Federal Court of Australia

BET20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1539

ORDERS

THE COURT ORDERS THAT:

1.    The adjournment of the determination of the interlocutory application dated 7 August 2020 and the interlocutory application dated 23 September 2020 is refused.

2.    The interlocutory application dated 7 August 2020 is dismissed.

3.    The interlocutory application of 23 September 2020 is dismissed.

4.    The originating application filed on 18 March 2020 is dismissed.

5.    The applicant is to pay the respondent’s costs, including the costs of the case management hearing on 23 July 2020.

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

REASONS FOR JUDGMENT

ABRAHAM J

1    The applicant is a 32-year-old male citizen of Fiji who first arrived in Australia on 1 October 2010 and has left Australia on three occasions, with his most recent arrival date being 14 March 2018. The applicant held a Class BS Subclass 801 (Partner) visa. On 19 September 2018 the visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that the applicant had a substantial criminal record and was serving a sentence of full time imprisonment: s 501(7)(c) of the Migration Act. This is an application for judicial review of a decision made by the second respondent (the Tribunal) on 12 February 2020 to affirm a decision of a delegate of the first respondent (the Minister) not to revoke that cancellation of the applicant’s visa under s 501CA(4) of the Migration Act. The applicant also seeks, by way of two interlocutory applications, leave to amend the grounds of review.

2    The applicant was originally unrepresented in this Court and filed an application for review of a migration decision containing one ground. On or about 30 June 2020, approximately 4 weeks before the original hearing date on 27 July 2020, the applicant retained counsel. Since that time two further amended applications for review have sought to be relied on by the applicant, and the hearing date has been adjourned on two occasions at the applicant’s request. On 14 August 2020, the second hearing date on 18 August 2020 was vacated at the applicant’s request and the matter was relisted for hearing on 23 September 2020. The 23 September 2020 hearing date was to determine both the application for leave to amend the grounds of review in the terms set out in a document dated 7 August 2020, and the ground set out in the original notice if it was still relied on. At the commencement of the hearing on 23 September 2020, and without notice to the Court, the applicant made a further application to amend the notice of review and an application to adjourn the hearing of the application for leave in relation to both the fresh application dated 23 September 2020 and the 7 August 2020 application to enable it to be further amended thereafter.

3    The hearing proceeded with the submissions directed, inter alia, to questions of the adjournment application, whether leave ought to be granted to further amend the application in the terms set out in the 23 September 2020 application, and whether leave should be granted on the grounds in the original amended application of 7 August 2020 (that is, the matter for which the hearing was listed). Also addressed was the applicant’s suggestion that these proceedings be adjourned pending the resolution of the application for special leave to appeal to the High Court in the matter of Raibevu v Minister for Home Affairs [2020] FCAFC 35 (Raibevu) which was filed on 22 September 2020, The applicant’s counsel acts in Raibevu and contends that it addresses the issues in this case.

4    The respondent opposed leave being granted in relation to the grounds of review dated 7 August 2020 on the basis of a lack of merit. The respondent also opposed the application for an adjournment and further leave to amend on the basis of a lack of merit. The respondent further opposed awaiting the outcome of the special leave application.

5    For the reasons that follow, the application for an adjournment is refused. The application for leave to further amend the grounds of review in the terms set out in the application dated 23 September 2020 is refused. The interlocutory application dated 23 September 2020 is dismissed. Leave to amend the grounds of review in the interlocutory application dated 7 August 2020 is also refused, and that application is dismissed. The original application for review filed on 18 March 2020 is dismissed.

Tribunal decision

6    Given the nature of the proposed grounds it is unnecessary to recite the reasoning in the Tribunal’s decision in any detail.

7    There was no dispute in the Tribunal that the applicant did not pass the character test in s 501(7)(c) of the Migration Act because he had been sentenced to more than 12 months imprisonment. On 23 May 2018, the applicant was convicted and sentenced to multiple terms of 20 months imprisonment for the offences of “drive motor vehicle menaces another with intent, stalk/intimidate intend fear physical harm (domestic), assault occasioning actual bodily harm (DV) and drive motor vehicle during disqualification period”. The applicant has a history of violent offending and on 15 March 2018 received a sentence of imprisonment of 12 months for assault occasioning actual bodily harm as well as 3 sentences of 6 months imprisonment for drive motor vehicle during disqualification offences.

8    The Tribunal addressed the Direction 79 considerations and concluded as follows:

(1)    primary consideration A, the protection of the Australian community, the Tribunal found there is a strong and convincing likelihood that the applicant will engage in further very serious conduct if returned to the Australian community which weighed very heavily against revocation;

(2)    primary consideration B, the best interests of the applicant’s two children, was given “moderate” weight in favour of revocation due to, among other things, the fact that some of the applicant’s offending had imperilled their welfare;

(3)    primary consideration C, the expectations of the Australian community, weighed heavily against revocation;

(4)    the other considerations, the applicant’s ties to Australia including an uncle and a cousin (in addition to his children) weighed in favour of revocation, the other factors being considered either irrelevant or neutral.

9    The Tribunal concluded that having regard to the Direction 79 considerations it could not exercise the discretion to revoke the cancellation.

Procedural history

10    As will have been apparent from the brief overview above, this matter has a significant procedural history which includes inter alia, that the applicant has repeatedly failed to comply with the procedural orders as to the conduct of the proceedings. Given the nature of the applicant’s application for an adjournment with further amendments (some unspecified) of the notice of review, it is necessary to recite the history in some detail as that is the context in which the application is made.

11    These proceedings began as an application for judicial review of a decision made by the Tribunal on 12 February 2020 to affirm a decision of a delegate of the Minister not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act. On 18 March 2020, the applicant filed this proceeding while unrepresented with a single ground alleging “Procedural Un-fairness”. Procedural orders were made on 6 May 2020 to ensure the matter was prepared for the hearing, which was subsequently listed for 27 July 2020. These orders included that the applicant’s submissions were to be filed 14 days prior to the hearing.

12    Prior to the hearing date the applicant engaged counsel on a direct access basis. It appears from the material this occurred on or about 30 June 2020. At this stage the applicant was not represented by a solicitor.

13    The applicant did not comply with the order for the filing of his submissions. As a result, at the respondent’s request, the matter was listed on 23 July 2020 for a case management hearing to ascertain the progress of the matter. On that day, the hearing on 27 July 2020 was vacated by consent, on the basis that the applicant’s counsel indicated that he wished to plead issues arising under the Constitution. At the case management hearing the Court made further procedural orders by consent which included the filing of an amended application for review by 24 July 2020, the service of s 78B notices by 29 July 2020 and the filing of submissions by 3 August 2020. A new hearing date of 18 August 2020 was set. That hearing was to address whether leave should be granted to rely on the amended application which was to have been filed and the substantive hearing in relation to the original ground of review (if still relied on). At the case management hearing on 23 July 2020 the applicant applied for the page limit on his written submissions to be 20 pages. That application was refused and an order was made providing for a 15 page limit.

14    No amended application for review was filed on 24 July 2020. Rather, on 24 July 2020, the applicant’s counsel sent an email to chambers advising that “barristers are unable to access the Commonwealth Portal on direct access briefs unless the applicant grants permission” and that it was anticipated the situation would be rectified early next week. Chambers responded confirming that the interlocutory application could be provided to chambers by email that afternoon prior to being formally filed early next week. On 25 July 2020, the applicant did provide to chambers via email what was described as an “unsettled version” of the amended application for review dated 24 July 2020. That document ran to 73 paragraphs and was 13 pages in length. On 29 July 2020, the applicant sent another email to chambers which, amongst other documents, attached what was described as “the current draft of the amended application” which was dated 27 July 2020. That document ran to 73 paragraphs and was approximately 14 pages in length. On 6 August 2020, the applicant sent a further email to chambers which, amongst other documents, attached what was described as the “settled further amended application” which was dated 8 July 2020. It can be assumed that date was an error. That document ran to 9 pages and was substantially different to the earlier two versions that had been provided. On 7 August 2020 a notice of acting was filed by the applicant’s solicitors and an interlocutory application dated 7 August 2020 was filed by the applicant seeking leave to rely on the annexed further amended application for review dated 7 August 2020. Only the 7 August 2020 interlocutory application annexing the amended application for review was filed on the electronic court file. The applicant also filed s 78B notices on 7 August 2020. The s 78B notices were subsequently served. On 14 August 2020 the hearing date was further adjourned on the applicant’s application and a new date set for 23 September 2020. Suffice to say that at this stage the applicant had not complied in many respects with the orders made on 23 July 2020.

15    As explained below, the amendments to the notice of review sought to expand the nature of the proceedings, inter alia, seeking declarations and a writ of habeas corpus. Written submissions were filed by the parties addressing those grounds. The applicant filed submissions late on 7 August 2020 of 20 pages in defiance of the order. As explained below, significantly, in doing so, the applicant’s counsel failed to refer to Raibevu, an authority of the Full Court delivered on 10 March 2020, in which the applicant’s counsel appeared and mounted what appear to be primarily the same type of submissions as in this case, which were rejected by the Full Court. The respondent in its written submission filed on 12 August 2020 quite properly pointed out this fact and relied inter alia on the reasoning in that judgment opposing leave to rely on the amended grounds primarily on the basis of a lack of merit.

16    At approximately 5:45 pm on 22 September 2020, the evening before the hearing, the applicant filed further written submissions of 12 pages, and an affidavit annexing a copy of the originating application filed in this Court in the matter of Raibevu and an application filed in the High Court for special leave to appeal from the judgment of this Court in that matter, dated 22 September 2020. These documents were filed without notice to the Court, and did not comply with the Court orders. No proper explanation was provided as to the filing or timing of the submissions and attendant documentation (which related to the matter of Raibevu). The applicant had been aware of the judgment in that matter, as he was counsel, and was, since the time of the respondent’s submissions, aware of its reliance on it. In the written submission the Court was informed for the first time that ground one of the amended application dated 7 August 2020 was abandoned. Although the applicant described the submission as an outline of oral submissions, it contained new matters of substance as a reply to the respondent’s submission.

17    The matter remained listed for 23 September 2020 at 10:15am and the material provided by the applicant on 22 September 2020 did not alter that the issue at that hearing was whether leave ought to be granted to the applicant to rely on the amended notice filed on 7 August 2020. The respondent did not suggest that he was prejudiced by the late filing of the material.

18    Without notice, at 10:22am on the morning of the hearing, following a delay in the applicant’s counsel accessing the Microsoft Teams link, the Court was emailed an interlocutory application seeking inter alia, that the hearing be adjourned, leave be granted to issue a subpoena, leave be granted to further amend the application, and which foreshadowed that a statement of claim including allegations of false imprisonment and negligence, not yet formulated, would be filed. That application was not formally filed on the electronic court file. An affidavit was also provided via email to chambers.

19    At the hearing the applicant submitted that the adjournment of the hearing for leave in respect to the amended notice of 7 August 2020 was necessary to inter alia, further investigate the matter by issuing a subpoena to determine what steps the Commonwealth has taken to remove the applicant to Fiji, to further amend the application and to file a statement of claim alleging negligence. It was also said that were leave to be granted further s 78B notices would be required to be filed and served.

20    It also became apparent during the hearing that not only was the opportunity to further amend the grounds of the application sought but that the applicant sought an opportunity “to refine the submissions and perhaps the grounds so there’s greater precision”. It is to be assumed that this related to or included the amended grounds of review dated 7 August 2020 and those which had been provided by email at the outset of the hearing and the two sets of submissions which had already been filed. The applicant has had many opportunities to prepare the grounds of review he wished to rely on, and the indulgence of the Court in adjourning the hearing on two occasions prior to the hearing. I am not satisfied that a further adjournment ought to be granted.

21    At approximately 5pm on 12 October 2020 the applicant’s solicitor sent an email to chambers, nearly three weeks after the hearing at which time the decisions were reserved, requesting an opportunity to file supplementary submissions. In making the request the email stated “we note her Honour raised a number of procedural questions, which required further consideration and instructions from the applicant. We sought the Respondent’s consent for the applicant to file supplementary submissions with the Court and with the respondent having the same opportunity this afternoon, however, we note that the Respondent did not consent to further submissions being filed. We have been advised by the Respondent that we wish to make the approach to list the matter for directions in relation to supplementary submissions, but that the Respondent’s position is that there is no basis for the suggestion that further submissions are required in this matter.” The applicant requested orders for the applicant to file submissions with an opportunity for the respondent to file written submissions in reply. The request was refused with the parties being notified that the decision was to be delivered the next week. The request did not identify what topic(s) was sought to be addressed. Each of the matters which were heard on 23 September 2020 were applications by the applicant. Any questions asked at the hearing arose out of those applications. There was no suggestion at the hearing that the applicant’s lawyers required further instructions. Nor was there any suggestion in the email request that matters were put without instructions or were inconsistent with instructions, or that submissions were to be withdrawn. It is to be expected that if those situations arose the Court would have been informed. Rather, it appears the applicant seeks an opportunity to provide further submissions in support of his applications. On the material provided, no proper basis had been identified to warrant the applicant being given an opportunity to do so in circumstances where the matter had been heard and judgment reserved.

Consideration

Interlocutory application dated 23 September 2020

22    The applicant’s counsel provided no proper explanation for the timing of this application. It was purportedly based on the fact that “things were rapidly changing in this area” which, the applicant said referred to the decisions of AJL20 v Commonwealth of Australia [2020] FCA 1305 (AJL20) and BNL20 v Minister for Home Affairs [2020] FCA 1180 (BNL20). It was submitted that the timing of the filing of these documents was beyond his control. However, those decisions were delivered on 11 September 2020 and 10 August 2020 respectively and do not provide a basis for filing the application on the day of the hearing without prior notice to the Court and after the hearing was listed to commence. Nor, by themselves, do they provide a basis for any claim. The applicant’s submissions provided on the evening of 22 September 2020 did not refer to any impending application which included an adjournment and therefore did not explain the timing of the application or why it was made without notice.

23    Importantly, although the application of 23 September 2020 contained further draft particulars of a ground of review, the basis of the adjournment was that further amendments would be sought and a statement of claim would be filed after a subpoena had been issued to the Minister to determine the basis of the claim. The applicant also submitted that there would be a need for further written submissions and fresh s 78B notices would need to be issued.

24    The proposed amendments seek to introduce into the proceedings claims of a substantially different nature to those currently before the Court.

25    The current proceedings relate to an application dated 7 August 2020 seeking leave to amend the grounds of review in the original application dated 18 March 2020, for review of the Tribunal’s decision. The leave application contains four grounds (grounds two to five remain on foot with ground one having been abandoned) which are directed to the validity of the decisions in respect to cancellation of the visa by the delegate and the non-revocation of the cancellation by the Tribunal. As explained in more detail below at [72], the allegation of unlawful detention in ground five, which is the ground sought to be amended by the 23 September 2020 application, is based on the preceding grounds in the amended application of 7 August 2020, which relates to either or both the decision to cancel or the non-revocation of the cancellation, of the applicant’s visa. The draft particulars now sought to be added in the amended application dated 23 September 2020 relate to indefinite detention, and claims of a breach of duty of care. These claims, even on the applicant’s case, are not complete, as is apparent from the applicant’s suggestion that future amendments would likely be made and the foreshadowed filing of a statement of claim, following the issue and return of the proposed subpoena.

26    The affidavit relied on by the applicant provided on 23 September 2020 is very brief and general in nature and is based on two media articles, one dated 24 March 2020 where it was said there was one case of Covid-19 in Villawood Detention Centre (Villawood), and one dated 13 July 2020 in which it is reported that staff from the Villawood were at the Crossroads Hotel on 4 July 2020 and were self-isolating. The affidavit provides no evidence as to the applicant apart from general assertions by his solicitor that the applicant faces a “real risk of contracting COVID19 whilst detained”; that as a result of the pandemic, restrictions have been imposed on his liberty and freedom of movement in detention; and that the applicant has suffered mental and physical harm. No evidentiary basis for the solicitor’s assertions were provided. If there were a current basis to allege that the applicant ought not to be in Villawood because of Covid-19 one would have expected that to have been addressed by this stage and, in any event, that proper material would have been put before the Court before the day of the hearing.

27    The two decisions referred to by the applicant BNL20 and AJL20 do not assist the applicant or overcome the difficulties with the evidence as referred to above. BNL20, which involved injunctive proceedings on the basis of Covid-19 in a Melbourne based detention centre, was decided on 10 August 2020, and is plainly fact specific. AJL20, which addressed the issue of indeterminate detention is also plainly distinguishable from this case given the stage this case is at. Leaving aside any arguments about the principles contained therein, the applicant in this matter is currently before the Court challenging the cancellation, or non-revocation thereof, of his visa and is seeking to remain in Australia.

28    The suggestion of indeterminate detention is based on a media release dated 22 May 2020 about the borders of Fiji having closed due to the pandemic. However, as a result of the cancellation of his visa by the delegate, the applicant became an unlawful non-citizen and was subject to the lawful operation of s 189 of the Migration Act: Fernando v Commonwealth of Australia [2014] FCAFC 181; (2014) 231 FCR 251 (Fernando); special leave to appeal revoked: Fernando by his Tutor Ley v Commonwealth of Australia & Anor [2015] HCATrans 286 (5 November 2015); and see Uolilo v Minister for Home Affairs [2020] FCA 1135 at [53] – [54] (Uolilo). The applicant’s detention was the inevitable result of the delegate’s decision: Uolilo at [54]. As the applicant is an unlawful non-citizen “ss 189 and 196 of the Migration Act are lawful authority to detain an unlawful non-citizen for the purpose of lawful removal from Australia as soon as that becomes practicable”, the applicant bears “at least an initial evidentiary burden of establishing that there is reason to suppose that his detention has ceased to be lawful by reason that it is no longer reasonably foreseeable that he will be removed from Australia”: Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 at [39]. It is plain that the applicant’s removal is not currently practicable because he has proceedings on foot to challenge the decision not to revoke the cancellation of his visa. Given the stage of the proceedings, the applicant has not pointed to any evidence that it is arguable at this stage that his detention is unlawful.

29    The applicant has not provided a proper basis on which the proposed amendment could be argued. The matters in relation to any potential statement of claim at this stage are speculative at best.

30    Given the above, the proceedings which are currently before this Court ought not to be delayed any further, as the adjournment and granting leave to further amend the application would do. The delay would likely be substantial given the applicant’s conduct of these proceedings to date, and the nature of the basis for it, which includes conducting further investigations.

31    That said, as the respondent appropriately acknowledged, this conclusion does not prevent the applicant commencing proceedings making such allegations if and when there is evidence on which to base such claims. I note that any suggestion of urgency by the applicant (which was only referred to in the application of 23 September 2020) is belied by the applicant’s conduct of these proceedings. This includes the applicant’s suggestion that these proceedings be adjourned until after the determination of special leave in Raibevu.

Interlocutory application dated 7 August 2020

32    As noted above, the applicant emailed a number of versions of the amended grounds of review before filing the document called “further amended application for review of a migration decision” dated 7 August 2020 which was annexed to an interlocutory application filed on the same date. It is the grounds contained in the 7 August 2020 application that are properly before the Court and which I address.

33    Also as noted above, the applicant advised that he withdrew ground one of the original amended application dated 7 August 2020 in the written submissions filed on 22 September 2020. That leaves grounds two to five.

34    Leave is required to amend the application to rely upon these new grounds of review.

35    The Court has a discretion in determining whether to grant leave to a party to amend an originating application: r 8.21(1) of the Federal Court Rules 2011 (Cth). The discretion is broad, with the onus being on the party seeking leave to amend to persuade the Court that such leave should be granted: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17].

36    As noted above, the respondent opposed leave to amend on the basis of a lack of merit of the proposed grounds for review. Whatever might be the other considerations relevant to the grant of leave to amend, if the grounds have no merit or are otherwise futile, there is no proper basis for leave to be granted: SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [47]-[54], an authority relied on by the applicant in support of the grant of leave.

37    The applicant’s submissions in support of the amended application are flawed. There is no proper basis to conclude that the grounds are arguable such as to warrant the grant of leave. For the reasons below, leave to amend the notice is refused.

38    For the reasons given below at [75]-[79], it is also not appropriate in this case to accede to the applicant’s submission that an option is to defer this matter to await the outcome of the application for special leave in Raibevu.

Ground 2: The exercise of power by officers of the Commonwealth abrogated and curtailed the legal rights of the applicant for conditional release on parole

Ground 3: The exercise of power by the officers of the Commonwealth abrogated and curtailed the sentence and parole orders of the District Court of NSW in violation of the separation of powers doctrine under the Cth Constitution and the NSW Constitution

Ground 4: The exercise of power by the officers of the Commonwealth abrogated and curtailed the sentence and parole orders of the District Court of NSW and the State Parole Authority NSW in violation of the principle of State immunity

39    These grounds are appropriately addressed together.

40    The amended grounds dated 7 August 2020 each refer to the “decisions” which are identified as being (1) the decision of the delegate to cancel the visa on 19 September 2020, (2) the delegate’s decision to detain the applicant in Villawood pursuant to s 189(1) of the Migration Act, and (3) the decision by the Tribunal to uphold the decision of the delegate not to revoke the cancellation of the visa (the decisions). In the amended grounds the applicant does not distinguish between the decisions but rather alleges each ground as relating collectively to the decisions.

41    As the respondent submitted, this Court has no jurisdiction to review the delegate’s decision made on 19 September 2018 to cancel the applicant’s visa. The cancellation decision under s 501(3A) can only be challenged in the Federal Circuit Court because it was a decision made by a delegate of the Minister, unless proceedings instituted in that Court challenging the decision are transferred to this Court under s 39 of the Federal Circuit Court of Australia Act 1999 (Cth): s 476(1) and s 476A(1)(a) of the Migration Act: Azar v Minister for Immigration and Border Protection [2018] FCA 1175; (2018) 261 FCR 1 at [7]. This Court would only have jurisdiction in relation to that decision if the applicant had filed an application within the 35-day time limit in the Federal Circuit Court of Australia and that Court had then referred the proceeding to this Court: s 476A(1)(a) of the Migration Act. That did not occur. This challenge is now made in this Court two years after the delegate’s decision.

42    It follows that this Court has no jurisdiction in relation to the first of the decisions referred to.

43    Despite the fact the respondent, quite properly, made the submission as to jurisdiction in its written submissions, the applicant chose not to address the submission in either the written submissions filed without leave on 22 September 2020 or orally during the hearing. His assertion during the hearing that this was a new submission is plainly incorrect. Moreover, it is the applicant who is bringing this application and ought to have considered the jurisdiction to bring the claim before doing so.

44    The applicant’s reference to the second decision is also flawed. There is no evidence that there was any decision by the delegate to detain the applicant. As noted above at [28], the applicant’s detention was the inevitable result of the delegate’s decision: Uolilo at [54], as the applicant became an unlawful non-citizen and was subject to the lawful operation of s 189 of the Migration Act. Section 189(1) of the Migration Act relevantly provides that “if an officer knows or reasonably suspects that a person in the migration zone … is an unlawful non-citizen, the officer must detain the person”. That inference can be drawn from the surrounding circumstances and direct evidence of an officer’s state of mind is not required in a case such as this where it is capable of being inferred: Commonwealth of Australia v Okwume [2018] FCAFC 69; (2018) 263 FCR 604 at [151], [325]; McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 at [135], [147] (McHugh); Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 at [68], [80]. Given that the applicant was an unlawful non-citizen “an officer could and would have formed the reasonable suspicion referred to in s 189(1) …”: Fernando at [81] cited with approval in Uolilo at [54]. As such, there is no evidence before me that there was any decision by the delegate to detain the applicant.

45    It follows that only the third decision, that is the non-revocation decision of the Tribunal, is within this Court’s jurisdiction. For the reasons articulated in Raibevu at [114]-[116] referred to at [53] below, the consequence of that being the sole basis of the challenge for these grounds is that the visa would remain cancelled. The applicant would remain an unlawful non-citizen subject to the operation of the Migration Act.

46    Up until the further amended grounds dated 7 August 2020, the grounds alleged error by the Tribunal. The further amended grounds on 7 August 2020 broadened the grounds to refer to the collective decisions as opposed to the Tribunal’s decision. I assume that the applicant’s inclusion of the decision of the delegate in the relief sought in the amended application in this case was an attempt to overcome the Court’s criticisms in Raibevu. However, as explained above at [41], this Court has no jurisdiction in this case in respect to the delegate’s decision. The issue is not simply overcome by making an allegation about the delegate’s decision.

47    In any event, even if the decisions could be challenged, the arguments are flawed. The applicant has not identified an arguable basis on which to grant leave.

48    The applicant contended that there is a fundamental right to conditional parole, based on the principle of legality, and that those rights have been curtailed. The applicant contended that the decisions referred to above at [40] were not enlivened “until after the applicant’s conditional release on parole and a period of supervision and rehabilitation had been completed and the applicant was discharged from the supervision of the District Court of NSW”. It was alleged the decisions “abrogated, interfered or dissolved the sentence and parole orders of the District Court of NSW in violation of the separation of powers”. It was submitted that the Parole Board is a judicial body. It was also submitted that the decisions amounted to a reversal of the District Court’s orders. That submission was said to be based on revisiting the Kable principles (see Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 (Kable)), and involved having “a new principle set”. It was further submitted that the decisions curtailed the independence of the District Court and the Parole Board in breach of s 106 and s 107 of the Constitution, that argument was said to rely on the application of Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31 (Melbourne Corporation).

49    The applicant’s submission, despite the lengthy grounds of review, the two lengthy written submissions and oral argument did not address matters which were fundamental to his application.

50    As a starting point, the applicant’s submissions do not address the terms of the Migration Act, and in particular, the provisions which were central to the cancellation and non-revocation decisions. Although the applicant’s submission relies on the principle of legality it is a general assertion that the decisions violated the principle of legality, with the principle not being applied to any legislation at issue in this case. The violation of this principle is alleged as the jurisdictional error in ground two.

51    The applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act. That provides that the Minister must cancel a visa that has been granted if satisfied that the person has a “substantial criminal record” as defined in s 501(7)(c): s 501(3A)(a)(i), and, at the time of making the decision, the person is serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of the Commonwealth, State or Territory. It is not in issue that those matters were satisfied. The Migration Act therefore expressly provides that the cancellation decision occurs while the applicant is serving the sentence in the custodial institution. The applicant simply did not address the text of the provision. That precondition having been satisfied triggered the mandatory cancellation in this case. The applicant does not challenge the validity of that, or any other, provision.

52    Rather, and without reference to the Migration Act, or that the applicant would be an unlawful non-citizen as a result of the mandatory cancellation, the applicant asserts, as noted above, that the collective decisions “were not enlivened or operative until after the applicant’s conditional release on parole and a period of supervision and rehabilitation had been completed and the applicant was discharged from the supervision of the District Court of NSW” (identified as the jurisdictional error in ground three).

53    Significantly, the types of arguments in this application were raised by the applicant’s counsel in Raibevu with the Full Court concluding they lacked merit so as to refuse an application for leave to amend the grounds of appeal. Although the passage is lengthy it is appropriate to recite the Full Court’s reasoning in full at [109]-[121] (emphasis in the original):

109    This proposed ground was included in the further amended notice of appeal emailed to the members of the Court on 9 February 2020. It asserts several discrete jurisdictional errors. It, too, is supported by lengthy “particulars” which appear to allege further discrete errors, including an allegation that the Minister failed to have regard to a report of the New South Wales Department of Corrective Services dated 17 January 2017 ([2(c)]), failed to take into account that Mr Raibevu would have been on parole if the revocation decision was made and would be subject to supervision ([2(e)]) and denied Mr Raibevu procedural fairness “and the respondent did not have the benefit of any decisions or reports of the parole board to grant the appellant parole” ([2(f)]). The particulars otherwise do no more than to assert background facts and to repeat the words of the ground.

110    The content of the argument in connection with the Constitution was diffuse and unclear. We take it has having these two elements:

(1)    The Minister’s decision under s 501CA(4) had the effect of undermining the institutional integrity of the District Court of New South Wales and so offended the principle stated by the High Court in Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51. This was because that Court had examined the prospects of Mr Raibevu’s rehabilitation and had concluded that he should be released upon the expiry of the non-parole period. The effect of the Minister’s decision to put Mr Raibevu in immigration detention was to frustrate the carefully considered conclusion of the District Court that the administration of justice required the appellant’s release into the community in the following month.

(2)    If the Minister’s decision under s 501CA(4) did not interfere with the institutional integrity of the District Court, then it instead had the effect of frustrating the exercise of the Parole Board’s power to order Mr Raibevu’s release. The Parole Board was to be seen as a key component in the administration of criminal justice in New South Wales. The administration of criminal justice was a core responsibility of the States. An intrusion into such a core area was invalid to the extent that it destroyed or curtailed the continued existence of the States or their capacity to function: Melbourne Corporation v Commonwealth (1947) 74 CLR 31.

111    Both arguments suffer from a significant initial difficulty.

112    The Minister’s decision made on 24 July 2018 under s 501CA(4) was a decision not to revoke the earlier decision of the delegate made on 1 February 2017 to cancel Mr Raibevu’s visa under s 501(3A). It was the cancellation decision that operated in a practical sense to bring about his detention at Villawood pursuant to s 189 of the Act.

113    The only challenge in this proceeding is to the Minister’s later non-revocation decision. No challenge was made at first instance to the anterior decision of the delegate to cancel the visa in the first place. That this is so is apparent from the originating application. It sought an order setting aside the Minister’s decision of 24 July 2018 but made no reference at all to the delegate’s decision of 1 February 2017. Before the Full Court no submission was received to the effect that Mr Raibevu should now be permitted to amend his originating application to include a challenge to the delegate’s cancellation decision.

114    This has unavoidable consequences for the constitutional challenges. The only power exercised by the Minister was the power under s 501CA(4). Even if the constitutional challenge to those provisions were sound, it would only mean that s 501CA(4) was invalid to the extent that it authorised the Minister not to revoke the cancellation. A finding to that effect would leave the delegate’s cancellation decision in place because no challenge has been brought to it; i.e. the visa would remain cancelled even if this Court upheld the challenge to s 501CA(4).

115    Such an outcome would have no utility. To put it another way, Mr Raibevu’s constitutional challenge is incapable of yielding any relief.

116    It is established that a court should not embark upon the determination of the validity of an Act of Parliament unless it is necessary to do so: Re Patterson; ex parte Taylor (2001) 207 CLR 391 at 473 – 474 (Gummow and Hayne JJ); Attorney-General (NSW) v Brewery Employees’ Union of NSW (1908) 6 CLR 469 at 590 (Higgins J) (“It is only when we cannot do justice, in an action properly brought, without deciding as to the validity of the Act, that we are entitled to take out this last weapon from our armoury” (emphasis added)). This doctrine of judicial restraint in relation to constitutional questions is an aspect of deference between the separate branches of government and reflects a recognition of the solemnity involved in declaring invalid laws made by a representative legislature.

117    In this case, the failure of Mr Raibevu to challenge the decision to which his constitutional argument actually relates has the consequence that that challenge is pointless. There was perhaps a recognition of this problem at [55] of Mr Raibevu’s amended written submissions where it was said that:

… the executive decision by the delegate to cancel the visa and the executive decision by the respondent not to revoke that decision, interfered with the administration of justice …

118    But this submission goes nowhere if no challenge is made to the delegate’s decision. Further, it reveals a certain looseness of thought because, if the delegate’s decision were invalid, then the Minister’s decision not to revoke it would be irrelevant. The present constitutional argument can only be coherently pitched at a cancellation decision under s 501(3A) for it is only the cancellation decision which can have any impact on Mr Raibevu’s ability to apply for parole.

119    Even if the arguments were capable of being directed at the non-revocation decision, they would confront other realities, for which Counsel for Mr Raibevu could supply no coherent answer.

120    First, the order sentencing Mr Raibevu to imprisonment did not require that he be released on the expiry of the non-parole period: Knight v Victoria (2017) 261 CLR 306 at [8] and [25]. Rather, upon the expiration of the non-parole period, Mr Raibevu was eligible to apply for conditional release: Crimes (Administration of Sentences) Act, s 126. The question of whether Mr Raibevu might be released on parole (and, if so, on what conditions) was not a question arising before any court, let alone a court vested with federal jurisdiction. It was a matter for the Executive government of the State of New South Wales. No issue arises under Ch III of the Constitution.

121    Second, to the extent that Mr Raibevu relied on the principles stated in Melbourne Corporation, the submissions did not identify an arguable case that s 501CA(4) was a law of general application which operated to destroy or curtail the continued existence of the State of New South Wales or its capacity to function as a State.

54    That passage reflects that the submissions in Raibevu were relevantly to the same effect as in this case. The passage also reflects that the submission is predicated on a fundamental misconception. As noted above, it is of significant concern that the applicant’s counsel, who appeared as counsel in that matter, did not refer to this decision in his written submissions in support of the grant of leave in this case. Legal representatives have an obligation to assist courts to perform their functions in accordance with the law. In New South Wales the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) expressly requires counsel to inform the Court of relevant authority contrary to their client’s case: r 29.

55    Rather, only after the respondent in its written submission referred to and relied on Raibevu did the applicant address the case, and it did so in the submissions filed on 22 September 2020 attaching the special leave application in that matter, filed in the High Court on the same date, while submitting the two cases are distinguishable. It was submitted by the applicant that this case relies on the three identified grounds while Raibevu only relied on one ground. So much is true. The applicant also submitted that the argument is now more advanced than that presented in Raibevu. However, as is apparent from the Full Court’s summary of the submission set out at [53] above the argument is to the same effect, although it can be accepted that from the applicant’s view the argument is more advanced and may have been presented in this Court in more detail. The argument is underpinned by the same propositions.

56    The Full Court’s observations in Raibevu are at least, seriously considered dicta: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [134]. I agree with the Full Court’s observations in Raibevu.

57    The applicant’s ultimate approach was to ignore the reasoning and conclusions in Raibevu and the authorities referred to therein, in particular Knight v Victoria [2017] HCA 29; (2017) 261 CLR 306 at [8], [25] (Knight).

58    The applicant’s failure to address Raibevu, and in particular the reference to Knight, is particularly significant as the applicant’s submission is based on an erroneous, but for the purpose of his argument necessary, premise that there is a fundamental right “to conditional release on parole and rehabilitation for non-citizens”. As Knight makes clear such a right does not exist. Despite the applicant’s oral submission to the contrary, the applicant’s written submission reflects that this proposition underpinned all of the grounds. The submission also proceeds on assertions as to the nature of the orders of the District Court, parole, and the Parole Board, which are contrary to the decision in Knight. In that context it is appropriate to refer briefly to that decision.

59    The circumstances in Knight were that Mr Knight had a non-parole period imposed and when the expiration of the non-parole period was imminent, the Parliament of Victoria enacted the Corrections Amendment (Parole) Act 2014 (Vic) to insert s 74AA into the Corrections Act 1986 (Vic) (Corrections Act). The effect of s 74AA of the Corrections Act was to prevent the Parole Board from ordering that Mr Knight be released on parole unless satisfied of certain matters. The argument was referred by special case to the High Court asking the single question, whether s 74AA was invalid on the ground that it is contrary to Ch III of the Constitution. Mr Knight advanced two arguments, each invoking Kable, that a law which substantially impairs the institutional integrity of a court so as to be incompatible with its role as a repository of federal jurisdiction under Ch III of the Constitution is invalid. The first argument was that the section interfered with the sentences imposed by the Supreme Court. The Court answered the question in the negative. The first argument failed “because neither in its legal form nor in its substantial practical operation does the section interfere with the sentences imposed by the Supreme Court”: Knight at [6].

60    In Knight the Court observed at [8]:

When sentencing Mr Knight in the Supreme Court, Hampel J correctly characterised a minimum term not as a period at the end of which the prisoner was to be released but rather as "a period before the expiration of which, having regard to the interest of justice, he cannot be released" [citation omitted]...

61    And at [25]:

The conclusion in Crump that s 154A "did not impeach, set aside, alter or vary the sentence under which the plaintiff suffers his deprivation of liberty" applies equally to s 74AA. That conclusion reflected the nature and purpose of a court's determination of a minimum term of imprisonment in the context of a statutory regime for parole as explained in Power v The Queen and as correctly identified by Hampel J to have been applicable to the fixing of a minimum term under s 17 of the Sentences Act [citation omitted]

62    And at [28]-[29]:

Whether or not Mr Knight would be released on parole at the expiration of the minimum term was simply outside the scope of the exercise of judicial power constituted by imposition of the sentences. The sentences imposed by Hampel J could not, and did not, speak to that question.

By making it more difficult for Mr Knight to obtain a parole order after the expiration of the minimum term, s 74AA does nothing to contradict the minimum term that was fixed. Nor does it make the sentences of life imprisonment "more punitive or burdensome to liberty". The section did not replace a judicial judgment with a legislative judgment. It does not intersect at all with the exercise of judicial power that has occurred [citation omitted].

63    It follows that the question of whether a person might be released after serving a minimum term is “simply outside the scope of the exercise of judicial power constituted by imposition of the sentences”: Knight at [28]; Crump v New South Wales [2012] HCA 20; (2012) 247 CLR 1 at [28] (Crump). The exercise of judicial power with respect to a trial on indictment is spent on the imposition of the sentence in relation to the offence(s), and the responsibility for the prisoner passes to the executive branch of the government of the State: Crump at [58] citing Elliot v The Queen [2007] HCA 51; (2007) 234 CLR 38 at [5].

64    Those decisions reflect that the premise underlying the applicant’s submission is incorrect as to the consequence of the sentence imposed on him, the nature of parole, who bears the responsibility for the prisoner after sentence, and the status of the Parole Board. It reflects that the underlying proposition that the applicant has a fundamental right to conditional parole is incorrect (ground 2), as is the submission that the visa cancellation interfered with or impaired the judicial power of the State court (grounds 3 and 4). Those propositions underpin each of these three amended grounds.

65    The applicant was aware of Knight given the decision in Raibevu, and was aware that the respondent was relying on that aspect of Raibevu in opposing the grant of leave. In that context, as observed above at [58], the applicant did not address Knight. During the hearing when the applicant was asked about Knight he submitted that it was not relevant as this is not a criminal case and if it was relevant, that case was wrongly decided. That authority is a recent decision of the High Court. The fact that this is not a criminal case does not affect the reasoning in Knight, nor its applicability to this case. The applicant has not identified any arguable basis why that would be so. This Court is bound by that authority.

66    Moreover, the authorities the applicant relied on to raise an arguable case that he has a fundamental right to parole do not support that proposition. For example, the applicant’s reliance on The Queen v Shrestha [1991] HCA 26; (1991) 173 CLR 48 (Shrestha) does not assist his argument. I note that although the applicant sought to distinguish Knight as it was a criminal matter that context did not appear to trouble the applicant in relation to Shrestha or the other criminal cases he relied on. In any event, consistently with the later decision in Knight, it is clear in Shrestha that a non-parole period is not an order that the applicant serve a period of his sentence on parole, rather, it is an order that he be eligible to apply for parole upon the expiry of the non-parole period. Indeed, Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, one of the authorities relied on by the applicant, was relied on by the Court in Knight to support its conclusion as to the true nature of a non-parole period.

67    The applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act, with the validity of that provision not being challenged. As a result, on the applicant being released from prison he was an unlawful non-citizen and was therefore required to be detained pursuant to s 189 of the Migration Act.

68    The decisions did not abrogate or curtail or dissolve or reverse the applicant’s “sentence and parole orders of the District Court of NSW”, which is the premise underpinning each proposed ground of review. The applicant has not identified any arguable case in support of that premise, and that the decisions had that effect in violation of the principle of legality (ground two), Ch III of the Constitution (ground three), or the principle of State immunity (ground four).

69    More particularly, as explained above, the only decision under review within this Court’s jurisdiction in this case is the decision of the Tribunal affirming a decision of the delegate not to revoke the cancellation of the applicant’s visa under s 501CA(4) (a provision not addressed by the applicant). That decision did not have the effect contended for in violation of the principle of legality, Ch III of the Constitution or State immunity. The applicant has not identified any arguable case that it did so. Moreover, a challenge to the Tribunal’s decision would still leave the delegate’s cancellation in place: Raibevu at [114], [118].

70    As the Court in Raibevu concluded, no issue under Ch III of the Constitution arises. The applicant has not identified any arguable case that the decision(s) raise any issue of state immunity pursuant to s 106 and s 107 of the Constitution.

71    In addition to the issues raised above at [40]-[46], these grounds, as argued, are without merit and do not properly justify the grant of leave.

Ground 5: unlawful detention

72    As this ground is pleaded in the original amended application dated 7 August 2020 it is dependent on the preceding grounds. It is based on the assertion that ss 189 and 196 “purport to authorise the abrogation, curtailment, interference or dissolution of the sentence and parole orders of the District Court of NSW”. As those grounds are not such as to justify the grant of leave, this ground must necessarily also be without sufficient merit. Also as noted above, although the ground asserts that it relates to the exercise of power by officers of the Commonwealth to detain the applicant (referring to the delegate and the Minister), and alleges that there is unlawful detention by the Minister, there is no proper basis to assert that there was a decision of the delegate or the Minister to detain the applicant. Rather the applicant is being detained by the Commonwealth pursuant to the Migration Act. This is so in circumstances where the Commonwealth is not a party to the proceeding. Moreover, as explained above at [28], the detention is the inevitable consequence of the cancellation of the applicant’s visa. Insofar as the applicant makes a general assertion that the nature and duration of the applicant’s detention has not been objectively considered, that without more provides no basis for the claim. It follows that the applicant has not identified any arguable basis for this ground.

73    In those circumstances the applicant’s submission that there is a conflict in the authorities in this Court between McHugh and Uolilo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394, does not arise for consideration.

Original application for review filed 18 March 2020

74    The applicant confirmed at the hearing that the single ground of review contained in the original notice was no longer relied on.

Delay until after the application for special leave to the High Court in Raibevu

75    As noted above the applicant submitted that an option was to adjourn these proceedings until after the outcome of the special leave application in Raibevu. This submission is inconsistent with the applicant’s submission that Raibevu is distinguishable from this case on the basis that the proposed grounds of review are different (there being three separate proposed grounds as opposed to one). The applicant submitted that the grounds in the High Court special leave application reflect the grounds in this matter. That may well be so but that raises a hurdle for the applicant as he must be submitting that the High Court should grant special leave in relation to matters not argued below.

76    However, even if, as the applicant submitted, the argument is now more advanced than in Raibevu, the argument at its heart is relevantly similar. As explained above, the applicant’s attempt to distinguish Raibevu is misplaced. The respondent opposed the adjournment, and submitted that the matter, which had already been delayed ought to be addressed. That would enable this matter to progress through the Courts.

77    Given that the special leave application has only recently been filed it will take some time to progress through the system. I note also that during the hearing, the applicant stated that he would be amending that application for special leave (despite the fact that it had only been filed the day before), and he intended to add additional grounds or complaints. I also note that the applicant acknowledged that if special leave were refused that may, but would not necessarily, resolve this case and it may, at that time, need to proceed.

78    The applicant may also face other hurdles in the application for the grant of special leave. The application is substantially out of time and, on the material provided to this Court with respect to that application, no explanation for that delay has been given. Rather, one possible inference is that the timing of the filing of the application appears to have been dictated by the respondent’s reliance on the decision in this matter. In addition the special leave sought is from a discretionary decision to refuse the grant of leave to amend the grounds of appeal to include the ground complained of. It is also apparent from the special leave application, with which this Court has been provided, that the applicant has not addressed or challenged aspects of the judgment in Raibevu, in particular the application of Knight. The application also asserts that certain decisions were beyond power which were not the subject of any challenge in the Full Court in Raibevu.

79    In the circumstances I am not satisfied that it is appropriate to adjourn these proceedings until after the outcome of the special leave application in Raibevu.

Conclusion

80    The adjournment of the determination of the interlocutory application dated 7 August 2020 and the interlocutory application dated 23 September 2020 is refused. The interlocutory application dated 7 August 2020 is dismissed. The interlocutory application dated 23 September 2020 is dismissed. The originating application filed on 18 March 2020 is dismissed. The applicant is to pay the respondent’s costs.

81    At the time this matter was first adjourned, the first respondent sought costs of the case management hearing on 23 July 2020. The applicant did not comply with the Court orders as to the filing of submissions and nor did the applicant seek an extension or amendment of those orders. Rather, close to the date of the hearing the respondent applied for a case management hearing as a result of the applicant’s non-compliance. The costs of that case management hearing are also to be paid by the applicant.

Associate:

Dated:    23 October 2020