FEDERAL COURT OF AUSTRALIA

AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858

ORDERS

THE COURT ORDERS THAT:

1.    On or before 4.00pm on 26 June 2020 the First Respondent is to make a decision in respect to the Applicant’s application for a Safe Haven Enterprise (Class XE) visa made on or about 19 December 2016 on the basis that s 501A(2)(a) of the Migration Act 1958 (Cth) does not empower the refusal of the application.

2.    The parties have liberty to apply on 24 hours’ notice in writing.

3.    The First Respondent is to pay the costs of the Applicant either as taxed or agreed.

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

REASONS FOR JUDGMENT

FLICK J:

1    This proceeding has a long history.

2    That history need not presently be repeated. It is sufficient for present purposes to note that on 19 May 2020 an Originating Application was filed in this Court by the Applicant. The hearing was conducted on 4 June 2020. Judgment was delivered and orders made on 10 June 2020: AFX17 v Minister for Home Affairs [2020] FCA 807. The reason for the expedited hearing and early delivery of judgment was occasioned by both the fact that the Applicant remains in detention and that the prior history of decision-making dates back to at least the end of 2019.

3    The proceeding concerned the delay of the Minister in making a decision as to whether to set aside of a decision of the Administrative Appeals Tribunal in respect to an application for a protection visa and a decision as to whether a protection visa could be refused pursuant to s 501A of the Migration Act 1958 (Cth) (the “Migration Act”).

4    The earlier reasons for decision published on 10 June 2020 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”: [2020] FCA 807 at [61]. The reference to BAL19 was a reference to BAL19 v Minister for Home Affairs [2019] FCA 2189. In that decision Rares J had concluded:

[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: …

(citations omitted).

It was further concluded in the 10 June 2020 reasons that the decision in BAL19 was “not ‘plainly wrong’ and should be followed by the Respondents”: [2020] FCA 807 at [61].

5    The reasons published on 10 June 2020 also included the following observation:

[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.

6    Those reasons also included a conclusion that the Court had jurisdiction to issue a writ of mandamus requiring a decision to be made. The reasons nevertheless went on to conclude:

[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.

7    The Respondent Ministers up to judgment were “unlawfully and repeatedly persist[ing] in pursuing” a course of decision-making contrary to the decision in BAL19. That course of decision-making, regrettably, is continuing. Subsequent to orders being made on 10 June 2020, the solicitor for the Respondents was put in the unenviable position of advising those representing the Applicant by way of email as follows:

As the Minister has now appealed the judgment of Justice Flick, no decision will be made on your client’s visa application pending the outcome of the appeal. The Minister’s position is that s 501A is an available power in relation to your client’s visa application and that Justice Flick was in error in finding that the delay in making such a decision was unreasonable and that s 501A was not an available power in the circumstances of this matter. Any decision made prior to the resolution of the appeal as to whether BAL19 was wrongly decided would render the appeal moot.

Expressed as it is, not only is such a course of decision-making contrary to BAL19, it is also now contrary to the reasons given in the present proceeding. Those reasons expressly stated that such a course was “not open” to the Respondent Ministers: [2020] FCA 807 at [28]. Regrettably, by that email “the Minister” has intentionally opted not to comply with the law. An order is thus necessary to ensure that “the Minister” responsible for administering the Migration Act does so in accordance with law. The stance of “the Minister”, expressed as it is, makes a mockery of any concept of the Minister acting as a model litigant.

8    Pursuant to liberty to apply reserved to the parties in the 10 June 2020 orders, the Applicant now seeks an order that a decision be made by close of business today. The Respondent Ministers have not sought to invoke the liberty to apply also reserved to them to seek any supplemental order to those made on 10 June 2020 pending the hearing and resolution of the appeal.

9    It is proposed to make an order of the kind sought by the Applicant, albeit an order permitting more time in which a decision is to be made, but otherwise requiring a decision to be made in accordance with the reasons published on 10 June 2020. Senior Counsel for the Respondents has submitted that the order should most appropriately be made as against the First Respondent. The order to be made will require a decision to be made on or before 4.00pm on 26 June 2020.

10    In the absence of such an order being stayed, the Applicant (or the Court of its own motion) may have to consider what further order (if any) should be made. Parties to a proceeding who fail to comply with orders made are possibly guilty of a contempt of court and thereby exposed to sanctions ranging from the imposition of a fine through to (in an appropriate case) imprisonment. In the absence of argument, there is no self-evident reason why even a Minister of the Crown should not comply with orders made by this Court and, if found guilty of contempt, liable to the same penalties as any other litigant. It is, to say the least, regrettable that those responsible for administering the Migration Act in accordance with law have deliberately decided to administer that legislation in a manner contrary to law.

THE COURT ORDERS THAT:

1.    On or before 4.00pm on 26 June 2020 the First Respondent is to make a decision in respect to the Applicant’s application for a Safe Haven Enterprise (Class XE) visa made on or about 19 December 2016 on the basis that s 501A(2)(a) of the Migration Act 1958 (Cth) does not empower the refusal of the application.

2.    The parties have liberty to apply on 24 hours’ notice in writing.

3.    The First Respondent is to pay the costs of the Applicant either as taxed or agreed.

Associate:    

Dated:    17 June 2020