FEDERAL COURT OF AUSTRALIA

AFX17 v Minister for Home Affairs (No 3) [2020] FCA 890

ORDERS

THE COURT ORDERS THAT:

1.    Until further order, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) access to the affidavit of the Applicant dated 22 June 2020, the affidavit of Ms Alison Battisson dated 23 June 2020, and the affidavit of Ms Dale Watson dated 23 June 2020 is restricted to the parties and their counsel and instructing solicitors.

2.    Order 1 as made on 17 June 2020 is varied such that:

(a)    the time within which a decision is to be made is extended to midday on 3 July 2020; and

(b)    there is deleted from Order 1 the words “on the basis that s 501A(2)(a) of the Migration Act 1958 (Cth) does not empower the refusal of the application”.

3.    There is no order as to costs in respect to the present application.

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

REASONS FOR JUDGMENT

FLICK J:

1    This is the third decision in the present proceeding. It concerns an Applicant who is seeking a protection visa and who, at present, is in immigration detention at the Yongah Hill Immigration Detention Centre outside Perth.

2    On 10 June 2020 a decision was made that there had been a failure to make a decision with respect to the Applicant’s application made in December 2016 for a Safe Haven Enterprise (Class XE) visa within a reasonable time: AFX17 v Minister for Home Affairs [2020] FCAFC 807. On 17 June 2020 a second decision was made requiring a decision to be made in respect to that application on or before 4.00pm on 26 June 2020, “on the basis that s 501A(2)(a) of the Migration Act 1958 (Cth) does not empower the refusal of the application”: AFX17 v Minister for Home Affairs (No 2) [2020] FCAFC 858. In the orders then made, liberty was reserved to the parties to make a further application.

3    Since 17 June 2020 two applications have been made invoking the liberty to apply.

The first application – fear of physical harm

4    The liberty to apply was first exercised by the Applicant on 23 June 2020. The application as first made was to vary the order made on 17 June 2020 and to require a decision to be made on or before 4.00pm on 23 June 2020. When the matter was called on for hearing yesterday, the application was amended to seek an order that a decision be made “forthwith”.

5    Before the Court were three affidavits – one from the Applicant; another from his legal representative; and one filed on behalf of the Respondents. As explained by the Applicant, the factual basis of the application was expressed as a fear of physical harm. The details of that fear attracted an order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth).

6    The application itself, however, was somewhat curious. As expressed, the application to vary the order made on 17 June 2020 so as to require a decision to be made by 4.00pm or “forthwith” would not necessarily address the Applicant’s concerns for his safety. The decision to be made by the Minister is, at present, unknown. He may grant or refuse to grant the Applicant a protection visa – or, possibly, some other form of visa permitted by a variation of the orders pending further consideration. If the decision were to refuse to grant any form of visa, however, the Applicant’s concerns as to his safety would remain. He would remain in detention and remain exposed to the prospect of physical harm. Rejected is any submission advanced on behalf of the Applicant that it could reasonably be expected that a visa would be granted. A decision to be made on the merits, but a decision to be made in accordance with law, remains within the control of the Minister. The concern of this Court is (generally expressed) confined to questions of law; questions of fact remain matters for the Minister.

7    Without descending into the detail of the fear being expressed by the Applicant, it is sufficient to state that the application made by the Applicant was refused yesterday either because:

    the concerns as to safety were being adequately addressed by moving the Applicant to a different area of the Yongah Hill Immigration Detention Centre and the proposal to further remove him (with his consent) to an entirely different Immigration Detention Centre in Perth; and

    it would have been totally unreasonable, let alone practically realistic, to order the First Respondent to make a decision – not by the time previously ordered – but rather within half-an-hour or possibly even less time. Although on other occasions the First Respondent has proved ready to make quick decisions, and decisions even within a matter of minutes adhering to – if not impermissibly seeking to implement – a prior course of decision-making which had been set aside by this Court (and has done so without giving proper consideration to the materials before him) (cf. Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, (2017) 252 FCR 352), the integrity of decisions made by this Court turn upon (inter alia) the reasonableness of the orders made. The order sought by the Applicant that a decision be made “forthwith”, and presumably prior to 4.00pm, would have imposed upon the First Respondent an unreasonable time frame and one possibly inconsistent with his giving a proper consideration to the available materials.

8    For these reasons the application made on 23 June 2020 by the Applicant was refused.

The second application – a decision of the Full Court

9    The second of the applications to come before the Court as presently constituted was made this morning by the First Respondent.

10    The order made on 17 June 2020 ordered the First Respondent to make a decision “[o]n or before 4.00pm on 26 June 2020” and to do so “on the basis that s 501A(2)(a) of the Migration Act 1958 (Cth) does not empower the refusal of the application”.

11    The application made by the First Respondent this morning was an application to either:

    vacate that order in its entirety; or

    vary the order by extending the time within which a decision is to be made and to delete the requirement that the decision be made on the stated basis.

Although it is understood that a separate application is to be made before another Judge of this Court at 4.00pm this afternoon to stay that order, the solicitor for the First Respondent was understood to accept that the Court as presently constituted both had power to vary the order, and that it was appropriate for the Court to do so if it thought fit.

12    The basis upon which that application was made was understood to be founded upon:

    a notice having been given to the Applicant inviting his submissions as to the proposal to give consideration to s 501A, a notice presumably not given until after 17 June 2020; and

    the decision of the Full Court delivered yesterday: KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (“KDSP”).

The latter basis should be considered first.

13    One of the two Grounds of Appeal in KDSP focussed on whether “the power to refuse the grant of a visa in s 501 [was] available to be exercised by the Minister in relation to an application for a protection visa…”. The presiding member of that Court, Bromberg J, “respectfully disagree[d] with the holding in BAL19 that s 501 is not available or applicable in relation to a decision to refuse a protection visa”: [2020] FCAFC 108 at [104]. The other two members of the Court in a joint judgment, O’Callaghan and Steward JJ, “with very profound respect, [could not] agree with the conclusion reached in BAL19 that s. 501(1) cannot be applied to refuse the grant of a protection visa”: [2020] FCAFC 108 at [302]. Their Honours continued on to conclude “that the Minister had the power to refuse the protection visa here pursuant to s. 501A of the Act”. All three Judges thus concluded that s 501 of the Migration Act 1958 (Cth) was an available source of power when considering a protection visa application, and all three Judges departed from the reasoning in BAL19 v Minister for Home Affairs [2019] FCA 2189.

14    The order as made on 17 June 2020 was founded upon two considerations, namely:

    a conclusion that there had been unreasonable delay on the part of the Respondents and a manifest intention on the part of the Respondents to continue to defer making a decision pending a Full Court resolving the issues presented in BAL19; and

    a conclusion that BAL19 at the time the order was made represented the law and a further conclusion that the First Respondent was unequivocally manifesting an intention to pursue an unlawful course of conduct in refusing to apply the law.

15    The conclusion previously expressed in the reasons for decision on 10 June 2020 as to there being unreasonable delay is adhered to. But the latter consideration has obviously been impacted by the decision in KDSP. The law as now settled by that decision of the Full Court is that s 501 is a source of power available to the First Respondent when entertaining an application for a protection visa. And, as previously recognised, there is no relevant distinction for present purposes between s 501 and s 501A.

16    Pending any further application that may be made for special leave to appeal the decision of the Full Court to the High Court of Australia, the decision in KDSP now states the law to be henceforth applied. It should nevertheless again be unequivocally stated that the Minister was acting contrary to law when previously not applying the decision in BAL19. That was the law when the Minister was called upon to make a decision. The Minister is not above the law; he cannot unilaterally assume a power of not administering the law and hope that the law may be changed at some time in the future. The continued deprivation of the liberty of the subject cannot yield to some Ministerial hope that the law may change in a manner which the Minister may personally consider preferable because that change may confer more discretionary power rather than less power. Although he may quite properly lobby in his capacity as a Member of Parliament for a change in the law, when administering the law his responsibility is at all times to do so in accordance with the law as then stated.

17    Given the decision in KDSP, the order made on 17 June 2020 should thus be varied by deleting the requirement that a decision be made on the stated basis.

18    That leaves open the application made by the Minister to vary the time by which the decision is to be made.

19    In the absence of an order compelling a decision to be made by a specified time, this Court can express no confidence in this particular Minister making any decision “forthwith” ([2020] FCA 807 at [63]) or within a reasonably short period of time. This Minister has previously demonstrated an unwillingness to comply with the reasons of the Court in the absence of an express order. A previous settled practice whereby a court could expect a Minister to make a decision “in accordance with law” has apparently been shunned by the First Respondent. The order, to the extent that it requires a decision to be made by 4.00pm on 26 June 2020, should nevertheless be varied so as to permit more time given the change in circumstances occasioned by the decision of the Full Court in KDSP.

20    If there is a factual basis upon which the order made on 17 June 2020 and as now varied should be stayed or further varied, that application can be made to the Court differently constituted this afternoon.

CONCLUSIONS

21    The first order made on 17 June 2020 should be varied to reflect the change in the law as stated by the Full Court in KDSP.

22    That order should be further varied to extend the time within which a decision is to be made.

THE ORDERS OF THE COURT ARE:

1.    Until further order, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) access to the affidavit of the Applicant dated 22 June 2020, the affidavit of Ms Alison Battisson dated 23 June 2020, and the affidavit of Ms Dale Watson dated 23 June 2020 is restricted to the parties and their counsel and instructing solicitors.

2.    Order 1 as made on 17 June 2020 is varied such that:

(a)    the time within which a decision is to be made is extended to midday on 3 July 2020; and

(b)    there is deleted from Order 1 the words “on the basis that s 501A(2)(a) of the Migration Act 1958 (Cth) does not empower the refusal of the application”.

3.    There is no order as to costs in respect to the present application.

Associate:    

Dated:    24 June 2020