FEDERAL COURT OF AUSTRALIA

AFX17 v Minister for Home Affairs [2020] FCA 807

ORDERS

THE COURT DECLARES THAT:

1.    The Respondents have failed to make a decision with respect to the Applicant’s application for a Safe Haven Enterprise (Class XE) visa within a reasonable time.

AND THE COURT ORDERS THAT:

1.    Leave is granted to the Applicant to amend the Originating Application in the form dated 3 June 2020, subject to Particular (xiii) to Ground 1 being amended to read “… the Applicant was provisionally assessed as meeting all the criteria for the grant of a Safe Haven Enterprise visa”.

2.    Leave is reserved to the parties to apply for further orders to give effect to the reasons of the Court in the present proceeding.

3.    The Respondents are to pay the costs of the Applicant, either as agreed or taxed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Applicant in the present proceeding, identified by the pseudonym AFX17, is from Iran. He arrived in Australia by boat in July 2013. Although initially detained in immigration detention, he was granted a bridging visa and was released in August 2013.

2    Over three years later, namely on 1 December 2016, the Applicant’s visa was cancelled and he was again placed in immigration detention. On 19 December 2016, he applied for a protection visa. That application was rejected by a delegate of the Minister in August 2018. Review of the delegate’s decision was sought. In October 2018, the Administrative Appeals Tribunal set aside the delegate’s decision and remitted the matter to the Minister with a finding that the Applicant passed the character test under s 501 of the Migration Act 1958 (Cth) (the “Migration Act”). Written reasons for that decision were published in November 2018.

3    Between May and November 2019 inquiries were made as to the progress of the outstanding visa application. In the absence of any progress, an Originating Application was filed in this Court in December 2019, alleging unreasonable delay in the making of a decision. The Respondents to that proceeding were named as the Minister for Home Affairs and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. Thereafter, on 25 February 2020, the Minister for Home Affairs decided to set aside the October 2018 decision of the Tribunal and further decided to refuse to grant the Applicant a protection visa. The Originating Application before this Court was then amended.

4    On 26 March 2020, this Court made orders by consent. Those orders quashed the decision made on 25 February 2020, dismissed the Originating Application and ordered the Ministers to pay costs. There was a notation that the Respondents conceded there was jurisdictional error in the making of the decision.

5    On 16 April 2020, the Applicant made a further inquiry seeking an update on the progress of the protection visa application, but no response was received.

6    It was in those circumstances that a new Originating Application was filed in this Court on 19 May 2020. On 2 June 2020, the Applicant was notified of an intention to consider the refusal of his protection visa application under s 501A(2) of the Migration Act. At the outset of the hearing on 4 June 2020 the Applicant sought leave (and, subject to a minor variation, was granted leave) to amend the Originating Application.

7    In summary form, the Applicant contends that:

    any consideration by the Minister of the exercise of the discretion conferred by s 501A of the Migration Act would be contrary to BAL19 v Minister for Home Affairs [2019] FCA 2189 (“BAL19”), a decision of this Court published on 24 December 2019;

    there has been unreasonable delay in the making of a decision in respect to the application for a protection visa; and

    the Court has jurisdiction to make and should make a mandatory order requiring the Respondents “to determine according to law the Applicant’s application for a safe haven enterprise visa … on the basis that ss 501(1) and 501A(2)(a) of the Act do not empower the refusal of the application”.

No order is presently sought by the Applicant:

    requiring the Respondents to make a decision by a particular time.

Again, in very summary form, the Respondents contend that:

    the decision in BAL19 was “plainly wrong” and should not be followed;

    there has been no unreasonable delay in the consideration of the Applicant’s protection visa application; and

    the Court has no jurisdiction to review any decision in respect to the protection visa application or to direct the Respondents to consider the protection visa application.

8    Albeit not following the order in which the Amended Originating Application sets forth the Relief sought and the Grounds upon which reliance is placed, it is concluded that:

    the decision in BAL19 is not “plainly wrong” and should be followed and applied in the present proceeding;

    there has been unreasonable delay in the making of a decision under s 65 of the Migration Act in respect to the application for a protection visa;

    the Court has both jurisdiction to grant declaratory relief that ss 501 and 501A(2)(a) “do not empower the refusal of the application” and jurisdiction to compel the Respondents to consider the application for a protection visa forthwith;

but that:

    no such mandatory order should presently be made, although liberty should be reserved to the Applicant to apply for such an order should it become necessary to do so.

The Amended Originating Application & jurisdiction – s 476A

9    The 2 June 2020 letter advising the Applicant of consideration being given to the setting aside of the October 2018 decision of the Tribunal and the refusal to grant a protection visa application was expressed (in part) as follows:

Dear [AFX17]

Notice of intention to consider setting aside the decision of the Administrative Appeals Tribunal and refusing to grant a visa under s501A(2) of the Migration Act 1958

Purpose of this notice

On 19 December 2016, you applied for a Safe Haven Enterprise (Class XE) visa. On 8 August 2018, a delegate of a Minister administering the Migration Act 1958 (the Act) refused to grant you a Safe Haven Enterprise (Class XE) visa under s501(1) of the Act. On 23 October 2018, the Administrative Appeals Tribunal (AAT) made a decision not to exercise the power conferred by s501(1) to refuse to grant your visa (original decision).

On 26 February 2020, you were notified that the Minister had set aside the 23 October 2018 decision of the AAT and refused to grant your visa under s501A(2) of the Act. On 16 March 2020, you filed an application for judicial review of the Minister’s decision. On 26 March 2020, the Department withdrew from those proceedings, enlivening the original decision of the AAT.

The purpose of this notice is to inform you that the Minister for Home Affairs will personally consider whether to set aside the decision of the AAT dated 23 October 2018 and refuse to grant you a Safe Haven Enterprise (Class XE) visa under s501A(2) of the Act.

10    It was on the following day that the Amended Originating Application was filed in this Court.

11    As amended the Originating Application details the claim and relief sought by the Applicant as follows:

Details of claim

On the grounds stated in the statement of claim, accompanying affidavit and other document prescribed by the Rules, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903, and claims:

1.    A declaration that the Respondents failed to make a decision with respect to the Applicant under ss 47 and 65 of the Migration Act 1958 (Cth) (Act) within a reasonable time.

2.    A writ of mandamus issue to the Respondents requiring the Respondents or their delegate/s to determine according to law the Applicant’s application for a safe haven enterprise visa made on or about 19 September 2016 on the basis that ss 501(1) and 501A(2)(a) of the Act do 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 Respondents are required to determine the Applicant’s application.

4.    Such other relief as this Court considers just.

5.    Costs.

The reference to an application made on “19 September 2016”, it would appear, may be a mistake as that the application was made in December 2016. But nothing turns on the precise date. The Grounds relied upon, as amended, were expressed as follows:

Ground One

1.    The Respondents failed to make a decision in respect to the Applicant under ss 47 and 65 of the Migration Act 1958 (Cth) within a reasonable time.

…

Ground Two

2.    Sections 501 and 501A(2)(a) of the Act do not empower the refusal of the Applicant’s visa application.

…

Extensive Particulars are also set forth in respect to each of these two Grounds.

Sections 501(1) and 501A(2) & BAL19

12    In refusing to grant the Applicant a protection visa in February 2020, the reasons for that decision record the Minister as having decided “to exercise [his] discretion under s 501A(2) of the Act to set aside the original decision and refuse to grant [the Applicant’s] Safe Haven Enterprise (Class XE) visa…”. Those reasons also record the acceptance by the Minister “that the Department has found [the Applicant] is a person in respect of whom Australia has non-refoulement obligations”. Those reasons, it will be noted, come after the December 2019 decision in BAL19.

13    It was that decision of the Minister which was quashed by consent.

14    More immediately relevant are the terms of the 2 June 2020 letter and the consideration again being given to s 501A(2) when deciding whether or not to set aside the decision of the Tribunal when entertaining an application to review a refusal to grant a protection visa.

15    The course envisaged to be followed in the June 2020 letter, it is respectfully concluded, is precluded by the decision in BAL19 and the analysis there set forth of the relevant statutory provisions.

16    The provisions of immediate relevance to the circumstances in which a decision may be made (or refused) in respect to a visa and (in particular) a protection visa are relevantly to be found in ss 36, 65, 501 and 501A of the Migration Act. It is sufficient for present purposes to simply set forth the terms in which these provisions are expressed.

17    Section 36 provides in part as follows:

Protection visas – criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)    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.

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa of the same class as that applied for by the applicant.

…

18    Section 65(1) provides in relevant part as follows:

Decision to grant or refuse to grant visa

(1)    …, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

….

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

19    Section 501 provides in relevant part as follows:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate – natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

…

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

Decision of Minister – natural justice does not apply

(3)    The Minister may:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

…..

(4)    The power under subsection (3) may only be exercised by the Minister personally.

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)    the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

…

20    Section 501A(1) and (2) provide as follows:

Refusal or cancellation of visa – setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

21    It was these provisions, and related provisions, which were considered in BAL19.

22    As explained by Rares J in BAL19, the application then before the Court was:

[1]    … an application for Constitutional writ relief in respect of the decision that the first respondent, the Minister for Home Affairs, made personally on 12 July 2019 to refuse to grant a temporary protection (class 785) visa to the applicant in exercise of his power under s 501(1) of the Migration Act 1958 (Cth), even though the Minister accepted that Australia owed the applicant non-refoulement obligations.

(emphasis in original).

No difference was there sought to be drawn between “s 501 and its analogues in Pt 9” of the Migration Act: [2019] FCA 2189 at [3]. Both ss 501 and 501A are to be found within Pt 9. Although the source of power being invoked in BAL19 was s 501 – and the power in the present case being s 501A(2) – that distinction assumes no relevance to the issues agitated and resolved in BAL19.

23    Of present relevance is the manner in which Rares J in BAL19 resolved what he characterised as the “inconsistency issue”. The question was whether s 36(1C) of the Migration Act “displaced” or “precluded” the Minister from relying upon s 501(1) as a basis for refusing to grant a protection visa. Section 36(1C) assumed relevance in the reasoning in BAL19 because it was a new provision introduced by way of legislative amendment in 2014 and subsequent to previous decisions which had concluded that s 501 could be relied upon when refusing a protection visa: e.g., Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 at [114]-[115] per Lander J (Carr and Sundberg JJ agreeing). In BAL19 it was concluded that s 501 could not be relied upon when deciding a protection visa application.

24    In BAL19 the Minister’s argument was summarised as follows:

The inconsistency issue

…

(a) The Minister’s submissions

[57]    The Minister argued that s 36(1C) did not displace, as a source of power to refuse or cancel a protection visa, the availability of s 501 and its analogues. He contended that, although a person might meet all the criteria for a visa in s 36, the Minister was not bound to grant the visa under s 65(1)(a) unless, relevantly, s 501 prevented its grant, in the sense that the Minister (or a delegate) had made a decision in exercise of the power in s 501 to refuse it.

Although it is somewhat extensive, it is at least convenient to set forth some of the “Consideration” given by Rares J to this contention because of the submission made in the present case that the relevant conclusion in BAL19 was “plainly wrong” and should not be followed. Many of the arguments relied upon by Senior Counsel in advancing that submission to this Court were the same as the arguments considered, resolved and rejected in BAL19. Although extensive, the “Consideration” given to the Minister’s submission in BAL19 thus proceeded (in part) as follows (without alteration):

(b) Consideration

[61]    The criterion in s 36(1C) is both specific and substantively narrower than the discretions created by s 501 and its analogues in Pt 9 of the Act under which the Minister has a variety of discretions to refuse to grant or to cancel a visa of a person who does not satisfy the Minister that he or she passes the character test (as defined in s 501(6)). Hence, the discretionary power to refuse a visa under s 501(1) is unconstrained, except by the subject matter, scope and purpose of the Act, once the person has not satisfied the Minister that he or she passes the character test: cf. Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ. Other provisions, such as s 501(3), create additional criteria that, for example, require the Minister also to be satisfied that the refusal to grant, or the cancellation of, a visa is in the national interest. And, s 501(1), together with its analogues, appear to apply generally as a power exercisable in respect of all categories of visa.

[62]    In addition, the character test prescribes criteria that could include those amounting to a “particularly serious offence” as defined in s 5M. But the character test also includes much less serious situations. For example, s 501(7)(c) and (d) include within the definition of “substantial criminal record” one or more sentences to a term of, or totalling, 12 months imprisonment or more, and s 501(6)(d)(ii) and (11) refer to a risk of a person harassing or molesting another even though the conduct does not include actual or threatened violence.

[63]    However, s 36(1C) creates a specific criterion for one class of visa, namely a protection visa, that contains disqualifying grounds. Those grounds in s 36(1C) are much more restrictive than those available under s 501(1) (and its analogues) in the event that a person does not pass, or does not satisfy the Minister that he or she passes, the character test. In particular, s 36(1C) is not a discretionary power. The Minister, relevantly under s 36(1C)(b), must have objectively reasonable grounds to consider that a person, first, has not been convicted of a particularly serious offence and, secondly, is not a danger to the Australian community. In contrast, the aspect of the character test in s 501(6)(d)(v), which the Minister found the applicant had not satisfied him that he (the applicant) passed, cast an onus on the applicant to satisfy the Minister of a negative state of affairs. Yet, s 36(1C)(b) prescribed a mandatory criterion for a protection visa that the applicant here satisfied.

[64]    In enacting s 36(1C), the Parliament determined, consistently with Art 33(2) of the Refugees Convention, that a person would be eligible to be granted a protection visa if he or she is not a person whom the Minister considers, on reasonable grounds, to be a danger to the Australian community on the premise that the person had been convicted of a particularly serious crime. The criterion in s 36(1C)(b) required the existence of reasonable grounds for the Minister to consider that the person was actually (as opposed to the criterion in s 501(6)(d)(v) of there being a risk that he or she would represent) a danger to the Australian community, and that could occur only in the context of the Minister having reasonable grounds to consider that the person had been convicted of a particularly serious crime.

[65]    The particular importance of s 36(1C)(b) is that it gives effect to the Parliament’s stipulation that a person whom the Minister does not have reasonable grounds to consider had been convicted of a particularly serious crime, was eligible to be granted a protection visa, regardless of the danger he or she may be to the Australian community. The legislative purpose of that stipulation was to ensure that such a person would not be refouled (subject, of course, to other protective criteria in s 36(1B), (1C)(a) and (2)), despite the danger he or she may be to the Australian community, because that person, in those prescribed circumstances, consistently with Art 33(2) of the Refugees Convention, was not to be exposed to the real chance of persecution of which he or she had a well-founded fear.

[66]    In contrast, s 501(6)(d)(v) provided that a person did not pass the character test if there were a risk that he or she would represent a danger to the, or a segment of the, Australian community. That criterion operated by reference to the existence of a (i.e. any) risk that the person would represent a danger to the whole, or a segment of the, Australian community without any additional qualification of a past conviction or the existence of reasonable grounds to consider the existence of the risk.

[67]    There would be no intelligible statutory purpose for the mandatory criterion for a grant of a protection visa in s 36(1C), reflecting as it does the Parliament’s interpretation of Art 33(2) of the Refugees Convention, if the Minister were free to apply a less stringent criterion under s 501(1) and its analogues, involving his exercising a very broad discretion, to refuse to grant the very same visa: Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.

[68]    That raises the question whether the Minister can use the general power in s 501(1) or its analogues in Pt 9 of the Act to refuse to grant or to cancel a protection visa, on a basis other than that specifically provided in s 36(1C). Ordinarily, general provisions conferring a power in an Act will not apply to another power that the Act confers that also prescribes the conditions for its exercise. Gavan Duffy CJ and Dixon J held in Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (and see too: David Grant & Co Pty Ltd (receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 276 per Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed at 269):

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

(emphasis added)

[69]    The Parliament enacted ss 36(1C) and 197C, as part of a suite of measures in the 2014 Amendments, to define Australia’s non-refoulement obligations and their limits. Importantly, a person who satisfied the criterion in s 36(1C), together with the other criteria prescribed in s 36 and any relevant regulation, was entitled, as of right, to be granted a protection visa under s 65(1)(a), unless, relevantly, s 501 “prevented” its grant (s 65(1)(a)(iii)). As I explained (in respect of the analogous s 501A) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [82]-[87], s 501(1) does not prevent the grant of a visa within the meaning of s 65(1)(a)(iii); it creates a discretionary power to refuse one in certain defined circumstances.

[70]    The criteria that s 36(1C)(b) prescribes require the Minister to act on “reasonable grounds” in considering whether a person is a danger to the Australian community, if, and only if, the Minister also considers on reasonable grounds that the person has been convicted by a final judgment of a particularly serious crime. That is, the Minister can only act under s 36(1C)(b) if facts exist which are sufficient to induce a reasonable person in the position of the Minister to consider that the applicant for the protection visa has been so convicted and also is a danger to the Australian community: George v Rockett (1990) 170 CLR 104 at 112 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Liversidge v Anderson [1942] AC 206 at 244-245 per Lord Atkin.

[71]    Importantly, s 36 does not provide that an applicant for a protection visa who satisfies the criteria in s 36(1B), (1C) and (2) may nevertheless be refused the visa under s 501(1). If that were the intention of the Parliament, then the specific and narrow criteria in s 36(1B) and (1C) that give statutory effect to Australia’s non-refoulement obligations would have no useful function since these could be overridden in every protection visa application by the use of the general power in s 501(1), regardless that the different criteria in s 36(1B) and (1C) had been met. And, equally, s 197C could then apply to a person who actually met the criteria in s 36(1B) and (1C) that the Parliament specifically enacted as objective preconditions for the grant of a protection visa, if the Minister were free to use a different power with different and less stringent standards (namely, that in s 501(1) or an analogue) in a manner that would put Australia in breach of its international obligations under Arts 32 and 33(2) of the Refugees Convention.

Justice Rares concluded as follows:

[88]    I am of opinion that, since the 2014 Amendments, s 501(1) is not, and is not intended or expressed to be, relevant to determining whether or not a person, in accordance with ss 35A(6) and 36, is entitled to (or may be refused) under s 65(1) a protection visa as a refugee (as now defined in the Act) or to whom Australia otherwise owes protection obligations. Rather, s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to refuse to grant a protection visa: …

25    Notwithstanding the persuasive manner in which Senior Counsel for the Respondent Minister repeated the same submissions – and developed the same submissions in this Court – it is respectfully concluded that the rejection of those submissions in BAL19 was not “plainly wrong”.

26    The decision in BAL19, it is understood, is the subject of a notice of appeal.

27    Having concluded that the decision in BAL19 is not “plainly wrong”, it is a decision which should thus be applied and followed by this Court in resolving the present proceeding.

28    Irrespective of whether the Respondent Ministers consider the decision to be “plainly wrong”, and irrespective of any personal assessment by the Respondent Ministers as to their prospects of success on appeal, the decision in BAL19 represents the law which those Ministers are bound to apply. A course not open to the Respondent Ministers, but a course which they seem to unlawfully and repeatedly persist in pursuing, is to continue to administer the law on their own understanding of what the law is (or what it “should be”), and not as settled in BAL19, or to equally unlawfully administer the law in a manner which they hope will be settled by the Full Court on appeal.

29    It should further be noted that Colvin J in BFW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562 (“BFW20”) has similarly concluded that the decision in BAL19 is not clearly wrong: [2020] FCA 562 at [132]. In so concluding Colvin J expressed the following views in respect to some of the reasoning of Rares J in BAL19:

Specific and general powers

[96]    Rares J also referred to established principle to the effect that an explicit statutory provision that prescribes the mode in which a specific power may be exercised operates to exclude general provisions which might otherwise have been relied upon for the exercise of the same power: at [68]. With due respect, there are issues with the application of those authorities as between the provisions that set out the criteria for a protection visa and s 501(1) which confers a discretion to refuse a visa application if the applicant does not pass the character test specified in s 501(6). The difficulty arises because there is no specific power to grant a protection visa. Rather, the source of the power to grant a visa is to be found in the general provision in s 65 which confers upon the Minister the power to grant a visa if the Minister is satisfied as to certain matters there specified. Section 65 is not confined to protection visas.

[97]    Therefore, s 65 is not aptly described as a source of specific power for protection visas. As a general source of power for the grant of all visas it may be expected that it would operate with s 501 in the same manner for all types of visas. Therefore, the principles identified in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 and subsequent cases may not be germane.

[98]    However, there remains the principle of statutory construction to the effect that each provision of an enactment is to be construed in a manner that is consistent with the language and purpose of all the provisions of the statute such that they give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] [70]. It is that broader principle that underpins the particular instance invoked by Rares J: Plaintiff S4/2014 at [43]. So, there was no error in Rares J considering whether a construction of s 501(1) that would allow its application in the case of a protection visa would be harmonious with the terms of the protection visa provisions. That is especially so when account is taken of the Parliament's stated intention to give effect to the Convention (an instrument which does not allow the refusal of protection to refugees on the basis of the exercise of a discretion that arises if the general language of the character test expressed in s 501(6) applies).

[99]    The Minister submitted that there was no ambiguity introduced by the statutory language. However, the ambiguity is introduced by the overlap in the subject matter of the protection visa provisions on the one hand (expressing criteria which if met may lead to the Minister being required to issue a visa) and the terms of s 501(1) on the other hand (expressing a broad discretion of a kind that mean that issues as to character that would not be sufficient to cause an applicant not to meet the criteria nevertheless give rise to a discretion to refuse the grant of the visa).

30    It does a considerable disservice to the reasoning of both Rares J and Colvin J to extract but part of their Honours’ detailed consideration of the arguments there sought to be advanced in both BAL19 and again in BFW20. The purpose served, however, in referring to parts of that reasoning is to both disclose the reasoning followed by both Rares J and Colvin J, and also to disclose the submissions advanced on behalf of the Respondent Ministers in each of those cases. It serves no useful purpose, with respect, to again set forth the same submissions advanced by the Respondent Ministers in the present proceeding. It is sufficient to note the submissions which have hitherto been advanced on behalf of the Respondents and to conclude that the manner in which those submissions have been resolved by Rares J and Colvin J is not “plainly wrong”. As observed by Colvin J:

[73]    The second question raises the application of a further principle that is fundamental to the effective administration of the law, namely one judge should follow the considered decision of another judge unless of the view that the decision is plainly wrong: Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75]; and Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492. Indeed, there is a judicial duty to do so: CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 at [49]. It is a duty that arises unless a judge is ‘convinced’ that the earlier decision is plainly or clearly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135].

That summary of the general principles to be applied when resolving the submission again repeated to this Court that the decision in BAL19 is “plainly wrong” is endorsed.

Jurisdiction – s 476A(1)(c)

31    In the event that the Court was to conclude that there has been unreasonable delay in the making of a decision under s 65 of the Migration Act, the Respondents next submit that “the Court lacks jurisdiction to order mandamus to require the Minister to make a decision under s.65 of the Act”. In essence, the submission is that the jurisdiction of the Court is confined by s 476A(1)(c) of the Migration Act and that the jurisdiction is relevantly confined to decision “made personally by the Minister under section… 501A”. That jurisdiction, so the submission runs, does not extend to the vesting in this Court of jurisdiction to review a decision made – or the refusal to make a decision – under s 65. Jurisdiction to review a decision made (or the refusal to make a decision) under s 65, so it is contended, is not a decision coming within s 476A(1).

32    Leaving aside for present purposes any question as to whether the facts of the present case warrant the grant of relief in the form of mandamus (or some other form of mandatory relief) by reason of unreasonable delay, it is concluded that the Court has jurisdiction to grant relief to compel consideration of the Applicant’s application for a protection visa.

33    Section 476A(1) of the Migration Act provides in relevant part as follows:

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:

…

(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;

…

34    For the purposes of s 476A, a “migration decision” is defined in s 5(1) of the Act as follows:

migration decision means:

(a)    a privative clause decision; or

(b)    a purported privative clause decision; or

(c)    a non-privative clause decision; or

(d)    an AAT Act migration decision.

Section 5(1) defines a “privative clause decision” as having the meaning given by s 474(2); defines a “non-privative clause decision” as having the meaning given by s 474(6); and a “purported private clause decision” as having the meaning given by s 5E.

35    Section 474 underlines the breadth of what the Commonwealth Legislature intended to fall within both what the Act describes as “privative” and “non-privative clause decisions” and in the manner in which the term “decision” is defined. Section 474 provides in relevant part as follows:

474    Decisions under Act are final

(1)    A privative clause decision:

(a)    is final and conclusive; and

(b)    must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)    is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)    In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3)    A reference in this section to a decision includes a reference to the following:

(a)    granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

……

(h)    conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

…

(j)    a failure or refusal to make a decision.

36    It is common ground that a decision made or proposed to be made pursuant to s 501A of the Migration Act falls within s 476A(1)(c). What is not common ground is whether the Court on the facts of the present case has jurisdiction to review a decision or a refusal to make a decision to grant or refuse a protection visa pursuant to s 65 of the Migration Act.

37    Although the course to be taken by a Court when a question of jurisdiction has been raised may not be certain (cf. Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109 at [4] to [6] per Branson J), some decisions have concluded that the question should be resolved at the outset (e.g., Bray v Hoffman-La Roche Ltd [2003] FCAFC 153 at [239], (2003) 130 FCR 317 at 370 per Finkelstein J; Mehmood v Attorney-General (Cth) [2013] FCA 287 at [10], (2013) 217 FCR 544 at 546 to 547 per Flick J). On the facts of the present case, it is considered that the question should be resolved in advance of any consideration as to whether there has been any unreasonable delay in the Ministerial resolution of the Applicant’s application for a protection visa and whether any relief should be refused for discretionary reasons.

38    The submission as to an absence of jurisdiction is rejected.

39    The terms in which the jurisdiction vested in this Court by s 476A is expressed identifies four classes of decision, namely those identified in paras (a) to (d). And a decision made pursuant to s 65 is not one of those identified. But to confine those matters entrusted to this Court’s jurisdiction to those four matters alone is, with respect, to ignore the potential width of application on the facts of an individual case as to what may fall within the phrase “in relation to”. That is a phrase “of wide and general import, [and] should not be read down in the absence of some compelling reason for so doing”: Fountain v Alexander (1982) 150 CLR 615 at 629 per Mason J. As in that case, there is no “compelling reason” for reading down in the present case the width of that phrase when employed in s 476A.

40    On the facts of the present case, the decision to be made in respect to the application for a protection visa and the decision to be made pursuant to s 501A(2) are inextricably intertwined. They have remained inextricably linked since at least the February 2020 decision of the Minister. And the 2 June 2020 letter expressly acknowledges that the decision-making path proposed to be followed by the Minister is again to consider the Applicant’s outstanding application for a protection visa in the context of setting aside the Tribunal decision and the refusal of a visa under s 501A(2) of the Migration Act.

41    It is respectfully concluded that for the purposes of s 476A(1), the phrase “in relation to” refers to a factual analysis as to the manner in which a statutory power is sought to be exercised. The phrase does not refer exclusively to whether discrete sources of statutory power can be identified as a pure matter of statutory construction, but rather to the manner in which a decision-maker seeks to exercise any such powers as may be available to resolve an application made by a claimant.

42    On the facts of the present case, the June 2020 letter expressly sets forth that the context in which the power conferred by s 501A(2) is to be exercised is as part of the review of the October 2018 Tribunal decision. The decision being reviewed by that Tribunal was the decision of the delegate made in August 2018 to refuse to grant the Applicant a protection visa.

43    A decision as to whether the October 2018 decision of the Tribunal should be set aside and whether the grant of a protection visa is appropriate, is thus a matter “in relation to” the jurisdiction to review the “migration decision” expressly vested in this Court by s 476A(1)(c), namely original jurisdiction to review a “decision” proposed to be “made personally by the Minister under … s 501A…”.

Unreasonable delay

44    A conclusion that the Court has jurisdiction to grant relief in the form of mandamus in the present proceeding leaves open the question as to whether there has been “unreasonable delay” such as to warrant the grant of such relief. Expressed slightly differently, and as expressed in the first prayer for relief in the Amended Originating Application, has there been a failure to make a decision in respect to the application for a protection visa “within a reasonable time”?

45    In BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 (“BMF16”), Bromberg J helpfully set forth the following principles when entertaining a submission that there has been “unreasonable delay”, namely:

[27]    The tenor or underlying rationale for the approach taken in the authorities is consistent with the proposition that a delay which has not been justified or satisfactorily explained is to be regarded as unreasonable: … Many of those cases suggest that the onus (or at the least the evidentiary onus) of demonstrating that a delay is justified, may fall upon the decision-maker. That approach is expressly taken by the Canadian cases to which I have just referred where, in considering whether mandamus should issue, a delay will be considered unreasonable if:

(i)    The delay has been longer than the nature of the process required, prima facie;

(ii)    the applicant is not responsible for the delay; and

(iii)    the authority responsible for the delay has not provided satisfactory justification.

[28]    In these proceedings the Minister accepted that he bore the practical onus of establishing by evidence that there was a reasonable explanation for the delay. The concession was properly made. As I will explain, the delays in question were caused by very lengthy periods of inactivity. The extent of inactivity in the processing of the applications calls for a meaningful explanation to be provided by the Minister as to why that inactivity occurred and why the delay thereby caused ought not be regarded as unreasonable.

[29]    The time taken to actively consider and assess an application for citizenship is unlikely to provide a foundation for a claim of unreasonable delay. But inactivity, long periods where an application simply sits around waiting to be processed or waiting for some particular step in the process to be taken, provide a more compelling basis for establishing unreasonable delay. Thus, for instance, the unexplained failure of the decision-maker to take steps to request or obtain further information was a weighty consideration in Wei (see at 476). The failure to provide an applicant with a timely interview was an important consideration in Oliveira (at [19]). In that case, the Privy Council considered that making allowance for “the customary way of doing things in Antigua”, in general and absent special considerations, the “outside limit of reasonable time” for the processing of a citizenship application was 12 months (at [42]). The Privy Council also recognised that special factors personal to the applicant can be taken into account in determining a reasonable time limit (at [45]). The hardship or personal consequences of a delay upon an applicant was also taken into account in Wei (at 477) and in Dragan at [56]–[57] (cf Thornton at 493).

(citations omitted).

46    More recently, in AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27, (2019) 268 FCR 424 at 434 Besanko and Thawley JJ have observed (at 434):

[59]    … As to onus, it was for the appellant to show that there was unreasonable delay affecting the jurisdiction to make the decision. If the appellant established a delay which called for explanation, then the persuasive onus might shift to the Minister to establish what that explanation was. In considering whether the appellant discharged her onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969. That is a principle which authorises a particular form of reasoning.

47    The Applicant’s application for a protection visa was made in December 2016. It was in October 2018 that the Tribunal set aside a delegate’s decision to reject the application. Between May and November 2019 there was no response to inquiries made on behalf of the Applicant as to the progress of his application. But in February 2020 a decision was made to set aside the Tribunal decision and to refuse the visa application. That decision of the Minister was set aside by consent in March 2020.

48    In April 2020, there was internal consideration given to the visa application. On 8 April 2020, a delegate “assessed the applicant as meeting the criteria in s 36(1B) and that he met the criteria in s 36(1C) of the Act”. On 20 April 2020, a delegate “made an indicative finding that the applicant met all of the criteria for the grant of the SHEV”. On 21 May 2020, “a delegate referred the indicative decision for quality checking”.

49    In late May 2020, there had also been internal Departmental consideration given to the preparation of a “Client brief” to be sent to the Minister in respect to a decision being made by the Minister under s 501A(1) of the Migration Act.

50    Whether or not the Departmental officers involved in the April and May 2020 assessments were the same as those involved in the materials being collated for the decision to be made as notified in the June 2020 letter is not disclosed in the evidence. Nor is it disclosed whether the materials being prepared in April and May 2020 were different to and (if so) the extent of any differences between that material and the materials previously prepared for the:

    August 2018 decision of the delegate;

    the proceedings which culminated in the October 2018 Tribunal decision; and

    the February 2020 Ministerial decision.

Presumably materials were being updated – but beyond that it would certainly seem to be the case that the facts and circumstances surrounding the Applicant have been well canvassed over many years.

51    The evidence relied upon by the Respondent Ministers in the present case also discloses (inter alia):

    the number of cases under consideration by the Minister in about October 2018; and

    the Government being in “care-taker” mode in April/May 2019 and the allocation and re-allocation of Ministerial responsibility for the making of decision in August/November 2019.

It would seem that there has been active consideration of the decisions to be made affecting the Applicant since February 2020.

52    The “practical onus of establishing by evidence that there was a reasonable explanation for the delay” rests on the Minister: BMF16 [2016] FCA at [28].

53    It is concluded that the Applicant has discharged the onus of establishing that there has been “a delay which called for explanation”: AQM18 [2019] FCAFC at [59], (2019) 268 FCR at 434 per Besanko and Thawley JJ. That conclusion is reached because:

    the Applicant was assessed or “indicatively found to engage protection obligations” in July 2017; found to satisfy the character test under s 501 in October 2018; again on 8 April 2020 assessed to meet the criteria in s 36(1B) and s 36(1C); and on 20 April 2020 indicatively found to meet all of the criteria for the grant of a protection visa – in other words, there has been repeated Departmental consideration of these matters over a period of time extending from as far back as about four (4) years and, despite such repeated assessments, the Applicant’s application still remains unresolved.

To a lesser extent there has also been delay:

    between February and May 2020 – although there has been Departmental consideration being given to the decisions to be made in respect to the Applicant, left unexplained is what further or different consideration was necessary to supplement the materials previously relied upon by either the delegate in August 2018 or prior to the decision made in February 2020. The more detailed the prior consideration given to those matters of relevance, the less (presumably) the need to “re-invent the wheel” thereafter. If there were further matters which warranted new findings to be made or further evidence obtained, it was left unexplained by the Respondents’ evidence.

54    And such delay as has occurred in the decision-making process, it is respectfully concluded has been “unreasonable” by reason of:

    the fact that the decisions to be made affect the very liberty of a person;

    the failure to apparently even consider the granting of a bridging visa (as was first done in August 2013) or some other form of visa to effect the release of the Applicant from immigration detention pending whatever Departmental assessments had to be undertaken before a final decision could be taken;

    the passage of time between December 2016 and the present date;

together with:

    the absence of any explained need to supplement, rather than to assess afresh, materials previously collated for like decision-making tasks; and

    the fact that the Applicant made a series of requests between May and November 2019 for an update on the progress of the application for a protection visa and those requests were met with silence from the Department and the Respondent Ministers.

Although such facts may themselves support a finding of “unreasonable” delay, that finding is only reinforced by:

    the reasons given by the Minister in February 2020 stating that Minister exercised his “discretion under s 501A(2) of the Act to set aside the original decision and refuse to grant [the Applicant’s] Safe Haven Enterprise (Class XE) visa” notwithstanding that his Department had found the Applicant to be “a person in respect of whom Australia has non-refoulement obligations”; and

    the terms of the letter dated 2 June 2020 – that letter again exposing the active consideration being given to whether he should refuse to grant a visa under s 501A(2) of the Migration Act, whilst at the very same time considering whether to set aside a decision of the Tribunal which reviewed a decision refusing to grant a visa.

The February 2020 reasons and the 2 June 2020 letter reinforce the continued reliance sought to be placed by the Respondent Ministers upon s 501A(2) in a factual context where consideration is also being given to whether to grant or refuse a protection visa. If BAL19 be correct, and the Minister is bound to apply the law as set forth in that decision, it was not open to the Minister to pursue such a course. It was not open to the Minister when considering the fate of a protection visa application to pursue a course contrary to the law as settled by BAL19. The Minister could not, for example, administer the law contrary to BAL19 in the hope that that decision may be reversed on appeal.

55    Specifically rejected is the submission advanced in writing on behalf of the Respondent Ministers that there would not be unreasonable delay “even if the Minister were to suspend consideration of the visa application while awaiting judgment from the Full Court”. It may well be correct to contend, as did the Respondent Ministers, that “the reasonableness of the delay on the part of the Commission is a matter for objective determination, the question being whether a reasonable man acting in good faith could consider the decision to delay until the High Court hands down its judgment as appropriate or justified in the circumstances, or whether it was capricious and irrational”: Thornton v Repatriation Commission (1981) 52 FLR 285 at 291 per Fisher J. There in issue was the reasonableness of the Commission deferring consideration of a claim pending a High Court decision. On the facts of the present case, a reasonable man would be most concerned if the Respondent Ministers “suspend[ed] consideration of the visa application” in circumstances where to do so would result in the continued detention of and deprivation of the liberty of the Applicant.

56    It is “unreasonable” for the Minister to take any time at all in making a decision whether to grant or refuse a protection visa by reference to whether a decision can or should be made pursuant to s 501A(2). A reasonable man, it is considered, would consider it to be the job of the Respondent Ministers to apply the law as presently settled by the decision of Rares J in BAL19.

57    The delay, to employ the language of Bromberg J in BMF16 “has not been justified or satisfactorily explained”: [2016] FCA 1530 at [27].

58    It is thus concluded that there has been “delay” in the making of a decision in respect to the protection visa application first made in December 2016 and that such delay is “unreasonable”.

59    Given the conclusion that the Court has jurisdiction to make an order in the nature of mandamus and the conclusion that there has been “unreasonable delay” in the making a decision, it follows that the Court can make an order compelling the Minister to make of a decision.

60    Whether or not such an order should be made, nevertheless, involves an exercise of discretion. In the exercise of the Court’s discretion, it is presently considered that no such order should now be made, given:

    the expectation that the Respondents will abide by the declaratory relief to be granted and the absence (presumably) of any necessity to issue an injunction restraining any consideration by the Respondents that is contrary to the law as set forth in BAL19; and

    the expectation arising from the consideration being given to the Applicant’s circumstances in April/May 2020 and the 2 June 2020 letter that a decision can be expected without further delay.

If those expectations are not fulfilled, an application can be made in the present proceeding seeking such further orders as may then be necessary.

CONCLUSIONS

61    It has been concluded that the course of decision-making being pursued by the Respondents in the present proceeding is contrary to the decision of Rares J in BAL19. It has further been concluded that that decision is not “plainly wrong” and should be followed by the Respondents.

62    It has also been concluded that there has been unreasonable delay in the consideration of the application for a protection visa first made in December 2016.

63    That application should be resolved forthwith.

64    Although it may have been preferable to express the reasons for decision in the present proceeding in greater detail, it has been considered prudent to publish the present reasons “sooner rather than later”. The ability to express the present reasons in very summary form has been made possible by the detailed reasons of both Rares J in BAL19 and those of Colvin J in BFW20. Those decisions set forth much the same arguments as were relied upon in the present proceeding as to why BAL19 was “plainly wrong”. Whatever may be the fate of the appeal in BAL19, it is respectfully concluded that until the arguments have been resolved by a Full Court, the principles set forth by Rares J should be followed and applied by a single Judge. Even more so, those principles should be applied by the Respondent Ministers.

65    The present state of the law is that the Respondents lack power under ss 501(1) or 501A(2) to refuse to grant a protection visa.

66    Although the Court has jurisdiction to grant relief in the form of mandamus to compel the Minister to make a decision, such relief has been refused in the exercise of the Court’s discretion by reason of an expectation that a decision will shortly be made, and made in accordance with the principles settled by BAL19. If those expectations do not come to pass, liberty is reserved to the Applicant to apply for further orders – including an order that a decision be made within a specified time. Although only the Applicant sought an order reserving liberty to apply for further orders, liberty should also be reserved to the Respondents should it be necessary to do so.

67    It was agreed that costs should follow the event.

THE COURT DECLARES THAT:

1.    The Respondents have failed to make a decision with respect to the Applicant’s application for a Safe Haven Enterprise (Class XE) visa within a reasonable time.

AND THE COURT ORDERS THAT:

1.    Leave is granted to the Applicant to amend the Originating Application in the form dated 3 June 2020, subject to Particular (xiii) to Ground 1 being amended to read “… the Applicant was provisionally assessed as meeting all the criteria for the grant of a Safe Haven Enterprise visa”.

2.    Leave is reserved to the parties to apply for further orders to give effect to the reasons of the Court in the present proceeding.

3.    The Respondents are to pay the costs of the Applicant, either as agreed or taxed.

Associate:    

Dated:    10 June 2020