FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615

ORDERS

THE COURT NOTES that the appellants give an undertaking to pay any damages occasioned by the stay in the event that the appellants’ appeal is unsuccessful

THE COURT ORDERS THAT:

1.    Paragraphs 2 and 3 of the orders made by Colvin J in SAD 53 of 2020 on 30 April 2020 be stayed until the determination of the appeal or until further order of the Court.

2.    The hearing of the appeal be expedited.

3.    The costs of the application for the stay be costs in the appeal.

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

REASONS FOR JUDGMENT

BESANKO J:

1    This is an application by the appellants in an appeal for a stay of orders made by a judge of this Court on 30 April 2020 until the determination of the appeal from those orders. I heard argument on the application on Monday, 4 May 2020 and at that time I made an order for an interim stay so that I could consider the submissions which have been put to me. For the reasons which follow, I will make an order for a stay until the determination of the appeal or until further order of the Court. I will note the undertaking as to damages proffered by the appellants. I will also order that the hearing of the appeal be expedited, although precisely what that means in terms of a hearing date will depend upon the ability of the parties to be ready for hearing and the availability of the Court to hear the matter. The costs of the application for the stay should be costs in the appeal.

2    The appellants are the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) and the Commonwealth of Australia, and the respondent is BFW20 by his litigation representative BFW20A.

3    At the risk of some oversimplification, the broad nature of the issue raised by the appeal may be illustrated by the following example. Section 501 of the Migration Act 1958 (Cth) (the Act) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. A non-citizen who makes an application for a protection visa must satisfy, inter alia, the criteria in s 36 of the Act. Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa. If the Minister is not so satisfied, he or she is to refuse to grant the visa. The Minister decides in the course of considering an application for a protection visa that he or she wishes to consider whether the visa should be refused under s 501(1) of the Act. Is the Minister entitled to refuse to grant the protection visa under s 501(1) of the Act?

4    In a decision of a single judge of this Court (BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19)), it was decided that the Minister could not do this and said (at [90]):

… the application for a protection visa must be assessed in accordance only with the mandatory criterion s 36 and cl 785.227 and the Minister cannot refuse the grant of a visa under s 501(1) or any other provision in Pt 9 of the Act.

5    The Minister has lodged an appeal in BAL19. That appeal does not presently have a listing. There is another appeal before the Court in which the correctness of the single judge’s decision in BAL19 is raised and that appeal is listed for hearing on 21 May 2020 (KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, WAD 397 of 2019, (KDSP)). As I understand it, in the matter of KDSP, the appellant has been given leave to raise the BAL19 decision as a new ground of appeal. The appellant in KDSP claims that the delegate lacked jurisdiction to refuse his protection visa application under s 501(1); the Tribunal therefore lacked jurisdiction to set aside that decision under s 501(1); and accordingly, the Minister lacked jurisdiction to set aside the Tribunal’s decision and refuse the visa under s 501A.

6    There is, in addition, a further issue in the appeal in the present matter which may more properly be described as a sub-issue. This issue is whether the primary judge should have refused the relief sought by the respondent on the basis that the Minister was entitled not to proceed further with the respondent’s application for a safe haven enterprise visa (SHEV) until his challenge to the correctness of BAL19, either in that case or in KDSP, had been determined.

7    The two issues are raised by the appellants in their Notice of appeal. The grounds of appeal are as follows:

1.    The primary judge erred in holding that, since the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189, the Appellants (the Respondents below) have not been legally permitted to rely on a possible future exercise of power under s 501 of the Migration Act 1958 (Cth) in defence of ground 1 of the amended application.

2.    The primary judge erred in following BAL19 to hold that the power to refuse a visa under s 501(1) of the Act is unavailable in respect of a protection visa.

8    The primary judge described the relief originally sought by the respondent as a writ of mandamus requiring the Minister or his delegate to determine, forthwith and according to law, the respondent’s application for a SHEV made on 23 December 2015 on the basis that s 501 of the Act does not prevent the grant of the visa within the meaning of s 65 of the Act. The respondent also sought in his application, in the alternative, a writ of mandamus requiring the Minister or his delegate to determine, forthwith and according to law, the respondent’s application for a SHEV made on 23 December 2015. Finally, in terms of substantive relief, the respondent sought a declaration that his current and continuing detention is not authorised by Div 7 of Part 2 of the Act.

9    The primary judge proceeded to deal with at least some aspects of the respondent’s application by reserving certain questions for consideration. Those questions and his Honour’s answers to them are as follows:

Question (a)

Since the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189, are the respondents legally permitted to rely on a possible future exercise of power under s 501 of the Migration Act 1958 (Cth) in defence of ground 1 of the amended application?

Answer

No

Question (b)

Should the Court decline to follow the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189 on the basis that it is plainly wrong?

Answer

No

Question (c)

If questions (a) and (b) are decided adversely to the respondents, should a writ of mandamus issue to the Minister?

Answer

Yes

10    The primary judge then went on to make the following two orders:

2.    A writ of mandamus issue to the Minister requiring the Minister or his delegate to determine according to law the applicant’s application for a safe haven enterprise visa made on 23 December 2015 on the basis that s 501(1) does not empower the refusal of the application.

3.    There be liberty to the applicant to apply to vary order 2 to provide for a period within which the Minister is required to determine the applicant’s application.

(BFW20 by his Litigation Representative BFW20A v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562.)

This application by the appellants is for a stay of orders 2 and 3 until the conclusion of the appeal.

11    The appellants proffer an undertaking to pay any damages occasioned by the stay in the event their appeal is unsuccessful.

12    The relevant principles with respect to the granting of a stay are well-established. The onus is on the applicant for the stay to show that it should be granted. The judgment below is not considered provisional until confirmed on appeal and the respondent to an application for a stay has a prima facie entitlement to the fruits of his or her success. An important matter in favour of a stay is where the circumstances are such that, absent a stay, the subject matter of the appeal will be lost. Of equal importance in determining whether a stay is granted may be the presence of circumstances, should a stay be granted, that give rise to a real risk of the applicant for the stay acting in a way which prevents him or her from satisfying the first instance judgment. In those circumstances, a stay may be refused or granted only on condition that security be provided. The Court will consider the merits of the appeal, but only to the point of being satisfied that it is reasonably arguable. The Court will also consider the loss to the respondent, should a stay be granted, and other matters relevant to both parties and the balance of convenience. Finally, any disentitling conduct by the applicant for the stay will be considered (Mitolo Wines Aust Pty Ltd v Vito Mitolo & Son Pty Ltd (No 3) [2019] FCA 2116 at [10]–[13]).

13    In this case, the grounds of appeal are clearly reasonably arguable. It is also the case that the subject matter of the appeal will be destroyed if a stay is not granted. Absent a consideration of the power in s 501(1) (which is presently precluded by the primary judge’s order), the respondent’s application for a SHEV is ready to be determined. If granted, the appellants lose the ability to rely on the power in s 501(1) to refuse the application for the SHEV. The respondent seeks to counter this argument by submitting that it will be open to the appellants to cancel the visa under s 501 should the decision in BAL19 be overruled on appeal. This is certainly a closely related point, but it is better dealt with, in my opinion, under the category of prejudice to the appellants should the stay be refused. In this case, the principal arguments relate to prejudice to the respondent if a stay is granted, prejudice to the appellants if a stay is not granted, and whether the appellants have been guilty of conduct which, in effect, disentitles them from being granted a stay.

14    I start with what is said to be the appellants’ disentitling conduct.

15    On their application for a stay, the appellants relied on an affidavit of Ms Dale Watson, an Australian Government Solicitor lawyer within the meaning of s 55I of the Judiciary Act 1903 (Cth). Ms Watson has conduct of the matter for the appellants. She refers to the orders made by the primary judge on 30 April 2020. She states that on 1 May 2020, she was informed that a health requirement for the respondent in relation to his protection visa application was completed and that, with the exception of any consideration of the exercise under s 501(1) of the Act that the Minister seeks to continue if legally permitted to do so, no remaining criteria are now outstanding in relation to the respondent’s application, including the national interest criterion set out in cl 790.227 of Sch 2 to the Migration Regulations 1994 (Cth). She states that in the absence of a stay, a decision on the visa application will have to be made by the Minister in the absence of any ability to rely on the exercise of the discretion under s 501(1) of the Act, which is the subject matter of the dispute in the appeal.

16    The appellants lodged their Notice of appeal and an Interlocutory application with supporting affidavit in the South Australia District Registry of this Court on the afternoon of Friday, 1 May 2020 and, as I have said, I heard argument on the appellants’ application for a stay on Monday, 4 May 2020.

17    The respondent submits that the application for a stay should be refused because, but for the Minister’s failure to comply with the orders of the Court by determining the respondent’s visa application, there would be no utility in such a stay (because the SHEV would already have been granted). The respondent submits that to grant the stay would enable the appellants to “benefit” from the Minister’s failure to comply with the Court’s order. He also asks me to take into account the fact that the appellants applied to the primary judge for a stay on 30 April 2020, but that application was refused.

18    The primary judge made the orders which are the subject of the appeal on 30 April 2020 at approximately 2 pm. Counsel for the appellants immediately sought a stay of the orders. That application was opposed by the respondent. I have read the transcript and it seems to me that his Honour took the view that, at best, the application should be treated as an application for a stay for a short period during which the appellants could prepare a formal application, which, in the usual case, would be referred to a different judge. With that background in mind, his Honour refused the application for a stay. He considered that in the period of time in which a formal application may be made, there would be no prejudice to the Minister in taking steps to consider the application. He noted that the form of the order that he made did not specify a time in which the application must be determined, and further, it reserved liberty to apply for the order to be varied for such a provision. In those circumstances, there was no immediate requirement or need for a stay. The primary judge noted that ordinarily, other than a stay for a short period of time, the Court would arrange for such an application to be listed before a judge other than himself, and he said that it seemed to him that a stay at that point was not necessary because there was no evident prejudice that would follow from the Minister having to commence steps to undertake the consideration of the application or, at least, there was insufficient prejudice to justify a stay. Furthermore, as to the further submission that an appeal would be rendered moot if the Minister was required to make a decision, his Honour said that “that point had not yet been reached, and the Minister will be able to — with due urgency — seek a stay if that’s what the Minister seeks to do”.

19    Contrary to the respondent’s submission, I do not draw any adverse inference from those events. The primary judge seems to have proceeded on the basis that, in refusing an application for an interim stay, he would not prejudice the appellants’ ability to seek a stay from another judge. Perhaps the appellants should have been in a position to advise the primary judge of how little was left to be done apart from s 501, in the consideration of the respondent’s application for a SHEV, but that criticism, even if it be accepted, does not rise to the level of compelling the rejection of the appellants’ application for a stay.

20    As I have said, I accept that the subject matter of the appeal will be lost if a stay is not granted. In other words, if the order for a writ of mandamus stands, then the Minister is required to consider the respondent’s application for a SHEV without regard to s 501 of the Act. The Minister may be compelled to grant the visa before the appeal is heard. Should the Court on appeal hold that BAL19 was wrongly decided and that the Minister is able to refuse an application for a protection visa pursuant to s 501(1), then in this case, the Minister would no longer be in a position to do so. At the same time, I accept that the appellants do not suffer prejudice in the same way as, for example, a person with a commercial interest in the outcome of an appeal. Nevertheless, there is an important public interest in the due and proper administration of the Act. It is true that should the appeal be successful, there is a prospect that the Minister could cancel, under s 501, any visa granted in the interim in the absence of a stay. But it can be put no higher than a possibility at this stage. Even if counsel for the respondent was taken to have conceded the point (and I am not sure that he did), it is a matter of law about which I am not prepared to express a definite opinion on an application for a stay.

21    The respondent suffers from a mental disability which means he is not able to live independently. As appears from what is said above, the respondent is in detention. The primary judge described how that came about. The respondent was charged with two offences. One count was for a sexual offence and the other was for aggravated assault. He was held in custody and his residence determination was revoked. He was then found to be mentally unfit to stand trial and a declaration was made that he be held under supervision. The limiting term imposed for the purpose of the relevant legislation applying to his supervision was four years.

22    The primary judge then said (at [144]–[147]):

In December 2017, a judge of the District Court of South Australia, after receiving reports as to the mental health of the applicant and submissions from the prosecution and the Minister, made orders for the applicant to be released on licence. The conditions of the licence (Release Conditions) were to the effect that the applicant was to remain in the care of the Minister’s Department ‘for the duration of his status as an unlawful non-citizen’ and during that period was to reside where directed by the Commonwealth and ‘shall comply with any treatment and care plan implemented by the place at which [he] resides’. The Release Conditions provide that he also be held under the supervision of a Community Corrections Officer assigned by the Parole Board and that he is to comply with the directions of the parole officer as to non-medical matters.

There is a further condition that if the Commonwealth ceases to have custody of the applicant then arrangements are to be made for his transfer to a secure facility. The Release Conditions also confer a discretion on the Director of Forensic Medical Health to transfer the applicant’s case management to a local Community Mental Health Team. It is submitted that the Release Conditions would enable the applicant to be released into the care of his mother according to the terms of case management determined by a Community Mental Health Team if he was not held in immigration detention.

Pursuant to the Release Conditions the applicant has been held in immigration detention. Reports were provided to the Minister to the effect the detention at the Adelaide Immigration Transit Accommodation (AITA) is unsuitable for the applicant. As a result arrangements were made for the applicant to be accommodated under the terms of a proposal agreed with Minda Inc an established provider of services to people with disabilities. The proposal was for his accommodation within a secure three-bedroom house until relocation to Minda’s Brighton site. The proposal detailed the extent of specialist care to be provided.

Therefore, since December 2017 the outcome of the Charges has been known and detailed medical reports have been available as to the mental health of the applicant. He remained in residential care with Minda Inc until February 2020 when notification was received that the case could not continue and arrangements for alternative facilities were being investigated. The possibility of that facility being in Melbourne rather than Adelaide (where the applicant’s mother resides) was raised by the Department. Since 10 March 2020, the applicant has been detained at AITA.

23    From the respondent’s point of view, a stay of the primary judge’s orders will mean that from now until the determination of the appeal, he will lose the chance to come out of detention and be in the care of his mother as a result of a favourable decision on his application for a SHEV. I refer to this as a chance, perhaps a good one, because of the conditions attached to the supervision order. The chance to reside with his mother before the appeal is determined is to be given considerable weight. On the other hand, the subject matter of the appeal will be lost should a stay be refused, the Minister has proffered an undertaking as to damages, and I propose to order that the appeal be expedited. I should say that I recognise and acknowledge, and have taken into account, that the respondent may face difficulties in formulating a claim under the undertaking as to damages should the undertaking be otherwise engaged.

24    Balancing the relevant factors, I consider that a stay should be granted. Because it is not possible to predict how events will unfold in the future, I will make the terms of the stay: until the determination of the appeal or until further order of the Court. The costs of the application for the stay will be costs in the appeal.

Associate:    

Dated:    8 May 2020