FEDERAL COURT OF AUSTRALIA

EPU19 v Minister for Home Affairs [2020] FCA 541

ORDERS

THE COURT ORDERS THAT:

1.    Order 2 of the orders made on 27 February 2020 requiring the respondent to determine the matter according to law be varied to instead require the respondent to determine whether or not to grant a Protection (Class XA) visa to the applicant in respect of his protection visa application made on 3 October 2017 according to law on or before 8 May 2020.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

STEWARD J.:

1    The applicant is 18 years of age. In 2012, he arrived in Australia from the Lebanese Republic. In 2017, he applied for a Protection (Class XA) visa. This was refused because the delegate was not satisfied that the applicant was a refugee or that there was a real risk that the applicant would suffer significant harm if returned to the Lebanese Republic. This decision was reviewed by the Administrative Appeals Tribunal (the “Tribunal”). In 2018, it decided that the applicant was a person in respect of whom Australia has protection obligations under s. 36(2)(a) of the Migration Act 1958 (Cth.) (the “Act”). In 2019, the respondent (the “Minister”) personally made a decision under s. 501(1) of the Act to refuse to grant the protection visa on the basis that the applicant did not pass the “character test”. The applicant sought judicial review of that decision in this Court.

2    In February 2020, the Minister conceded that the law required his decision to be quashed. The reason for the Minister’s concession was that he had failed to respond to a substantial, clearly articulated argument that the applicant had relied upon.

3    On 27 February 2020, at a hearing before me, there was a dispute about the form of final relief. In that respect, I was referred to the recent decision of Rares J. in BAL19 v. Minister for Home Affairs [2019] FCA 2189. The applicant submitted that having regard to the expression of law in that case, it is not open to the Minister to make another decision under s. 501. It followed, it was said, that the applicant, having met the criteria in s. 36 of the Act, was entitled to be granted a protection visa (subject to satisfaction of the health criteria). In contrast, the Minister submitted that BAL19 was wrongly decided. He is appealing its correctness to the Full Court of this Court. But in the meantime, he accepted that he is bound by it: Federal Commissioner of Taxation v. Indooroopilly Children Services (Qld.) Pty Ltd (2007) 158 F.C.R. 325.

4    That concession, in my view, was correctly made given the present state of the law. Nevertheless, the applicant, concerned that BAL19 might be shortly found to be incorrectly decided, wanted the Court to make an order requiring the Minister to issue his protection visa pursuant to s. 65 of the Act. I declined to make such an order. Instead, I made the more usual order in the nature of mandamus for the Minister to determine the matter according to law. I imposed no time limit for the performance of this duty. There was no reason for me to believe that the Minister would not discharge his duty promptly.

5    In the result, I made the following orders:

 1.    The decision made by the respondent on 15 October 2019 be quashed.

2.    An order in the nature of mandamus is made requiring the respondent to determine the matter according to law.

 3.    The respondent pay the applicant’s costs.

 4.    There be liberty to apply on three days’ notice.

The Interlocutory Application

6    The Minister has yet to decide whether to grant the applicant the protection visa he has long sought. On 30 March 2020, the applicant filed an “interlocutory application” seeking an order in the nature of peremptory mandamus. This is the relief he sought:

1.    There be an order in the nature of peremptory mandamus directing the Respondent to grant the Applicant a Protection (Class XA) visa forthwith.

2.    The Respondent pay the Applicant’s costs of this application on an indemnity basis, to be agreed or assessed.

3.    Such other or further orders as the Court thinks fit, including orders pursuant to the powers of the Court under its inherent jurisdiction or rule 41.08 of the Federal Court Rules 2011.

7    The application was supported by an affidavit affirmed by Mr. Hanson, who is a lawyer employed by Victoria Legal Aid.

8    It may be doubted whether the application was interlocutory in nature. The orders made in February were final in nature (but c.f. Blakey v. Latham (1889) 43 Ch. D. 23). Nonetheless, the Court is not yet functus officio. In Sebastian v. State of Western Australia [2008] FCA 926, Gilmour J. well summarised the applicable principles at [26]-[27]:

… Common Law Superior Courts of record do not become functus officio merely upon the making and entry of the judgment or order that determines the rights of the parties: they retain power in the same suit to make supplemental orders not limited to orders in aid of the enforcement and working out of the order determining the rights of the parties. So observed Drummond J in Australian Competition & Consumer Commission v The Shell Company of Australia Limited (1997) 72 FCR 386 at 395. His Honour also observed that this Court’s ancillary powers flow from authority under ss 22 and 23 of the FCA Act to resolve the whole of the controversy between the parties.

This Court has power to make supplemental orders and the exercise of this jurisdiction, while no doubt requiring caution, is not limited to the making of orders in aid of the enforcement and working out of original orders, although to do so may be appropriate: Caboolture Park Shopping Centre Pty Ltd (in Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 234-236. These principles were reaffirmed recently by a Full Court in Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47.

9    I gratefully adopt what Gilmour J. has said. Accordingly, I have jurisdiction to make supplemental orders in aid of enforcement of the orders I made in February 2020.

10    On 17 April 2020, following a hearing held by telephone due to the COVID-19 pandemic, I made the following orders:

1.    Order 2 of the orders made on 27 February 2020 requiring the respondent to determine the matter according to law be varied to instead require the respondent to determine whether or not to grant a Protection (Class XA) visa to the applicant in respect of his protection visa application made on 3 October 2017 according to law on or before 8 May 2020.

2.    There be no order as to costs.

11    What follows are my reasons for making these orders.

The Affidavits of Ms. Radjenovic

12    I note that the Minister relied upon two affidavits of Ms. Radjenovic sworn on 3 April 2020 and 17 April 2020. She is the Director of the International Obligations and Special Humanitarian Program Section within the Department of Home Affairs. She is not the delegate with responsibility for considering whether to grant the applicant a protection visa. She gave evidence of the history of the processing of the applicant’s visa application since February 2020.

13    In the Minister’s written submissions, that chronology of events was summarised as follows:

(a)    On 27 February 2020, the relevant stakeholders within the Minister’s Department were advised that the Court had made an order in the nature of mandamus, requiring the Minister to determine the matter according to law.

(b)    On 27 February 2020, the Department sought urgent legal advice from counsel about the implications of the Court’s orders and such advice was provided on 5 March 2020.

(c)    On 10 March 2020, the International Obligations and Special Humanitarian Program (SHP) Section within the Department confirmed that the applicant had previously declined his consent to undertake detention induction medical checks.

(d)    The applicant was therefore required to undertake full medical and blood tests which included a medical examination, chest x-ray and tests for Hepatitis B, Hepatitis C, HIV and Syphilis, given that the detention induction medical checks are routinely relied upon as health assessments for detainees who have applied for protection visas.

(e)    On 11 March 2020 the applicant had blood taken and the blood was sent to International Health and Medical Services (IHMS) for testing.

(f)    On 13 March 2020, the applicant underwent an x-ray examination of his chest.

(g)    On 12 March 2020, the Minister’s solicitor advised the applicant’s solicitor that IHMS required an approximate processing time of three to four days for medical tests and that it was anticipated that IHMS would receive the test results by close of business on 16 March 2020.

(h)    On 16 March 2020, IHMS completed the testing with a recommendation that the applicant satisfied the health criterion.

(i)    On 17 March 2020, the Legal Opinions Section within the Department provided advice to the Legal Division and Protection Caseload Resolution Section of the Department concerning the previous delegate’s assessment of the application of s 36(1C) of the Act.

(j)    On 20 March 2020, further advice was sought and obtained from counsel.

(k)    Between 23 and 26 March 2020, the applicant’s case was allocated for an assessment of the application of s 36(1C) of the Act.

(l)    On 26 March 2020, the Minister’s solicitor advised the applicant’s solicitor of the outcome of the health assessment and brought to their attention that an assessment of the application of s 36(1C) of the Act was underway.

(m)    Since 26 March 2020, the Protection Obligations Decision maker has been considering information relevant to an assessment of the application of s 36(1C). The decision maker is exclusively dedicated to the applicant’s case.

(n)    Further information may need to be sought or obtained to complete the s 36(1C) assessment.

(Footnotes omitted.)

14    Each of the foregoing asserted facts had been cross-referenced in the written submissions to paragraphs in the first affidavit of Ms. Radjenovic or to the affidavit of Mr. Hanson.

15    I note that the applicant attacked the admissibility of key paragraphs in the first affidavit of Ms. Radjenovic. The following paragraph was said to be inadmissible because it was said to be “speculative and opinion”:

16.    It is difficult to provide a firm date for completion of this assessment due to the following matters:

16.1.    the current decision maker is required to independently review all relevant material to satisfy themselves that s 36(1C) is or is not met, which is a complex and time-consuming exercise;

16.2.    a potential need to seek or obtain further information to complete the s 36(1C) assessment;

16.3.    any natural justice obligations which may arise in the course of the assessment may vary the timeframe for the completion of the assessment; and

16.4.    there are case management processes to ensure that the assessment is legally sound. These processes also affect the timeframe for the completion of the assessment.

16    Paragraph 15 in the first affidavit of Ms. Radjenovic was attacked on the ground that it was inadmissible hearsay. Paragraph 15 stated:

Between 26 March and 3 April 2020, the Protection Obligations Decision maker (PODM) has been considering information relevant to an assessment of the application of s 36(1C). The direct manager of the PODM has informed me that the decision maker is actively managing and exclusively dedicated to the case as a priority.

17    I note further that the applicant objected to the admissibility of the second affidavit of Ms. Radjenovic in its entirety. It was filed and served only about 30 minutes before the hearing. There was also a general complaint that the Minister had not called the delegate herself or himself to give evidence.

18    The Minister submitted that these complaints were misconceived because the applicant had made an interlocutory application: s. 75 of the Evidence Act 1995 (Cth.). Assuming that contention to be correct – that is, assuming that this is an interlocutory proceeding – I nonetheless treated the contents of para. 16 as a submission. Nothing turns upon whether it is admitted as evidence or not. As to para. 15, it is plainly hearsay, and even assuming this to be an interlocutory proceeding, I would still give it little weight. However, in the circumstances of this case, I am willing to infer that there is a decision-maker and that he or she is considering the applicant’s protection visa application (although how actively he or she was doing this remained unclear). I would not otherwise admit into evidence the second affidavit of Ms. Radjenovic.

19    In my view, I can make the following general findings:

(a)    that there was a short delay in securing the necessary medical checks;

(b)    there has been further delay because the Minister considers that he must now determine whether the applicant satisfies the criterion contained in s. 36(1C) of the Act, which provides:

A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

   (a)    is a danger to Australia's security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

In that respect there is clear evidence that much of that work has already taken place and that a view about its application has already been formed on at least two prior occasions (see below); and

(c)    I infer, in all the circumstances, that the Minister’s delegate has otherwise been progressing the applicant’s claim, but at a pace that can only be described as bureaucratic in nature.

20    I have otherwise more generally taken into account the non-appearance of the delegate in determining whether or not to accept Ms. Radjenovic’s evidence. The matters to which she generally deposed seemed to me to be inherently likely to have occurred. The chronology of events she described followed what I would expect from a careful bureaucracy. They included the seeking of legal advice, acting upon that advice and the taking of steps to review materials. However, for the reasons set out below, there is a sound basis to impose a deadline on the discharge of the Minister’s duty under s. 65 of the Act.

The Affidavit of Mr. Hanson

21    This affidavit set out the history of Mr. Hanson’s dealings with the Minister’s lawyers since February 2020. It also set out some internal departmental documents obtained from a freedom of information application that had been made. These were said to demonstrate that a delegate of the Minister had already made a “decision” that the applicant satisfied the criterion in s. 36(1C) of the Act (after the matter had been remitted by the Tribunal in March 2018). In one email, dated 8 June 2018, the following appeared:

Dear SQC Team

Please find attached the draft s 36(1C)(b) PV decision [for the applicant].

…

In summary, when considering s 36(1C)(b), we found that the applicant has not been convicted by a final judgement of a particularly serious crime. We also found that the offences for which he was found guilty and sentences, could not be considered to be ‘particularly serious’.

(Emphasis added and errors in original.)

22    In another email, dated 20 June 2018, the following appeared:

Hello VACCU

Please be aware that this matter involves a minor in detention and is of considerable interest to the senior executive. We would therefore appreciate it if you would give it your highest priority.

The matter was remitted for consideration under s 36(1C). I assessed that the applicant is not a danger to the community and the draft decision record is attached …

(Emphasis added.)

23    Approximately a month after the latter email was sent, it would appear that the Minister’s delegate again considered the criterion in s. 36(1C) and formed a view which he or she committed to writing on 26 July 2018. That document records the following:

Section 36(1 A) of the Act provides that an Applicant for a Protection visa must satisfy both the criteria in s 36(1 B) and s 36(1 C) and at least one of the criteria in s 36(2). I find that the Applicant has met criteria in s36(1B) and s36(1C).

(Errors in original.)

24    These documents, considered in combination, support an inference that a final view had been previously made concerning the application of s. 36(1C) to the applicant prior to the Minister making his decision under s. 501 on 15 October 2019. The applicant characterised the formation of that view as a “decision” said to be “conduct preparatory to the making of a decision”, and which constituted an “inquiry” for the purposes of the definition of a “privative clause decision” in s. 474 of the Act.

The Submissions of the Parties

25    For reasons which will hopefully become clear, it is unnecessary for me to summarise the submissions of the parties in any detail. They raised a number of complex and important issues. It has not been necessary to decide all of those matters on this occasion.

The applicant’s submissions

26    The applicant submitted that the Minister had failed to comply with the orders made in February and that this now justified the making of an order in the nature of peremptory mandamus directing the Minister to issue a protection visa. The applicant relied upon the expression of the test for peremptory mandamus as described by the High Court in Plaintiff S297/2013 v. Minister for Immigration and Border Protection (2015) 255 C.L.R. 231. In that case, the High Court had previously issued a writ of mandamus. The Minister’s return to that writ, namely his decision to refuse the grant of a visa pursuant to s. 65 of the Act, was found to be “legally insufficient”. At 247-248 [39], the Court said:

… The issue of a peremptory mandamus is to enforce compliance with the writ which the Court had directed to issue in resolution of the matter then pending in the Court. A peremptory mandamus commands performance of the duty which was the subject of the writ but remains unperformed. What is important is that the Minister’s return to the writ of mandamus was legally insufficient. It is that insufficiency which grounds the peremptory mandamus. As the editors of the first edition of Halsbury’s Laws of England said: “where the applicant obtains judgment upon the argument of a point of law raised in answer to a return or other pleading or after pleading to the return, the applicant is entitled forthwith to a peremptory writ of mandamus to enforce the command contained in the original writ” (emphasis added; footnotes omitted).

(Footnotes omitted.)

27    The High Court observed that the previous practice had been that a writ of peremptory mandamus needed to follow the exact words of the original writ of mandamus. This did not occur in Plaintiff S297. The Court explained why at 249 [44]-[45] as follows:

… the practice to be adopted in this Court must accord with s 32 of the Judiciary Act 1903 (Cth) and its provision that this Court, in the exercise of its original jurisdiction, “shall have power to grant, and shall grant, either absolutely or on such terms and conditions as are just, all such remedies whatsoever as any of the parties thereto are entitled ... so that as far as possible all matters in controversy between the parties regarding the cause of action ... may be completely and finally determined” (emphasis added).

The requirement that the Court provide such remedies as will finally quell the controversy between the parties permits, and in this case requires, the issue of a peremptory mandamus that does not follow the wording of the original writ. That course is required because the Minister gave only the one (legally infirm) reason for his refusal of the visa which the plaintiff sought and it is agreed that, apart from the cl 866.226 criterion, the other criteria prescribed for the visa by the Act and the Regulations had been satisfied.

(Footnote omitted.)

28    Section 32 of the Judiciary Act 1903 (Cth.) (the “Judiciary Act”) is equivalent to s. 22 of the Federal Court of Australia Act 1976 (Cth.) (the “Federal Court of Australia Act”) which is in the following form:

22    Determination of matter completely and finally

The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

29    Ultimately, the relevant order made by the High Court in Plaintiff S297 was as follows:

A peremptory writ of mandamus should issue commanding the first defendant to grant the plaintiff a permanent protection visa forthwith.

30    A similar order is sought here by the applicant. He contends that the Minister’s response to the orders made by the Court in February was deficient because a “decision” concerning s. 36(1C) had already been made, and the Minister was now functus officio in relation to that “decision”. Moreover, it was said, there was nothing in the Act which permitted the Minister to re-open his earlier conclusion. Delay arising from a fresh consideration of s. 36(1C) was, accordingly, unjustified. As a result, the Minister’s compliance with the order in the nature of mandamus was deficient.

31    The applicant also submitted that the Minister’s delay was a contrivance designed to defer the making of a decision under s. 65 until after BAL19 is overruled, as the Minister hopes, by the Full Court of this Court. With respect, that submission is not supported by any direct evidence, and I would not infer the existence of such a design from what the Minister has done so far.

32    Notwithstanding the terms of s. 476A of the Act, the applicant further submitted that I had jurisdiction to order the issue of the protection visa pursuant to s. 65 of the Act. Section 476A(1) and (2) are in these terms:

476    Limited jurisdiction of the Federal Court

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a)    the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or

(b)    the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c)    the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or

(d)    the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

Note:    An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975:

(a)    a privative clause decision;

(b)    a purported privative clause decision;

(c)    an AAT Act migration decision.

In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a), (b) or (c) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975.

The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non-privative clause decisions.

(2)    Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

33    The applicant submitted that an order requiring the issue of a visa pursuant to s. 65 of the Act was “in relation to” the Court’s jurisdiction arising from the personal decision made by the Minister under s. 501. That jurisdiction should be construed, it was said, liberally. The applicant cited for that proposition the judgment of Gaudron J. in Knight v. F.P. Special Assets Ltd (1992) 174 C.L.R. 178 at 205. He also relied on s. 32 of the Judiciary Act or, if applicable, the terms of s. 22 of the Federal Court of Australia Act set out above (it is not necessary to decide which provision applies having regard to s. 476A(2) of the Act).

34    The applicant also submitted that if I were to decide that I did not have the power to order the issue of a visa pursuant to s. 65, I should instead transfer the proceeding to the Federal Circuit Court. This was because the interests of the administration of justice “require that some court be able to enforce mandamus”.

35    The applicant finally sought an order for indemnity costs. He submitted that the Minister’s attempt to delay compliance with the Court’s orders, pending appellate review of BAL19, was “high-handed”. I respectfully disagree with that observation. As I have already mentioned, there is no evidence to support an inference that the Minister has misbehaved in this way.

The Minister’s submissions

36    The Minister disagreed with the proposition that he had not complied with the orders made in February 2020. Rather, he was and is still in the process of complying with them. The application for peremptory mandamus was thus misconceived.

37    The Minister distinguished Plaintiff S297 on the following bases:

(a)    unlike the original orders made in Plaintiff S297, the orders made by the Court here in February 2020 did not impose any time limit; and

(b)    again, unlike the circumstances in Plaintiff S297, the Minister has not yet made any decision under s. 65. He is continuing to comply with the orders as part of his ongoing assessment of s. 36(1C).

38    As to the functus officio issue, the Minister disagreed with the applicant’s characterisation of the conclusion that had been formed about the application of s. 36(1C) as an “inquiry”, and thus a “privative clause decision” (as defined). Rather, s. 36(1C) merely formed part of a number of criteria to be considered in deciding whether to grant or refuse a visa under s. 65. In other words, each step in the lead up to the making of a decision under s. 65 is not a separate decision in and of itself; there is just the one decision to refuse or grant a visa.

39    Moreover, even if the Minister had made a “decision” in forming a conclusion about satisfaction of the criterion set out in s. 36(1C), that decision was a nullity. The Minister relied upon Minister for Immigration and Multicultural Affairs v. Bhardwaj (2002) 209 C.L.R. 597. Gaudron and Gummow JJ. (with whom McHugh J.) agreed, relevantly observed at 616 [53]:

... As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act 1901.

See also Minister for Immigration and Border Protection v. CLV16 (2018) 260 F.C.R. 482.

40    Because, it was submitted, the earlier decision of the Minister was “quashed” by the orders made in February 2020 by the Court, the duty to make a decision pursuant s. 65 (and as a corollary, consideration of s. 36(1C)) remained unperformed. Following the making of those orders, it was therefore necessary for the Minister to revisit the earlier determination under s. 36(1C) (said to have been last performed over 20 months ago).

41    The Minister further submitted that the Court did not, in any event, have jurisdiction to order the Minister to issue the protection visa. Whilst s. 476A(2) of the Act states that the Court’s jurisdiction under s. 476A(1)(a), (b) and (c) is the same as the jurisdiction of the High Court under s. 75(v) of the Constitution (set out in s. 9 of the Commonwealth of Australia Constitution Act 1900 (Imp.)), the word “matters” in s. 75(v) needed to be understood, it was said, as being limited to a matter which otherwise attracts the Court’s jurisdiction. That did not include a decision to grant or refuse a visa under s. 65 – such a decision is not referred to in s. 476A(1).

42    The Minister also submitted that the interests of justice did not require the proceeding to be transferred to the Federal Circuit Court because the interlocutory application was misconceived. He finally submitted that an order for indemnity costs was inappropriate in the circumstances. That is because it had not been shown that there was deliberate or contrived delay by the Minister or the Department in making a decision under s. 65 of the Act.

Disposition

43    I make the following findings and conclusions.

44    First, for reasons already given, I do not think that the Minister has been deliberately delaying the making of a decision under s. 65 of the Act. The evidence does not support the finding that he has engaged in some form of scheme to avoid the reach of BAL19. Rather, I am satisfied that the Minister has been complying with the orders made by the Court, but at a pace which is insufficient.

45    Secondly, it follows that it is not appropriate to make an order in the nature of peremptory mandamus as sought by the applicant. The orders made in February 2020 did not involve the issue of a writ of mandamus with a date specified for the return of that writ. Rather, an order in the nature of mandamus was made and no time limit was imposed for compliance. The evidence before me is not that the Minister has done nothing to comply with that order. He has not ignored it. Rather, he has taken some steps to comply with it.

46    Thirdly, the decision of the High Court in Plaintiff S297 does not govern the outcome of this matter. It is distinguishable for the reasons given by the Minister.

47    Fourthly, the principle extracted from Bhardwaj, and relied upon by the Minister in the alternative, does not apply here. As Mr Guo, Counsel for the applicant, correctly observed, what was quashed by the orders made in February 2020 was the Minister’s decision made under s. 501. In my view, that did not quash the view reached by the Minister’s delegate that the applicant satisfied the criterion set out in s. 36(1C) of the Act. The applicable criteria set out in s. 501 are different to the criterion set out in s. 36(1C). What was quashed was a distinct decision which did not bear upon the correctness or adequacy of the view reached about the application of s. 36(1C).

48    Fifthly, following the decision of the Tribunal, the Minister was required to consider whether to grant or refuse the protection visa sought by the applicant pursuant to s. 65 of the Act with the Tribunal’s direction “that the applicant satisfied s. 36(2)(a) of the Migration Act”. The Minister has not sought to impugn that finding. He did not seek judicial review of the Tribunal’s decision. The finding stands.

49    Sixthly, whether or not the view previously reached about the application of s. 36(1C) was, or was not, a “decision” in and of itself under the Act probably does not matter (as to which, see below). As it happens, I doubt that it was. In Plaintiff M47/2012 v. Director-General of Security (2012) 251 C.L.R. 1, French C.J. at 30 [25] said that, “[i]n respect of protection visas, the satisfaction required of the Minister under s. 36(2)(a) has been described as a ‘component of the condition precedent to the discharge of [the] obligation’ imposed by s 65” (citing Minister for Immigration and Multicultural Affairs v. Haji Ibrahim (2000) 204 C.L.R. 1 at 34-35 [107] per Gummow J., citing Chen Shi Hai v. Minister for Immigration and Multicultural Affairs (2000) 201 C.L.R. 293 at 306 [41]). I think that the same conclusion should probably apply to s. 36(1C).

50    Seventhly, whether, for the purposes of exercising the power conferred by s. 65 on the Minister, he must now reconsider the view reached previously by his delegate, is a matter of statutory construction of that provision and s. 36(1C). As Gleeson C.J. observed in Bhardwaj at 603 [5]-[7]:

There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. In Ridge v Baldwin [[1964] AC 40 at 79], Lord Reid said:

“I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.”

That general proposition must yield to the legislation under which a decision-maker is acting. And much may depend upon the nature of the power that is being exercised and of the error that has been made.

51    The Chief Justice then said the following at 603-604 [8]:

The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?

52    In my view, it would make little sense in the context of the scheme of the Act if the Minister or his current delegate were presently bound by his delegate’s earlier view about the application of s. 36(1C). The better view is that, for the purposes of making a decision under s. 65 of the Act, the Minister should have regard to the latest relevant information. The language of s. 65 supports that conclusion. It requires the Minister to be satisfied, amongst other things, that the applicable criterion “have been satisfied” (s. 65(1)(a)(ii)) and that the grant of the visa is not prevented by “any other provision of this Act or of any other law of the Commonwealth” (s. 65(1)(a)(iii)). In this statutory context, it would make little sense for the Minister to be bound by an historical determination about whether an applicant had previously been a danger to the community. Circumstances, for example, can change. This conclusion is consistent with general administrative law principles. As Mason J. (as his Honour then was) observed in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 C.L.R. 24 at 45, there exists a general principle:

… that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

53    It follows that the Minister was here required to consider afresh each criteria for the grant of a protection visa, save for an application of s. 36(2)(a) (for the reasons set out above), in discharging his obligations under the orders made in February 2020. That includes s. 36(1C).

54    Having said that, and acknowledging the events that have transpired since the original orders were made, I formed the view at the hearing on 17 April 2020 that it was appropriate to impose a deadline on the Minister. The next question was what timeframe should be afforded for compliance. The Federal Court Rules 2011 (Cth.) (the “Federal Court Rules”) are of limited assistance because they do not address how the Court is to issue writs of mandamus. In such circumstances, if a writ were to be issued by the Court, it would need to apply the High Court Rules 2004 (Cth.) (the “High Court Rules”). That is because of s. 38(1) and (2) of the Federal Court of Australia Act which provide as follows:

(1)    Subject to any provision made by or under this or any other Act with respect to practice and procedure, the practice and procedure of the Court shall be in accordance with Rules of Court made under this Act.

(2)    In so far as the provisions for the time being applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.

55    Under r. 25.13.4 of the High Court Rules, a writ of mandamus is returnable with 14 days after its service unless otherwise ordered by the Court or a Justice. Under r. 25.13.5, an affidavit must be filed either stating that the act commanded by the writ has been done or giving reasons why the act has not been done. In February 2020, the Court did not issue a writ of mandamus but an order in the nature of mandamus. In my view, the time limit prescribed by the High Court Rules provide an ample analogy of what time should be taken by a respondent to comply with that type of order. Here, the Minister has been working on this matter for nearly two months. That is too long. All things considered, it was my view that the usual time limit of two weeks should be sufficient for the Minister to complete his task under s. 65 of the Act. However, due to the COVID-19 pandemic, I added an extra week for compliance.

56    Eighthly, the form of order I made on 17 April 2020 did not just remit the “matter” to be determined in accordance with law by a certain date, but included the following words: “to determine whether or not to grant a Protection (Class XA) visa to the applicant in respect of his protection visa application made on 3 October 2017”. Whilst the Court may not have jurisdiction to compel the Minister to issue a visa (a matter I do not decide), s. 22 of the Federal Court of Australia Act supplies me with the power, indeed the duty, to make it clear what the Minister must do. It commands the Court, on such terms and conditions as I consider just, to grant sufficient remedies “so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided”. The same conclusion would apply if, as Mr Guo suggested, the better view is that s. 32 of the Judiciary Act is applicable. Whatever the limitations prescribed by s. 476A(1) of the Act, once seized with jurisdiction to quash the Minister’s s. 501 decision, and in the context of making an order in the nature of mandamus, s. 22 of the Federal Court of Australia Act (or s. 32 of the Judiciary Act) gave this Court the ability to put beyond doubt what the Minister must now do by expressly referring to s. 65 in the terms of the order.

57    The foregoing conclusion is supported by the decision of Lindgren J. in SZLDG v. Minister for Immigration and Citizenship (2008) 166 F.C.R. 230. In that case, an application had been made for a protection visa. Some 19 months later, the Minister had yet to make his decision, notwithstanding the presence in the Act at that time of s. 65A which imposed a 90-day time limit on the Minister to decide whether to refuse or grant the visa (the section has since been repealed). The applicant in that case sought an order in the nature of mandamus. Lindgren J. agreed to make the order. At [110], his Honour said:

There should be an order in the nature of mandamus requiring the Minister to determine the application for the Temporary Protection visa according to law, that is to say, either to grant or to refuse to grant such a visa conformably to s 65(1) of the Act. While I will receive submissions from the parties, I am also presently of the view that the order should fix a time for compliance, and that the Minister should be ordered to pay the applicant’s costs of the proceeding.

58    Ninthly, it follows that a referral to the Federal Circuit Court is not required.

59    Tenthly, both the applicant and the Minister had some measure of success before me. In those circumstances, I exercised my discretion to make no order as to costs in respect of the application filed on 30 March 2020.

Associate:

Dated:    24 April 2020