FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 1354

ORDERS

THE COURT ORDERS THAT:

1.    The Amended Originating Application filed on 20 July 2020 is dismissed.

2.    There is no order as to costs.

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

REASONS FOR JUDGMENT

FLICK J:

1    The First Respondent in the present proceeding, identified by the pseudonym PDWL, is a national of Afghanistan.

2    In June 2016 he applied for a protection visa. On 9 December 2019, a delegate of the Minister refused that application and the First Respondent was notified on 18 December 2019. The delegate was not satisfied that PDWL passed the character test by reason of PDWL having been convicted in March 2018 of a criminal offence for which he was sentenced to a term of imprisonment exceeding one year. PDWL, the delegate concluded, fell within s 501(6)(a) of the Migration Act 1958 (Cth) (the “Migration Act”). The delegate proceeded to exercise the discretion and in doing so applied Ministerial Direction No. 79 – Visa refusal and cancellation under s 501.

3    In December 2019 PDWL sought review of the delegate’s decision before the Administrative Appeals Tribunal. In March 2020 the Tribunal set aside the delegate’s decision and substituted a decision that he be granted a protection visa: Re PDWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 485.

4    The Minister now seeks judicial review of the Tribunal decision in this Court. In very summary form, the Minister contends that:

    the Tribunal’s decision should be quashed because it had set aside the delegate’s decision by reference to BAL19 v Minister for Home Affairs [2019] FCA 2189, (2019) 168 ALD 276 (“BAL19”) – a decision which has since been held to be erroneous: KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (“KDSP”); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 [2020] FCAFC 121 (“BFW20”).

The Minister further contends that:

    the Tribunal erred in making a decision in substitution for that of the delegate and in granting PDWL a visa, the Tribunal in the Minister’s submission only had power to make a decision in substitution for that made under s 501(1) and not having such discretionary powers as would arise in respect to the grant or refusal of a visa under (for example) s 36 of the Migration Act.

5    It is concluded that the Minister has established jurisdictional error on the part of the Tribunal, but that relief should be refused in the exercise of the Court’s discretion. The continued detention of PDWL subsequent to the Tribunal decision, and the Minister’s conduct in respect to interlocutory applications made at the outset of the present proceeding, it is further concluded, dictate that the Minister should be denied the fruits of his success. PDWL, it is thus concluded, remains the holder of the protection visa granted to him by the Tribunal. There should be no order for costs.

BAL19

6    Intervening between the date of the delegate’s decision in December 2019 and the Tribunal’s decision in March 2020 was the decision of this Court in BAL19, handed down on 24 December 2019.

7    In BAL19 it had been concluded that s 36(1C) of the Migration Act precluded the Minister from using s 501(1) as a basis to refuse a protection visa. In so concluding Rares J reasoned (in part) as follows (at 299):

[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: …

(citation omitted).

That decision was subsequently followed in a number of single Judge decisions of this Court, it being concluded that the decision was not clearly wrong and should be followed: e.g., BFW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562 at [132] per Colvin J; AFX17 v Minister for Home Affairs [2020] FCA 807 at [27] per Flick J (“AFX17”).

8    In disagreeing with the conclusion reached in BAL19, on 23 June 2020 O’Callaghan and Steward JJ on the Full Court in KDSP summarised their reasoning as follows:

[301]    For the reasons given above, and with very great respect:

(a)    the references in the 2014 Explanatory Memorandum to the codification of Australia’s interpretation of its Convention “obligations” do not support the conclusion that the provisions in Sch. 5 of the 2014 Amending Act were intended to operate as an exclusive and exhaustive statement of the circumstances in which Australia would grant protection visas;

(b)    the presence of the overlap between the fields of operation of ss 36(1C) and 501 is of no moment. As described above, s 501 overlaps with other provisions. In that capacity, it operates as a further and cumulative requirement applicable with respect to all applicants seeking a visa under the Act; and

(c)    the presence of a discretionary power in s 501 that may be applicable to the grant of a protection visa does not result in a “substantial undermining of the protections afforded by the Convention”. For the reasons given above, it has always been an essential feature of Australia’s resolution of the “tension” between its right to control its borders and its international “obligations” under the Convention to impose requirements which are in addition to those set out in that Convention. Moreover, and in our view, Australia gave faithful effect to its interpretation of those Convention “obligations” by the amendments made in Sch. 5 of the 2014 Amending Act. However, those amendments subsist within an Act that includes additional requirements, such as the “character test” in s 501.

[302]    For the foregoing reasons, and with very profound respect, we cannot agree with the conclusion reached in BAL19 that s 501(1) cannot be applied to refuse the grant of a protection visa. It follows that the Minister had the power to refuse the protection visa here pursuant to s 501A of the Act. The second ground of appeal should be dismissed.

9    In a subsequent decision of the Full Court constituted by Allsop CJ, Kenny, Besanko, Mortimer and Moshinsky JJ on the following day in BFW20, their Honours summarised the main thrust of the arguments there presented as follows:

BFW20 and BGS20’s submission regarding exclusive operation

[148]    The main thrust of BFW20’s submissions (adopted by BGS20) was that the 2014 Amendment Act comprehensively codified the criteria for an application for a protection visa, including the subject matter of refusal on character grounds, indicating an intention that these provisions have an exclusive operation over that subject matter. The submission relied on the principle in Boilermakers that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course, bringing with it different statutory constraints. BFW20’s submissions also relied on Laughton at [19] … and Plaintiff S4 at [43] …

[149]    In our view, neither the purpose nor the effect of the 2014 Amendment Act was to create a comprehensive code as regards the grant or refusal of a protection visa, including the subject matter of refusal on character grounds. It is true that the protection visa criteria are detailed and include specific provisions relating to character. However, there is no express provision to the effect that the criteria represent an exhaustive statement regarding refusal of a protection visa on character grounds. And the 2014 amendments did not expressly alter the position as regards s 501. In the context of the pre-existing state of the law, if the Parliament had intended the statutory criteria for a protection visa to be exhaustive (and thus to alter the position as regards s 501), this is likely to have been made clear in the text of the amendments. Further, the extrinsic materials do not indicate an intention to alter the pre-existing position, namely that s 501 was capable of application in relation to protection visas.

[150]    For these reasons, we do not accept the proposition that the statutory criteria for a protection visa introduced by the 2014 Amendment Act were intended to be an exhaustive statement of the subject of refusal of a protection visa on character grounds. Accordingly, the principle in Boilermakers, and the description of that principle in Laughton and Plaintiff S4, have no application in the present case.

(citations omitted).

With reference to the decision in KDSP their Honours in BFW20 observed:

KDSP

[159]    The correctness or otherwise of BAL19 was also raised in another proceeding before a Full Court of this Court, heard shortly before the hearing in the present matter. On 23 June 2020, the Full Court that heard that matter published its reasons for judgment: KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108. All members of the Full Court (Bromberg, O’Callaghan and Steward JJ) concluded that the power in s 501(1) to refuse to grant a visa can apply to an application for a protection visa: at [104] per Bromberg J and [302] per O’Callaghan and Steward JJ. Although there are differences in emphasis, there is considerable overlap between the reasons delivered in that case (particularly those of O’Callaghan and Steward JJ at [278]-[298]) and the reasons set out above.

10    Faced with the decision in BAL19, and in advance of the decisions of the two Full Courts in KDSP and BFW20, the representative of PDWL and the Minister in the proceedings before the Tribunal “agreed … that this authority require[d] [the Tribunal] to set aside the … delegate’s decision…”: [2020] AATA 485 at [2]. The legal representative of the Minister, the Tribunal member recorded, “conceded properly that [the Tribunal was] bound to follow the decision in BAL19, although in her submission it was wrongly decided…”: [2020] AATA 485 at [13].

The Relief sought & the Grounds of review

11    The Originating application for review of a migration decision filed in this Court in March 2020, and in advance of either the decision in KDSP or BFW20, contended that the Tribunal had erred by purporting to grant PDWL a visa. Emboldened by the two decisions of the Full Court, an Amended Originating application filed by the Minister in July 2020 added an additional ground such that the grounds now sought to be relied upon are expressed as follows:

Grounds of application

1.    The AAT erred in holding that no power arose under section 501 of the Migration Act to refuse the first respondent a Safe Haven Enterprise (Class XE) visa (Visa), relying upon BAL19 v Minister for Home Affairs [2019] FCA 2189.

2.    In AAT proceedings 2019/8709,The AAT erred by purporting to grant the first respondent the Visa a Safe Haven Enterprise (Class XE) visa (Visa) when it had no jurisdiction power to do so.

Particulars

a.    The AAT’s jurisdiction had been invoked by an application by the first respondent under s 500(1)(b) of the Migration Act to review a decision by a delegate of the Minister that the applicant did not satisfy the “character test” in s 501 of the Migration Act and to thus refuse him the Visa under s 501(1).

b.    Section 500(1)(b) of the Migration Act only confers jurisdiction on the AAT “… for review of … decisions of a delegate of the Minister under section 501 (subject to subsection (4A))”.

c.    Accordingly, the scope of the AAT’s jurisdiction to review the delegate’s decision was confined to the decision which had been made under s 501(1) of the Migration Act.

d.    The Minister’s power to grant any visa is separate to s 501 and is contained in s 65 of the Migration Act and no decision had been made by the Minister (or his delegates) with respect to all the other matters required to be addressed in s 65.

12    The relief sought was identified in the Amended Originating Application as follows:

Details of relief sought

 1.    Certiorari issue to quash the decision of the second respondent (AAT) dated 11 March 2020.

 2.    Mandamus issue to the AAT (differently constituted) to hear and determine the first respondent’s application for review of a decision made by a delegate of the applicant (Minister) under section 501(1) of the Migration Act 1958 (Cth) (Migration Act) according to law.

 3.    Costs.

4.    Such further or other order as the Court deems fit.

13    These two Grounds, it will readily be appreciated, are closely interrelated. The greater the merit in the second Ground, that the power vested in the Tribunal was confined to making the correct or preferable decision pursuant to s 501 of the Migration Act, the greater the prospect of success of the first Ground, because any decision to be made under s 501 was a decision dictated by BAL19. The one thing which the Tribunal did not question was whether s 501 was of any relevance to resolving an application for a protection visa pursuant to s 36, such a construction of the Migration Act being precluded by BAL19. If Ground 2 were to prevail, the Tribunal – on the Minister’s approach – has done that which it ought not to have done (i.e., to exercise a discretion pursuant to s 36) and has not done that which it ought to have done (i.e., to exercise afresh the discretion conferred by s 501).

14    Ground 1, it is concluded, should prevail. Although unnecessary to resolve Ground 2, a tentative conclusion has been reached that that Ground also raises an argument not without some merit.

The absence of power – jurisdictional error on the part of the Tribunal

15    The first Ground of review is, self-evidently, directed to an error on the part of the Tribunal.

16    Irrespective of any argument as to whether the decision of the delegate was beyond power or otherwise invalid, the Tribunal unquestionably had jurisdiction to review the delegate’s decision: cf. Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 (“Brian Lawlor”); Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 at [41] to [44], (2005) 143 FCR 314 at 323-324 per Hely, Gyles and Allsop JJ.

17    The entirety of the reasoning of the Tribunal in respect to the first Ground of review is to be found in the following opening paragraphs of its reasons for decision, namely:

[1]    This is an application by PDWL seeking a review of a decision of the Respondent’s delegate notified to him on 18 December 2019. The Applicant had applied for a protection visa under section 36 of the Migration Act, 1958. A delegate of the Respondent (who exercised delegated authority under section 501 of the Migration Act only) decided to refuse the protection visa application because the Applicant failed what is known as the “character test” under that section and because the delegate believed the discretionary grant of a visa should not be made in the circumstances of the case.

[2]    Between the date of the delegate’s decision and the hearing in this Tribunal, the Federal Court’s decision in BAL19 v Minister for Home Affairs was handed down. It was agreed between the parties that this authority requires me to set aside the Respondent’s delegate’s decision for reasons I shall explain. The only question that was contested before me was the further order I should make under s 43(1)(c) of the Administrative Appeals Tribunal Act, 1975 (the AAT Act). The section gives me two options: first, I might remit the matter to the Respondent for further consideration with directions or recommendations, or I might substitute a new decision on the visa application. At the hearing before me, Mr Soo appeared for the Applicant; Ms Griffin, for the Respondent.

(footnotes omitted)

The “reasons” referred to in para [2] are the following (without alteration):

[11]    After the notification of the delegate’s decision to the Applicant, the Federal Court’s decision in BAL19 was delivered. So far as it is relevant to the application before me, the case decides that the Minster has no power under section 501 of the Migration Act to refuse a protection visa simply because the visa applicant fails the character test. Rather, section 36(1C), paragraph (b) should be taken to be an exclusive statement of the relevant disqualifying criterion in this regard. Paragraph (b) makes it clear that a person must be considered to be a danger to the Australian community (in addition to having been convicted of a particularly serious crime, as defined) before a protection visa may be refused him or her. Moreover, PIC 4001 was held to be invalid as an additional criterion for a protection visa because it was inconsistent with s 36(1C) of the Migration Act.

(footnotes omitted).

18    If attention is presently confined to the reasoning of the Tribunal in respect to the manner in which it should review the decision taken under s 501, the entirety of that reasoning is that the decision in BAL19, and the agreement between the parties, required the setting aside of the delegate’s decision.

19    Given the decisions of the Full Courts in KDSP and BFW20, there can equally be no doubt that the reasoning in BAL19 and the construction of the Migration Act there embraced, has been held to be erroneous. At the time the Tribunal made its decision, however, the decision in BAL19 represented the then state of the law and both the Minister (and his delegates) and the Tribunal were bound to follow that decision: cf. AFX17 [2020] FCA 807 at [28] per Flick J. Although the Tribunal was thus required to follow the decision in BAL19, the effect of the decisions of the Full Court in KDSP and BFW20 was that the 2014 amendments to the Migration Act (and in particular s 36(1C)) were “to be regarded as having the construction found by the [Full Courts] from the time [they were] first enacted, because that construction does not operate only with prospective effect”: cf. Minister for Industrial Relations (Vic) v Esso Australia Pty Ltd [2019] FCAFC 26 at [45], (2019) 268 FCR 520 at 532 per White, Lee and Wheelahan JJ (“Minister for Industrial Relations v Esso Australia”).

20    But all of this, with respect, can potentially be placed to one side.

21    If attention remains confined to the review of the delegate’s decision made pursuant to s 501, and assuming for present purposes that Ground 2 prevails such that it was s 501 which “marked the boundaries” of the Tribunal’s powers, the Tribunal simply failed to give any consideration to the manner in which the discretion conferred by s 501(1) was to be exercised. Rather than directing any attention to the exercise of that discretion, it directed its attention to the manner in which the powers conferred by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“Administrative Appeals Tribunal Act”) should be exercised. Expressed differently, it failed to exercise the jurisdiction entrusted to it by s 500(1)(b) of the Migration Act.

22    Irrespective of the merits of Ground 2, however, it is concluded that the Tribunal erred. Following the decisions in KDSP and BFW20, s 501(1) was an available source of power to refuse to grant a protection visa. By simply acting upon the agreement between the parties, the Tribunal thus acted upon an erroneous view of the law – as it is now settled by the decisions of the Full Court – and failed to give any consideration to whether the visa ultimately granted to PDWL should be refused pursuant to s 501(1).

23    The question remains as to whether that error was jurisdictional or merely an error within jurisdiction.

24    It may be noted at the outset that that question is not resolved by reference to the decision of the Full Court in Minister for Industrial Relations v Esso Australia. That decision did not proceed upon the basis that there was any jurisdictional error committed by the Fair Work Commission in applying a decision of a Full Court of this Court, a decision which was subsequently overruled by the High Court. The decision of the Full Bench of the Fair Work Commission, it may further be noted, resolved the application “by reference to discretionary considerations other than whether the Order is affected by jurisdictional error”: Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union [2018] FWCFB 2018 at [59] to [60], (2018) 281 IR 147 at 169 (“Esso Australia v AMWU”). The decision in Minister for Industrial Relations v Esso Australia, moreover, was founded upon the provisions of the Fair Work Act 2009 (Cth).

25    Whether the error of the Tribunal in the present case constitutes jurisdictional error is to be resolved by reference to both principles of general application and, more specifically, the terms of the Migration Act.

26    As a matter of general principle, the Tribunal not proceeding by reference to “a correct understanding of the law” may constitute jurisdictional error: cf. Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4, (2018) 264 CLR 1 at 29-30 (“Probuild”). After reviewing the authorities, Gageler J there summarised the prevailing position as follows:

[73]    In the meantime, in Craig v South Australia [(1995) 184 CLR 163], in the course of examining the contemporary scope of certiorari at common law for error of law on the part of an inferior court of record, Brennan, Deane, Toohey, Gaudron and McHugh JJ drew a critical distinction between a statutory conferral of decision-making authority on a court and a statutory conferral of decision-making authority on a person or body other than a court. The distinction then drawn was that “the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine” whereas “[a]t least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law”.

…

[75]    The common law presumption of statutory interpretation that has come to be adopted in Australia can therefore be stated as being that a statutory conferral of decision-making authority on a person or body other than a court is conditioned by an implied statutory requirement that the person or body can validly exercise that authority only on a correct understanding of the law applicable to the decision to be made. The presumption is similar in concept and in operation to the common law presumptions of statutory interpretation which support statutory implication of conditions of reasonableness and procedural fairness.

[76]    Absent “exclusion by plain words of necessary intendment”, the repository of a statutorily conferred decision-making authority “must proceed by reference to correct legal principles, correctly applied”. To proceed otherwise is for the repository to proceed in contravention of a limitation on the decision-making authority impliedly imposed by the legislature – to commit a jurisdictional error.

(citations omitted).

27    More specifically, and within the context of the Migration Act, the observations of Gageler J in Probuild have been applied in the statutory context of the Migration Act: e.g., PQSM v Minister for Home Affairs [2020] FCAFC 125 at [21]-[22] per Mortimer, Banks-Smith and Jackson JJ; Huynh v Federal Circuit Court of Australia [2019] FCA 891 at [28], (2019) 166 ALD 228 at 234 per Colvin J. Expressed differently, in Hossain v Minister for Immigration and Border Protection [2018] HCA 34, (2018) 264 CLR 123 (“Hossain”), Kiefel CJ, Gageler and Keane JJ also addressed the concept of jurisdictional error in the context of the Migration Act. Their Honours there expressed the concept (in part) as follows (at 134 to 135):

[28]    The common law principles which inform the construction of statutes conferring decision-making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary. Those common law principles are not derived by logic alone and cannot be treated as abstractions disconnected from the subject matter to which they are to be applied. They are not so delicate or refined in their operation that sight is lost of the fact that “[d]ecison-making is a function of the real world”.

[29]    That a decision-maker “must proceed by reference to correct legal principles, correctly applied” is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

[30]    Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.

(footnotes omitted)

28    Both of the decisions in ProBuild and Hossain referred (in part) to statutory provisions which required “conditions” as to the exercise of a statutory power to be satisfied. Assuming for present purposes that Ground 2 does not prevail, any consideration of the discretion conferred by s 501 is not expressly stated to be either a condition as to the exercise by the Tribunal of its powers of review or a limitation upon the Tribunal’s powers more generally expressed.

29    It is nevertheless concluded that a correct understanding by the Tribunal of the ambit of the matters that could be taken into account when exercising the discretion to grant or refuse a protection visa, including the discretionary power conferred by s 501(1), went to the jurisdiction being exercised. In failing to give consideration to s 501(1), the Tribunal both:

    failed to approach the exercise of the discretion to grant a visa upon the basis that s 501 was a basis upon which a visa could be refused; and

    only partially exercised the jurisdiction entrusted to it.

A complete discharge by the Tribunal of the jurisdiction being exercised required it to address the manner of exercise of the discretion there conferred. An exercise of the discretion, be it legally or factually right or wrong, would be an error within jurisdiction; but a failure to address the discretion at all is for the Tribunal to embark upon the exercise of its jurisdiction but to fail to complete that task.

30    On the facts of the present case, review by the Tribunal was sought of the delegate’s decision. By reason of the agreement between the parties that the decision in BAL19 required the Tribunal to set aside the delegate’s decision, a question never considered by the Tribunal – and a matter to which it never directed its attention – was whether the setting aside of the delegate’s decision was the “correct or preferable” decision in respect to s 501: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J. The Tribunal only considered the question as to whether the matter should be remitted to the Respondent for further consideration or whether it should “substitute a new decision on the visa application”: [2020] AATA 485 at [2]. And that question was resolved by reference to (inter alia) whether PDWL “has satisfied the valid criteria specified under the Regulations” and whether “the Applicant has signed a values statement (PIC 4019), has passed a health examination (cl 790.222 and 790.223), and has received a security clearance (PIC 4019)”: [2020] AATA 485 at [28]. In so proceeding, the Tribunal failed to consider the merits of the delegate’s decision as to whether by reason of the fact that PDWL had failed to satisfy the “character test” set forth in s 501(6) of the Migration Act, PDWL should be refused a visa pursuant to the discretion conferred by s 501(1).

31    This failure to consider a matter as fundamental to the administration of the Migration Act in the present context as to whether the discretion conferred by s 501(1) should be exercised in any particular manner is, with respect, jurisdictional. A matter so fundamental to a proper discharge of the jurisdiction entrusted to the Tribunal when considering the grant or refusal of a protection visa is, if necessary, to be construed as an “implied condition” (Hossain at [29]). Even if it is suspected that the Tribunal may well have reached a conclusion favourable to PDWL, the failure to consider that matter constituted jurisdictional error. Presumably the Tribunal, given its ultimate decision, would have exercised the discretion conferred by s 501(1) in a manner favourable to PDWL. But it never directed its mind to the exercise of this discretion. Implicit in the Tribunal’s decision, but a matter never expressly addressed, is the conclusion that the discretion conferred by s 501(1) should not be exercised so as to “refuse to grant a visa” to PDWL, thereafter leaving it open to the Tribunal to consider what decision should in fact be made. It was this latter task the Tribunal exclusively pursued. The failure to consider s 501(1) nevertheless remained a matter “material” to the decision to be made (Hossain at [30]).

32    Irrespective of this approach to the decision-making task, in exercising the discretion as to what the “correct or preferable decision” should be, the Tribunal fell into further jurisdictional error in approaching that exercise of discretion on the erroneous reasoning in BAL19.

33    Ground 1 of the Amended Originating Application is thus made out.

A confined power – s 501 of the Migration Act

34    Given the conclusion that Ground 1 of the Amended Originating Application has been upheld, it is unnecessary to resolve the second Ground of Review.

35    Subject to this necessary reservation, it may nevertheless be observed that the second Ground is also not without some merit.

36    Although unnecessary to resolve the competing arguments in respect to this Ground, each should be set forth in very summary form to determine whether those arguments expose anything which may be of relevance to either the manner in which the first Ground is to be resolved, or the manner in which the discretion to refuse relief should be exercised.

37    The delegate’s decision made in December 2019 took the following form:

CHARACTER CONSIDERATION UNDER S501(1) OF THE MIGRATION ACT 1958 – DECISION BY THE DELEGATE OF A MINISTER ADMINISTERING THE MIGRATION ACT 1958

…

3.    [The Applicant] has not satisfied me that he passes the character test. I have decided to exercise my discretion under subsection 501(1) of the Act to refuse his application for a visa. I hereby refuse his application for a Safe Haven Enterprise (Class XE) visa. My reasons for this decision are set out in the attached Statement of Reasons.

The form was in the standard format, with paras 1 and 2 providing for the making of potentially different decisions. It was obviously the decision provided for in para 3 which commended itself to the delegate. The Statement of Reasons provided by the delegate for his decision canvassed those matters set forth in Direction No. 79 – Visa refusal and cancellation under s 501, including the “Nature and seriousness of the person’s conduct” and the “Risk to the Australian community”. The Statement of Reasons concluded:

Conclusion

40.    I considered all relevant matters including (1) an assessment against the character test as defined by subsection 501(6) of the Act, (2) the Direction and (3) all other available evidence, including evidence provided by, or on behalf of [the Applicant].

41.    I concluded that [the Applicant] represents a risk of harm to the Australian community which is unacceptable. I could not be satisfied that the likelihood of [the Applicant] reoffending was negligible. I found that there are no sufficient countervailing considerations in this case to warrant the Australian community accepting any level of risk.

42.    Having given full consideration to all of these matters, I decided to exercise my discretion to refuse to grant [the Applicant’s] application for a Safe Haven Enterprise (Class XE) visa, under subsection 501(1).

And the form of Application for Review of Decision filed on behalf of PDWL with the Tribunal in December 2019 identified the decision sought to be reviewed as follows:

What type of decision do you want reviewed?

Immigration

Is the decision you want reviewed:

•    a decision to refuse to grant, or to cancel, a visa under section 501 of the Migration Act 1958, or

•    a decision to not revoke a mandatory visa cancellation under section 501CA of the Migration Act 1958?

Yes

Is the visa applicant or the former visa holder currently in Australia?

Yes

38    The form of Application for Review also set forth (albeit in part) the following:

Reasons for the application

You must tell us briefly why you want to have the decision reviewed. For example, you may think the decision was wrong and a different decision should be made, or the information you provided was not taken into account, or the law was not applied correctly.

We cannot start the review if you do not answer this question.

Why do you claim the decision was wrong?

We believe the delegate could have exercised his/her discretion to not refuse the visa application under s501, in particular due to his good behaviour while in prison and in immigration detention. It should be relevant to assess his behaviour while in detention, which was not explored by the delegate. These immigration records would have been available to the delegate but there was not been any mention in the decision record, suggesting that they weren’t considered. Any reports by Serco or by DOHA case managers (or a lack of adverse findings) should be taken into consideration.

Those Reasons continued on to state that the “delegate found that there is an ongoing risk that the applicant will reoffend, which is in contrast to the s 36(1C) delegate…”. The balance of the Reasons further addressed the offence for which PDWL was convicted, the sentencing remarks, and the like.

39    In very summary form, the Minister sought to characterise the decision sought to be reviewed by PDWL as a decision under s 501(1); Senior Counsel for PDWL sought to characterise the decision more broadly, namely as a decision to refuse to grant a visa.

40    The delegate’s decision, it will be noted, was a decision expressly stated to have been made under s 501, the Form of Application for Review and both the identification of the decision sought to be reviewed and the Reasons for the review application were all confined to issues arising under s 501.

41    If attention is shifted to the terms of s 501(1), that provision is expressed as follows:

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.

That subsection, it may be noted, confers a discretion to refuse to grant a visa if the Minister is not satisfied that the person passes the character test. The “character test” is defined in s 501(6). Review of decisions under s 501 are permitted by s 500(1)(b) which provides as follows:

500    Review of decisions

(1)    Applications may be made to the Administrative Appeals Tribunal for review of:

…

(b)    decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or

…

Section 501(4A) identifies those decisions which are not reviewable.

42    The correct characterisation of the decision under review assumed significance, so both Senior Counsel submitted, because it played a large part in defining the ambit of the powers of the Tribunal when undertaking its review functions.

43    If the characterisation of the decision under review by the Minister be correct, there is considerable force in the argument that upon an application for review, the only decision which could be made in substitution for that of the delegate was a decision that could be made under s 501. Such an approach to the confined nature of the power vested in the Tribunal by s 501 would sit comfortably with the structure of the Migration Act, which provides for separate means of review in respect to separate kinds of decisions.

44    If the character of the decision under review advanced on behalf of PDWL be correct, the Tribunal would have power to make all such decisions as an original decision-maker could make when entertaining an application for a visa.

45    Although unnecessary to reach a final conclusion, a tentative view is expressed that the argument of the Minister would most likely prevail.

46    The jurisdiction which is vested in the Tribunal by s 500(1)(b) of the Migration Act is the jurisdiction to review “decisions … under section 501”. It is that provision which “marks the boundaries of the AAT review”: cf. Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, (2019) 266 CLR 250 at 271. Bell, Gageler, Gordon and Edelman JJ there concluded:

[51]    … The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.

(footnote omitted).

See also: [2019] HCA 16 at [14] to [15], (2019) 266 CLR at 256-258 per Kiefel CJ, Keane and Nettle JJ.

47    When exercising the jurisdiction conferred by s 500(1)(b) the Tribunal was thus clothed with all of the powers and discretions of the delegate as the original decision-maker, being powers confined by s 501(1). No decision was made by the delegate and no decision was sought to be reviewed by PDWL of any decision made (for example) pursuant to s 65 of the Migration Act.

48    If this be correct, the Tribunal would have erred in concluding that “the Tribunal’s jurisdiction extends in this case to a decision that the protection visa be granted provided that it is taken for the purpose of reviewing the decision under review”: [2020] AATA 485 at [24]. In reaching this conclusion, the Tribunal considered it “important to bear in mind that what was refused under s 501 was an application for a specific visa”. The difficulty with this conclusion is that it focusses upon what was sought by PDWL rather than the decision under review. That decision, as the Minister contends, cannot be characterised as anything other than a decision made under s 501; it is not a decision (for example) refusing a visa pursuant to s 65. Separate provision for Tribunal review of such decisions, it may be noted, is provided for in Pts 5 and 7 of the Migration Act.

49    Separate from any reliance placed upon the statutory source of the authority to make the decision being found in s 501 and the identification of such a decision as the decision for which Tribunal review is sought, it would be a curious construction of the Act if the constraints upon the exercise of the review function found in both Pts 5 and 7 could be by-passed by seeking review under s 500; ss 500 and 501 being found within Pt 9.

50    Assuming that the Minister’s argument has some merit, and further assuming that it could prevail, it would follow that the Tribunal had no power to order the grant of a visa to PDWL. The only power that could be exercised by the Tribunal, given the statutory definition of the “character test” (s 501(6)), was the exercise of the discretion conferred by s 501(1) to “refuse to grant a visa…”.

51    The second Ground of review, making these assumptions, could provide a yet further reason to quash the decision of the Tribunal, as a decision made in excess of power or possibly in excess of jurisdiction.

52    It remains, however, unnecessary to express any concluded view as to the merits of the Minister’s argument in respect to the second Ground.

Discretion

53    The present application brought by the Minister seeks (inter alia) an order in the nature of certiorari quashing the decision of the Tribunal.

54    Such relief is discretionary: cf. Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 at [21], [80], [95]-[113], [224], [260], (2002) 209 CLR 372 at 394 per Gleeson CJ, at 410 per Gaudron and Gummow JJ, at 415-423 per McHugh J, at 454 per Kirby J and at 465-466 per Hayne J (Callinan J agreeing).

55    It is sufficient, for present purposes, to set forth the following summary of some of the principles of relevance to the exercise of discretion as provided by Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400:

For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld. …

These observations have since been repeatedly applied: e.g., Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [56], (2000) 204 CLR 82 at 108 per Gaudron and Gummow JJ; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [28], (2007) 235 ALR 609 at 618 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. See also: SZQBN v Minister for Immigration and Citizenship [2013] FCAFC 94 at [39] to [44], (2013) 213 FCR 297 at 303 per Jacobson, Edmonds and Logan JJ.

56    The factual basis upon which Senior Counsel for PDWL relied in submitting that relief should be refused centred upon the prior conduct of the Minister in the present proceeding. It was on 11 March 2020 that the Tribunal set aside the delegate’s decision and in substitution ordered that PDWL be granted a safe haven enterprise visa. That decision operated forthwith: Administrative Appeals Tribunal Act, s 43(5A). Thereafter, “the rights and liabilities of [PDWL were]… as specified in that decision”: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [46], (2009) 209 CLR 597 at 613 per Gaudron and Gummow JJ (“Bhardwaj”). Notwithstanding the grant of that visa, PDWL remained in detention. Perhaps some explanation for that may be provided by the Minister filing, on 11 March 2020, the Originating Application in the present proceeding. On the following day the Minister applied to the duty Judge for an expedited hearing. That application came before Perry J. Her Honour did not order expedition but made the following orders:

1.    On or before 5pm on Monday 16 March 2020 the applicant is to file and serve an affidavit by an appropriate officer from the applicant’s Department explaining whether the first respondent is still in immigration detention and, if so, an officer with actual knowledge should also explain why he is still in immigration detention.

2.    The matter be listed for a case management hearing at 9am on Tuesday 17 March 2020.

(emphasis in original)

57    PDWL remained in detention. An interlocutory application was then filed by PDWL on 16 March 2020. That application came before Wigney J on 17 March 2020 and his Honour published ex tempore reasons on that day in support of an order that PDWL “be released from detention forthwith”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394. His Honour made the following finding as to the Minister’s reason for keeping PDWL in detention:

[31]    The basis upon which PDWL was kept in immigration detention was never properly explained by the Minister. It ultimately became readily apparent, however, that PDWL was not released from immigration detention simply because the Minister did not like the Tribunal’s decision.

58    His Honour then proceeded to set out the orders made by Perry J and continued as follows:

[36]    Two matters should be noted at this point.

[37]    First, PDWL remained in immigration detention on 12 March 2020. It is abundantly clear that Perry J wanted to know why that was so.

[38]    Second, an affidavit sworn by the Minister’s solicitor which accompanied the Minister’s application included the following statement about PDWL’s detention (at paragraph 8.1):

The effect of the AAT’s decision is that the First Respondent [PDWL] has been granted the Visa and he is in the process of being released from Yongah Hill Immigration Detention Centre in Western Australia at the time this affidavit is being affirmed.

[39]    The clear impression conveyed by that statement was that the Minister appreciated that, as a result of the Tribunal’s decision, it was necessary to release PDWL from immigration detention and that his release was being attended to. It would appear, however, that that was either a false impression, or that the Minister changed his mind at some stage after the affidavit was sworn, or perhaps, at the risk of sounding flippant or facetious, the process of releasing PDWL from immigration detention was taking an inexplicably long time. That is because PDWL was still in immigration detention when the matter next came before the Court five days later on 17 March 2020.

59    His Honour then referred as follows to the steps taken on 16 March 2020:

[42]    Late on the afternoon of 16 March 2020, the Minister filed an affidavit in purported compliance with the order made by Perry J. That affidavit was sworn by Ms Marian Otigwoheh Agbinya, who said that she was a solicitor currently employed as the Acting Assistant Secretary of the Migration and Citizenship Litigation Branch in the Legal Division, Corporate and Enabling Group of the Department of Home Affairs.

[43]    At paragraph 6 of her affidavit, Ms Agbinya stated as follows:

As at the time of swearing this affidavit, I am informed and verily believe that the First Respondent [PDWL] is detained at the Yongah Hill Immigration Detention Centre in Western Australia.

[44]    Somewhat remarkably, given the clear terms of Perry J’s order, Ms Agbinya went on to depose, at paragraph 9 of her affidavit, as follows:

I confirm that I have actual knowledge of why the First Respondent [PDWL] remains in immigration detention. However, to provide an explanation of the reason why the First Respondent remains in immigration detention would reveal legal advice that is subject to legal professional privilege.

[45]    It is difficult, if not almost impossible, to imagine how the Minister, or anyone else, could have sensibly formed the view that this affidavit complied with Perry J’s order. It provided no explanation whatsoever for why PDWL remained in immigration detention. More will be said about that in due course.

(emphasis in original).

60    His Honour ultimately observed:

[57]    The conduct of the Minister in this case, on just about any view, has been disgraceful. Putting aside the fact that PDWL remains in detention, despite having been granted a visa on 11 March 2020, that is, six days prior to the hearing of these applications, the Minister appears to have willingly and flagrantly failed to comply with the orders made by Perry J on 12 March 2020. That order required the Minister to file an affidavit by an appropriate officer in his Department with actual knowledge of why PDWL was still in immigration detention. The affidavit filed in purported compliance with that order contained no such explanation. Rather, it sought to conceal any explanation behind the cloak of legal professional privilege.

[58]    Putting aside the Minister’s undoubted ability to waive any privilege if he wished to do so, I have little doubt that an explanation could have been given for the continuing detention of PDWL which did not involve the disclosure of any privileged information. The reasons for the continuing detention could have been explained by an officer who was not a solicitor and the explanation could undoubtedly have been given without exposing any legal advice that may have supported that explanation. It may perhaps be inferred that the only explanation that the Minister had for the continuing detention of PDWL was that he, or someone in his Department, thought that the Tribunal’s decision was wrong. It would appear, however, that either no officer in the Minister’s Department was prepared to depose to that fact, or the Minister was simply prepared to ignore the clear terms of Perry J’s order.

[59]    The Minister’s failure to comply with the order made by Perry J on 12 March 2020 provides another reason to refuse his application for expedition.

After his Honour’s orders made 17 March 2020, PDWL was ultimately released from detention. A failure to file an affidavit fully and frankly setting forth the factual basis for a decision-making process can found an inference that there is no good reason for the conduct pursued, as was in fact part of the reasoning in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [130], (2017) 252 FCR 352 at 383 per Griffiths, White and Bromwich JJ. The failure in the present case to file an affidavit which in fact complied with the order previously made by Perry J only provides further reason to question the integrity of the Minister’s conduct.

61    Clearly enough, at least two matters assumed importance to the reasoning of Wigney J, namely:

    the fact that PDWL had not been released from detention simply because, as his Honour so found, “the Minister did not like the Tribunal’s decision”; and

    the failure on the part of the Minister to file any affidavit complying with the order made by Perry J to explain “why he is still in immigration detention”.

The persistence in submissions now made to this Court as to the failure to explain only invites further concern as to the lack of integrity in the decision-making processes of the Minister. The submission now made on the Minister’s behalf is that it is “thus not apparent how the affidavit could say more than it did, without disclosing the tenor of legal advice and risking a waiver of privilege in that advice”. That submission is rejected and for the same reasons as were provided by Wigney J. The filing of an Originating Application seeking review of the Tribunal’s decision did not operate as a stay of the decision that the delegate’s decision be set aside and the decision that PDWL “be granted a safe haven enterprise visa”: [2020] AATA 485 at [36]. In the absence of an order deferring the coming into effect of that decision or an order otherwise staying that decision, it was a decision that required compliance. The only advice that could potentially have founded a basis for the non-compliance with that decision by the Minister, was advice that the Minister need not comply with that decision by reason of (inter alia) it being a decision made in excess of jurisdiction. Whether any such advice that a Minister need not comply could even arguably attract legal professional privilege could well be doubted. But all possibilities remain speculation. The fact is that the Minister did not explain why PDWL was still in immigration detention and did not comply with Order 1 as made by Perry J on 12 March 2020. Even as at the date of hearing before the Court as presently constituted, no real explanation has been provided. Rejected is the submission now made that non-compliance with Order 1 “should not be regarded as wilful defiance or disregard of the order”.

62    Such conduct, it is respectfully concluded, warrants an exercise of discretion to refuse the Applicant Minister an order quashing the Tribunal decision. At the heart of the decision-making tasks being undertaken by the delegate, the Minister and the Tribunal were questions going to the ability of PDWL to remain lawfully in this Country and to avoid persecution, and questions going to his very liberty. Such matters were peremptorily placed to one side by the Minister simply because of a personal dislike of the Tribunal decision and an unwillingness to explain his conduct, even when ordered to do so.

63    Also of relevance to the exercise of the discretion is the absence of any application made by the Minister to the Tribunal to defer the “coming into effect” of its decision. Even assuming, as the Minister in the present proceeding submitted, there was no power in the Tribunal to grant a stay of its decision, left unexplained by the Minister was why an order was not sought from the Tribunal pursuant to s 43(5B) of the Administrative Appeals Tribunal Act that its decision was “not to come into operation” for a period of 28 days to allow an application to be made to this Court. Given the agreement between the parties before the Tribunal that BAL19 “require[d] [the Tribunal] to set aside the [Minister’s] delegate’s decision” ([2020] AATA 485 at [2]), the prospect of the Tribunal making an order of the kind that it did could not have been overlooked. Had the Minister wished to pursue a course of challenging the Tribunal’s reliance upon the legal consequences of the 2014 legislative amendments to the Migration Act as set forth in BAL19, and given his position that there was no power on the part of the Tribunal to grant a stay of any decision, the absence of an application to defer the coming into operation of an adverse Tribunal decision left the Minister in the position that he had no option but to comply with the decision.

64    The decision of the Tribunal thus remains intact. And this is so notwithstanding:

    the conclusion that the Tribunal fell into jurisdictional error in applying the construction of (inter alia) s 36(1C) and s 501 of the Migration Act as set forth in BAL19; and

    the merit of an argument that the Tribunal had no power (or perhaps even jurisdiction) to grant the relief that it did.

Until set aside by an order of this Court, the decision of the Tribunal resolved any question as to his entitlement to the visa granted by the Tribunal. The function of an order in the nature of certiorari, it has been said, “is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights”: Probuild [2018] HCA at [28], (2018) 264 CLR at 13 per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ. See also: DMI16 v federal Circuit Court of Australia [2018] FCAFC 95 at [38], (2018) 264 FCR 454 at 464 per Collier, Logan and Perry JJ.

65    Jurisdictional error on the part of an administrative decision-maker, it may be accepted, may lead to a decision having no legal consequences: cf. Bhardwaj [2002] HCA 11, (2009) 209 CLR 597. But there is “no universal proposition that jurisdictional error” necessarily has that effect: Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 at [42], (2003) 145 FCR 1 at 16 per Gray and Downes JJ. Just as a “purported” decision on the part of a delegate remained a “decision” susceptible of review by the Tribunal (cf. Brian Lawlor), a “purported” decision of the Tribunal or a decision of the Tribunal made in excess of the power conferred upon it, remained a “decision” of the Tribunal susceptible to judicial review by this Court: cf. Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [37] to [40], (2003) 131 FCR 28 at 39 to 41 per Gray ACJ and North J.

66    There is, moreover, nothing in the Migration Act which could be relied upon as providing a basis for an inference that Tribunal decisions can be ignored by the Minister and stripped of any legal effect if the Minister believes that such decisions are either factually or legally erroneous, or even if the Minister believes that such decisions have been made in excess of jurisdiction or power. The availability of judicial review of Tribunal decisions by this Court or the High Court for jurisdictional error strongly denies the availability of any such inference.

67    Any concern that such a result may not be in the public interest, it is further concluded, is satisfactorily answered by:

    the fact that Wigney J has previously concluded that a writ in the nature of habeas corpus was appropriate to be granted; and

    the finding of fact made by the Tribunal “that there are in fact no outstanding issues to be addressed by the Respondent” ([2020] AATA 485 at [28]).

68    A party to a proceeding in this Court, be it a Minister of the Crown or otherwise, cannot fail to comply with findings and orders made by the Tribunal or this Court simply because he “does not like” them. Decisions and orders or directions of the Tribunal or a court, made in accordance with law, are to be complied with. The Minister cannot unilaterally place himself above the law.

69    Notwithstanding the conclusion that Ground 1 of the Amended Originating Application has been upheld and although unnecessary to decide, the conclusion that Ground 2 has some merit, relief is refused in the exercise of the Court’s discretion.

70    The consequence of the Tribunal decision, and the refusal of discretionary relief to set aside the Tribunal’s decision, is that PDWL has now been granted a visa. The refusal of relief in the form of quashing the Tribunal decision leaves PDWL as the holder of that visa.

CONCLUSIONS

71    Ground 1 of the Amended Originating Application has been upheld. Notwithstanding the agreement between the parties to the Tribunal proceeding, the Tribunal erred in acting upon the agreement between the parties that the decision in BAL19 required it “to set aside the … delegate’s decision” and that “[the] only question” to be resolved was the form of the “further order” to be made under s 43(1)(c) of the Administrative Appeals Tribunal Act.

72    Although the Tribunal quite properly acted upon the agreement of the parties that it was bound by BAL19, the fact remains that the Tribunal failed to give any consideration to a matter of fundamental importance to a decision as to whether to grant or refuse a protection visa – namely, the discretion conferred by s 501(1). In failing to do so, the Tribunal committed jurisdictional error.

73    The second Ground of review, it has tentatively been concluded has some merit.

74    Even if both Grounds of review were made out, however, relief should be refused in the exercise of the Court’s discretion. The Minister cannot place himself above the law and, at the same time, necessarily expect that this Court will grant discretionary relief. The Minister has acted unlawfully. His actions have unlawfully deprived a person of his liberty. His conduct exposes him to both civil and potentially criminal sanctions, not limited to a proceeding for contempt. In the absence of explanation, the Minister has engaged in conduct which can only be described as criminal. He has intentionally and without lawful authority been responsible for depriving a person of his liberty. Whether or not further proceedings are to be instituted is not a matter of present concern. The duty Judge in the present proceeding was quite correct to describe the Minister’s conduct as “disgraceful”. Such conduct by this particular Minister is, regrettably, not unprecedented: AFX17 v Minister for Home Affairs (No 4) [2020] FCA 926 at [8] to [9] per Flick J. Any deference to decisions made by Ministers by reason of their accountability to Parliament and ultimately the electorate assumes but little relevance in the present case. Ministerial “responsibility”, with respect, cannot embrace unlawful conduct intentionally engaged in by a Minister who seeks to place himself above the law. Although unlawful conduct on the part of a litigant does not necessarily dictate the refusal of relief, on the facts of the present case the Minister’s conduct warrants the refusal of relief.

75    It is finally concluded that there should be no order for costs. Although PDWL has succeeded in retaining the visa granted to him, that result follows not from the lack of success on the part of the Minister in establishing jurisdictional error but rather from the discretionary refusal of relief.

THE ORDERS OF THE COURT ARE:

1.    The Amended Originating Application filed on 20 July 2020 is dismissed.

2.    There is no order as to costs.

Associate:    

Dated:    23 September 2020