterised as merely hypothetical and speculative that the Minister, his delegate or a future Tribunal may have regard to the comments or views expressed in the Tribunal’s purported decision. This is said to fail to be based on a concrete situation, citing Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [48], which followed an examination by their Honours of academic writing on the topic of declarations.

33    While the points of distinction between this case and both Ainsworth and Plaintiff M61 are well-made by the Minister, the applicant’s case is narrower and more specific than those cases. In substance, the applicant points to the realistic likelihood that, upon him applying for a protection visa, and seeking to raise certain issues that formed part of his case for merits review of the delegate’s non-revocation decision, resort is, rationally, likely to be had to the Tribunal’s purported decision, which on its face is indistinguishable from a valid decision. He therefore reasons that there is a real risk that both the purported Tribunal decision, and the reasons given for reaching it, including the adverse findings made about him, carry the real and appreciable risk that they will be given the weight that they should not as a valid Tribunal decision. This is readily foreseeable and far from fanciful in light of the objective features of the Tribunal’s purported decision which were sufficient to enliven this Court’s jurisdiction. Necessarily, this is in a circumstance in which the conclusion reached, and the reasons for it, have not been the subject of any judicial review process.

34    After weighing the competing arguments, I consider that the risk that the applicant identifies is an obvious, practical and real one, and that this is not met by the assurances given from the Bar table by senior counsel for the Minister. I have already concluded that there is no proper basis for preventing, by way of prohibition or injunction, a future decision-maker reading and considering the Tribunal’s purported decision, subject to affording the applicant the benefit of procedural fairness. There is nothing to stop such a decision-maker taking some aspect into account, for example, to compare the applicant’s prior factual account of the events that he wishes to rely upon in support of his foreshadowed protection visa application. That history of the applicant’s interaction with the Department and the Tribunal cannot be erased, or quarantined as though it never occurred. Indeed, the applicant may ultimately seek to rely upon some aspect of that interaction and how it was understood, for example as a claim that is more credible because it has been maintained over time. It may be quite artificial for consideration to be given to evidence and submissions before the Tribunal, yet to close the door on considering some aspect of the purported decision itself as a means of understanding how something was said or otherwise presented.

35    The danger lies in the weight that might be given to reasons in support of an inoperable and therefore invalid decision. I consider that the form and content of the Tribunal’s purported decision carries a real and sufficient risk of being at least subliminally misused upon the basis that it is the same as a valid decision which operates to affirm the delegate’s non-revocation decision and given undue weight accordingly. In those circumstances, it is appropriate to make a limited declaration to the effect that the decision was made without power due to the operation of s 500(6L) of the Migration Act and is of no legal force or effect in relation to the status of the delegate’s non-revocation decision, which was affirmed only by force of that provision. A declaration to that effect sufficiently balances the competing considerations.

Conclusion

36    The application for a declaration should be granted, but in the more limited form described above. The parties should endeavour to reach agreement on the terms of the declaration, but failing that should provide competing versions for adjudication in chambers.

37    I see no reason why costs should not follow the event. The Minister must pay the applicant’s costs.

Associate:

Dated:    31 October 2019