FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v AFX17 [2020] FCA 903

ORDERS

THE COURT ORDERS THAT:

1.    The application for a stay of Order 1 made on 17 June 2020 (as varied by Order 2 made on 24 June 2020) in NSD550/2020 is refused.

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

REASONS FOR JUDGMENT

WHITE J:

1    This is a judgment on an application for a stay of an order of the Court pending the hearing and determination of the appeal against the making of that order.

2    The principles which the Court applies in exercising the discretion under r 36.08 of Federal Court Rules 2011 (Cth) (the FCR) to grant a stay pending the hearing and determination of an appeal are settled. See, by way of example, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615 at [12]. The appellant has the onus of establishing that the stay is appropriate. The matter is not to be approached on the basis that the first instance decision is provisional or operates only subject to confirmation on the appeal. Successful litigants are, prima facie, entitled to the benefit of their success. On the other hand, an important consideration is whether, in the event that a stay is not granted, the exercise of the appeal rights will be rendered nugatory. An applicant for a stay is also generally required to establish that the grounds of the appeal are reasonably arguable. Any disentitling conduct by the appellant may also be pertinent.

3    The respondent to the appeal, who has been given the pseudonym AFX17, is an applicant for a Safe Haven Enterprise Visa (SHEV). He made that application on 19 December 2016. It was refused by a delegate of the Minister on 8 August 2018. On 23 October 2018, the Administrative Appeals Tribunal (the AAT) set aside the delegate’s decision and remitted the matter to the Minister with a finding that AFX17 passed the character test under s 501 of the Migration Act 1958 (Cth) (the Act).

4    Following the commencement of proceedings in this Court by AFX17 in December 2019 in which he alleged unreasonable delay in the making of a decision on his application for a SHEV, the first appellant (the Minister for Home Affairs) made a decision on 25 February 2020 under s 501A(2) of the Act to set aside the October 2018 decision of the AAT and refused the grant to AFX17 of a SHEV.

5    By consent orders made on 26 March 2020, the Court set aside the Minister’s decision.

6    There being no further action on the visa application, AFX17 commenced fresh proceedings in this Court on 20 May 2020. Just on two weeks later, on 2 June 2020 he was notified that the Minister intended again considering the refusal of his application for a SHEV under s 501A(2) of the Act. The Minister invited AFX17 to make any submissions within 28 days.

7    The proceedings were heard on 4 June 2020. In the judgment delivered on 10 June 2020, the Judge made a declaration that the two appellants, the Minister for Home Affairs and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, had failed to make a decision with respect to AFX17’s application for a SHEV within a reasonable time: AFX17 v Minister for Home Affairs [2020] FCA 807. Although the Judge was satisfied that the Court had power to issue a writ of mandamus directed to the Ministers, he refrained from doing so on the basis of his expectation that the Ministers, as responsible Ministers and in compliance with the usual convention, would abide by the declaratory order. At the same time, the Judge reserved liberty to the parties to apply for further orders should that be necessary.

8    One of the principal issues before the Judge was whether the Minister could apply s 501A(2) (concerning the application of the character test) in order to refuse the grant of the visa to AFX17. This was so because it was accepted that AFX17 otherwise satisfied the criteria under ss 36 and 65 of the Act for the grant of the SHEV.

9    The decision of Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189 indicated that s 501 and its cognates could not be invoked in relation to applications for protection visas. The decision in BAL19 is itself subject to appeal and its correctness has been raised in other proceedings. However, the Judge considered that BAL19 was not plainly wrong and, in accordance with the usual principles of comity, should be followed.

10    The Judge’s expectation that the Minister would act in accordance with the declaration was well founded: Franklin v The Queen (No 2) [1974] QB 205 at 218; Davies v Minister for Urban Development and Planning [2011] SASC 87, (2011) 109 SASR 518 at [24].

11    However, on this occasion, the Minister did not act in accordance with the Court’s declaration. AFX17 then applied for a writ of mandamus. The Judge heard that application on 17 June 2020. His Honour then made the following orders:

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.

12    The Judge’s reasons (published as AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858 (AFX17 (No 2)) indicate that the Judge was concerned to give effect to the principle that the orders of the Court are to be respected and complied with, even when the unsuccessful party considers that a judgment on which the Court has relied is wrong and should not be followed. In this respect, his Honour said in the judgment on 10 June 2020:

[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.

13    In AFX17 (No 2), the Judge recorded at [7], that:

“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.

14    The Ministers’ application for the stay of Order 1 in AFX17 (No 2) was filed on the afternoon of 18 June 2020 and initially listed for hearing on the afternoon of Tuesday, 23 June 2020. Subsequently, it was relisted for hearing on the afternoon of 24 June 2020.

15    In the meantime, on the afternoon of 23 June 2020, the Full Court (Bromberg, O’Callaghan and Steward JJ) delivered judgment in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108. It was common ground that the judgment in KDSP had the effect of overruling the reasoning in BAL19.

16    Further, on 24 June 2020, the Full Court (Allsop CJ, Kenny, Besanko, Mortimer and Moshinsky JJ) announced its orders in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 and in BGS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, but with reasons to be published later. The effect of the orders was also to overrule BAL19.

17    On the morning of 24 June 2020, the primary Judge heard two applications made in the exercise of the grant of liberty to apply granted in the orders made on 10 and 17 June 2020. The first was an application by AFX17 seeking a variation of the order made on 17 June 2020 so as to require a decision to be made on his application for a SHEV “forthwith” (initially the respondent had sought a variation to require the order to be made by 4 pm on 23 June 2020). The Judge had called that application on for hearing on 23 June 2020 but it was heard on 24 June 2020. The second application was from the Minister for Home Affairs. It sought the vacation altogether of the order made on 17 June 2020 or, alternatively, the variation of the order by extending the time within which a decision was to be made and by deleting the requirement that the decision be made on the basis that s 501A(2)(a) did not empower the refusal of the visa application. It is evident that that application was made in the light of the decision of the Full Court in KDSP.

18    The Judge refused the application of AFX17 and refused the Minister for Home Affairs’ application for the vacation of the order of 17 June 2020. However, his Honour did vary the order in the way which the Minister had sought in the alternative. The Judge’s order is as follows:

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”.

19    On the hearing of the stay application, counsel for the Ministers accepted that, without a stay, the Minister for Home Affairs will be required to make the decision on AFX17’s application for the SHEV by midday on Friday, 3 July 2020.

20    The submissions on the stay application were made with reference to the Ministers’ Amended Notice of Appeal filed on 18 June 2020. The Amended Notice impugns both the order made on 10 June 2020 and the order made on 17 June 2020 (now varied). It contains two substantive grounds: first, a contention that the Judge had been wrong in finding that the delay in the making of the decision under s 65 of the Act on AFX17’s application for a SHEV was unreasonable; and, secondly, a contention that the Judge had been in error in concluding that the Court had jurisdiction to determine a claim for mandamus requiring the Minister to make a decision under s 65 of the Act.

21    The basis upon which the Ministers seek the stay is disclosed in the two affidavits of Ms Watson, an Australian Government Solicitor lawyer who has the conduct of the matter on behalf of the Ministers. In her affidavit of 18 June 2020, Ms Watson deposed:

[3]    On 18 June 2020 I was informed by my instructing officer from the Department of Home Affairs, and verily believe, that, with the exception of any consideration of the exercise of the discretion under s 501A(2)(a) of the Act, that all other relevant criteria for the grant of the visa have been indicatively assessed as being satisfied. It is therefore highly likely that, absent any exercise of that discretion, the decision maker would be required to grant the visa under s 65(1)(a) of the Act.

[4]    In the absence of a stay of the order made by Justice Flick on 17 June 2020 referred to above, a decision on the visa application will have to be made by the first appellant without any ability to rely on the exercise of the discretion under s 501A(2)(a) of the Act, which forms part of the subject matter in this appeal. If that decision is to grant the visa, the appeal will be deprived of utility at least in so far as it seeks to have the orders made on 17 June set aside.

22    In her second affidavit made on 23 June 2020, Ms Watson deposed (relevantly):

[7]    I am instructed by my instructing officer that, absent any order made by the Court granting a stay on order 1 of the orders made by Justice Flick on 17 June 2020, a decision on the applicant’s visa application will be made in compliance with that order by 4 p.m. on 26 June 2020.

23    As is apparent, Ms Watson was deposing to a concern that, in the absence of a stay, a decision would have to be made on the application for the visa without regard to s 501A(2)(a).

24    On the hearing of the application for the stay, counsel for the Ministers submitted that they sought the stay in order to maintain the status quo pending the hearing and determination of the appeal. Counsel submitted that the appeal will become moot if the Minister for Home Affairs must make the decision before 12 noon on Friday, 3 July 2020.

25    Plainly, at the time that the application for the stay was filed, it could be said that the ground of appeal challenging the Judge’s reliance on the decision in BAL19 was reasonably arguable. That was confirmed subsequently by the judgment in KDSP and by the orders made in BFW20 and BGS20. However, the Judge’s variation of the orders made on 24 June 2020 gave effect to the decision in KDSP in this respect so that, to that extent, the Judge’s reliance on BAL19 is no longer an issue.

26    The Judge did refer to BAL19 as one of the multiple factors indicating that the delay in the decision-making process was unreasonable but it seems that, even if BAL19 is put to one side, the Judge may well have reached the same conclusion in any event. Nevertheless, I am willing to proceed on the basis that Ground 1 in the Notice of Appeal is reasonably arguable, although the Ministers’ prospects of success on that ground may not be strong.

27    More pertinently, I consider that Ground 2 which challenges the Judge’s conclusion that the Court had jurisdiction to make an order in the nature of mandamus requiring the Minister to reach a decision under s 65 of the Act, is reasonably arguable.

28    Nevertheless, I am not satisfied that the stay sought by the Ministers is appropriate. A number of matters support that conclusion.

29    This case is unlike many in which an appellant seeks a stay of an order pending the hearing and determination of the appeal. In the more common case, if the appeal succeeds, the appellant will not be required to carry out the impugned order at all. Its success will relieve it of that obligation. However, in this case, even if the Ministers succeed on the appeal, AFX17’s visa application will still have to be determined. Accordingly, the issue at the heart of the Ministers’ application is not about whether a decision must be made: it is instead about the time by which that must, or may, occur.

30    It would be very pertinent to the exercise of the discretion if it would not be practically possible for the Minister of Home Affairs to comply with the order by midday on 3 July 2020. However, there is no reason to suppose that that may be so. The Ministers have not made a claim to that effect, let alone put evidence supporting such a claim before the Court. Counsel for the Ministers did, however, refer to the fact that the notice served on AFX17 on 2 June 2020 indicated that any submissions to be made by him with respect to the exercise of s 501A(2) should be made within 28 days. That period will expire on 30 June 2020. This means that the Minister for Home Affairs may not be able to make a decision before that date. The time available to the Minister in which to make the decision before midday on 3 July 2020 may therefore depend on whether AFX17 (or his representative) leaves it until 30 June 2020 before lodging a submission. But, even if AFX17 does so, there will still be a period of two and a half days in which the Minister for Home Affairs may make the decision, so as to comply with the order as varied. Ms Watson’s evidence that all relevant criteria for the grant of the visa have been indicatively assessed as being satisfied, with the consequence that it is only the possible exercise of the discretion under s 501A(2) which is outstanding, is pertinent in this respect. So also is her evidence that, had that part of the order of 17 June 2020 precluding consideration of s 501A(2) not been set aside, a decision in compliance with the order of 17 June 2020 would be made by 4 pm on 26 June 2020. All these matters suggest that, in the event of refusal of a stay, it will not be impossible for the Minister to comply with the order of 17 June 2020 as amended. Nevertheless, I accept that the constraint of the time within which the Minister must make the decision is a material matter presently.

31    There was some mention in the submissions as to whether it would be open to the Minister for Home Affairs to exercise the liberty to apply to seek a further variation of the Judge’s order so as to extend the time for compliance. It is not necessary to express any view presently on that question.

32    The impact of the denial to AFX17 of the fruits of his success by the grant of a stay is an important consideration to be weighed against the constraint to which the Minister for Home Affairs will be subject if the stay is not granted. AFX17 has been in immigration detention continuously since 1 December 2016 which, on any view, is a very long time. Moreover, by reason of matters which do not need to be addressed in these reasons, he is now held in isolation. Accordingly, considerations concerning the liberty of the individual loom large in his circumstances. It is desirable in both the personal interest of AFX17 and in the general public interest in the liberty of the individual that AFX17 know the fate of his visa application very soon. Even if the decision be adverse to him, and he is not released from detention, knowledge of the fate of his application is likely to be of benefit to him.

33    If the stay is granted, AFX17 will have lost the benefit of his success at first instance. In my view, in the circumstances of this case, that is a particularly important consideration and outweighs the significance of the constraint to which the Minister for Home Affairs will be subject if the stay is not granted.

34    It is also pertinent that, if the stay is granted but the Minister for Home Affairs makes a decision on the visa application before the hearing and determination of the appeal (as may well be the case), the appeal is likely to become moot in any event.

35    The Ministers do not, understandably, seek a stay of the declaration made by the Judge on 10 June 2020 that they have failed to make a decision with respect to the respondent’s visa application within a reasonable time. I have said “understandably” because the Court does not have power to grant a stay of a declaratory order, although it may, in an appropriate case, stay the exercise of rights which have been declared to exist, pending an appeal: Arnhem Land Aboriginal Land Trust v Northern Territory [2007] FCAFC 31; (2007) 157 FCR 255 at [5]-[7].

36    A declaration is the form of relief traditionally granted against the Crown: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 372 (Mason J). As noted earlier, the expectation is that the Crown will act in accordance with the Court’s declaration. A declaration may of course be the subject of appeal. But in a case of the present kind which concerns the timing of a decision which affects the liberty of an individual, it is to be expected that the Ministers will, despite their pursuit of the appeal, respect the substance of the Court’s declaration.

37    Finally, I note again the material change in the circumstances since the application for the stay was filed. By reason of the orders of the primary Judge on 24 June 2020, the Minister for Home Affairs is no longer precluded from applying s 501A(2) in making the decision on AFX17’s visa application. That application can now be determined on its merits.

38    Although AFX17 has filed a Notice of Contention, it was not suggested that it was material to the application for the stay. It has accordingly been unnecessary to refer to it.

39    For these reasons, the application for the stay of Order 1 made on 17 June 2020 (as varied by Order 2 made on 24 June 2020) in NSD550/2020 is refused.

Associate:

Dated:    26 June 2020