Federal Court of Australia

EVX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1079

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue, quashing the decision of the Respondent dated 28 June 2021.

2.    A writ of mandamus issue.

3.    The writ of mandamus be returnable within 21 days from its service.

4.    As to the service of the writ of mandamus, it shall be sufficient if the writ is served by email upon the Australian Government Solicitor.

5.    Liberty to apply, including liberty reserved to the parties to make such application, if any, as either may be advised, arising from the time fixed for the return of the writ of mandamus.

6.    The respondent pays the applicant’s costs of and incidental to the application, including reserved costs, if any, to be fixed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    In 1844 in Burgess v Boetefeur [1844] 135 ER 193 (Burgess v Boetefeur), at 202, Tindal CJ stated:

The word “conviction” is undoubtedly verbum æquivocum. It is sometimes used as meaning the verdict of a jury and, at other times, in its more strictly legal sense, for the sentence of the court.

2    In the almost 180 years which have passed since then, the wisdom of Tindal CJ’s observation as to the equivocal quality in the meaning of the word “conviction” has been demonstrated in many a case. This case offers further illustration of that wisdom. It concerns the meaning to afford the word “conviction” as it appears in s 501(10) of the Migration Act 1958 (Cth) (the Act). Before turning to the text of that particular provision it is first necessary to state how the particular controversy concerning the meaning of “conviction” in that subsection has arisen.

3    On 27 July 2011, a delegate of a predecessor to the present Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) administering the Act granted the applicant a Class XA Subclass 866 protection visa under the Act. Put shortly, that flowed from satisfaction that the applicant was a person to whom protection obligations were owed. In other words, there was satisfaction that he was a refugee.

4    On 12 February 2020, after a trial on indictment in the Supreme Court of Queensland before a judge and jury in respect of the alleged offence of murder, the applicant was found guilty of that offence by the jury and consequentially convicted and sentenced by the trial judge to imprisonment for life. He appealed against that conviction. Whilst that appeal was pending a delegate of the Minister, on 18 August 2020, acting under s 501(3A) of the Act, cancelled the applicant’s visa.

5    On 6 November 2020, the Queensland Court of Appeal quashed the applicant’s conviction and in lieu thereof ordered that a verdict of acquittal be entered. The applicant, in response to an invitation issued on behalf of the Minister and as a sequel to the cancellation of his visa, made a representation in accordance with s 501CA that the cancellation of the visa be revoked. That representation was made promptly and as a sequel to the judgment of the Queensland Court of Appeal. It was not, however, until 28 June 2021 that the Honourable Alex Hawke MP, acting personally and for reasons given that day, decided not to revoke the cancellation of the applicant’s visa. In so doing, the Minister acted pursuant to the power conferred by s 501CA(4), which provides:

S 501CA(4) – Cancellation of Visa – revocation of decision under subsection 501(3A) person serving of imprisonment)

…

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

   (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

6    The Minister made his decision the day prior to the date upon which this Court was to hear an application for a mandamus in respect of the making of a decision in respect of the representation which the applicant had made.

7    The applicant did not, as a consequence of the judgment of the Queensland Court of Appeal, enjoy any liberty. Rather, as a sequel to the earlier cancellation of his visa and on the basis that he was an unlawful non-citizen, a view was formed to that effect and he was placed in immigration detention. There he remains.

8    On 12 July 2021, the applicant filed an application for the judicial review of the Minister’s decision not to revoke the cancellation of his visa. This proceeding is being heard on an expedited basis, as requested by the applicant and having regard to the length of time in which he has been in immigration detention and also, for that matter, the overall length of time in which he has been deprived of his liberty as a sequel to an arrest in respect of a charge which has been quashed.

9    In the eyes of our legal system, the applicant has no criminal record whatsoever. He had none before the charge made against him and he has none now as a result of the verdict of acquittal by the Court of Appeal.

10    There is but one ground of review. It is:

1.    The Respondent’s decision was affected by jurisdictional error because he took into account an irrelevant consideration, specifically the Applicant’s quashed conviction for murder on 13 February 2020, in determining not to revoke the mandatory cancellation of the Applicant’s visa.

Particulars

A.    Section 501(10) of the Migration Act 1958 required the Respondent to disregard the Applicant’s conviction of 13 February 2020 in circumstances where that conviction was subsequently quashed by the Queensland Court of Appeal on 6 November 2020, with a verdict of acquittal entered in its place.

B.    In his Statement of Reasons for Decision not to Revoke the Cancellation Decision under s 501(3A) of the Migration Act 1958 (Statement of Reasons), the Respondent repeatedly referred to and placed reliance upon the fact that the Applicant was initially convicted by a jury of the offence (see, eg, paragraphs [36] and [37] of his Statement of Reasons), notwithstanding that that conviction was subsequently quashed and a verdict of acquittal entered in its place, with the result that the original conviction was a prohibited consideration under s 501(10).

11    The starting point for a consideration of s 501(10) must be s 501CA(4)(b)(i). It is common ground that that provision provides the pathway. That provision required the Minister to turn his mind to whether he was satisfied that the applicant passed the character test as defined by s 501. In the circumstances of this case it is not just desirable, but necessary to set out the terms of s 501 of the Act in full:

S 501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate--natural justice applies

(1)    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.

Note:    Character test is defined by subsection (6).

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

Decision of Minister--natural justice does not apply

(3)    The Minister may:

 (a)    refuse to grant a visa to a person; or

 (b)    cancel a visa that has been granted to a person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    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, a State or a Territory.

(3B)    Subsection (3A) does not limit subsections (2) and (3).

(4)    The power under subsection (3) may only be exercised by the Minister personally.

(4A)    If the Minister makes a decision under subsection (3) in relation to a person, the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day the decision was made.

(4B)    Subsection (4A) does not apply if:

(a)    the decision was made on the basis that the Minister reasonably suspects the person does not pass the character test because of the operation of paragraph (6)(a), (e) or (g); or

(b)    the person was the subject of an adverse security assessment, or a qualified security assessment, under the ASIO Act when the decision was made.

(5)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

  (aa)    the person has been convicted of an offence that was committed:

   (i)    while the person was in immigration detention; or

(ii)    during an escape by the person from immigration detention; or

(iii)    after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab)    the person has been convicted of an offence against section 197A; or

   (b)    the Minister reasonably suspects:

(i)    that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii)    that the group, organisation or person has been or is involved in criminal conduct; or

(ba)    the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

(i)    an offence under one or more of sections 233A to 234A (people smuggling);

   (ii)    an offence of trafficking in persons;

(iii)    the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; or

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

   (i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

   (iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

(f)    the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

(i)    the crime of genocide;

(ii)    a crime against humanity;

(iii)    a war crime;

(iv)    a crime involving torture or slavery;

(v)    a crime that is otherwise of serious international concern; or

(g)    the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(h)    an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test.

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

  (a)    the person has been sentenced to death; or

  (b)    the person has been sentenced to imprisonment for life; or

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)    the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

(e)    the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

(f)    the person has:

(i)    been found by a court to not be fit to plead, in relation to an offence; and

(ii)    the court has nonetheless found that on the evidence available the person committed the offence; and

(iii)    as a result, the person has been detained in a facility or institution.

Concurrent sentences

(7A)    For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

Example:    A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.

Periodic detention

(8)    For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.

Residential schemes or programs

(9)    For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:

(a)    a residential drug rehabilitation scheme; or

(b)    a residential program for the mentally ill;

the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.

Pardons etc.

(10)    For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

(a)    the conviction concerned has been quashed or otherwise nullified; or

(b)    both:

(i)    the person has been pardoned in relation to the conviction concerned; and

(ii)    the effect of that pardon is that the person is taken never to have been convicted of the offence.

Conduct amounting to harassment or molestation

(11)    For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:

   (a)    it does not involve violence, or threatened violence, to the person; or

(b)    it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.

Definitions

(12)    In this section:

“court” includes a court martial or similar military tribunal.

“imprisonment” includes any form of punitive detention in a facility or institution.

“sentence” includes any form of determination of the punishment for an offence.

Note 1:    Visa is defined by section 5 and includes, but is not limited to, a protection visa.

Note 2:    For notification of decisions under subsection (1) or (2), see section 501G.

Note 3:    For notification of decisions under subsection (3), see section 501C.

[emphasis in original]

12    In respect of any task of statutory construction, one must begin with the text of the provision read in context and having regard to subject matter, scope and purpose. So doing, as will be seen, does provide an illustration of equivocal qualities in the meaning of the word “conviction” in s 501(10). That feature of that word was amply highlighted in submissions, with respect, ably made on behalf both of the applicant and the Minister.

13    As a matter of ordinary English, “conviction” can, without any strain of language, mean:

The proving or finding a person guilty of an offence with which he is charged before a legal tribunal; legal proof or declaration of guilt; the fact or condition of being convicted; sometimes including the passing of sentence. (Oxford English Dictionary)

14    In that definition one finds all of the nuances of meaning for which the parties contended. No different understanding of the ordinary meaning of the word is introduced by whatever guidance is offered as to Australian idiom by the Macquarie Dictionary. In that work “conviction”, as used as a noun, can mean the fact or state of being convicted, with law, a finding that an accused is guilty of the crime charged, the act of convicting, and the state of being convinced.

15    The applicant’s submission is that the meaning of the word “conviction” in s 501(10) is not, as the Minister submitted, limited to the formal judicial act or order of conviction. Rather, it is submitted on behalf of the applicant that, read in context, “conviction” carries a broader, although as the understanding as revealed in the dictionary definitions admits, nonetheless ordinary meaning.

16    The applicant submits that “conviction” does not just refer to the formal judicial act or order, but embraces the finding of guilt. The applicant is in very good company, indeed, in promoting that “conviction” can carry that particular meaning. In S (an Infant) by Parsons, (his Next Friend) and Recorder of Manchester [1971] AC 481, at 502, Lord Morris of Borth-y-Gest observed:

The word “conviction” may sometimes be used to denote merely a finding of guilt and sometimes to denote such a finding followed by an appropriate order.

…

On a trial on indictment it has been accepted that after arraignment of the full sentence a plea may-in the discretion of the court be withdrawn.

…

… [I]t seems to me to be unnecessary for the present purposes to consider whether Sheraton’s case [1948] 1 KB 223 was rightly decided or to consider whether a conviction in the narrow sense (i.e., a finding of guilt not followed by some appropriate order) is sufficient to support a plea of autrefois acquit.

[emphasis added]

17    In Maxwell v The Queen (1996) 184 CLR 501, at 507, Dawson and McHugh JJ in their joint judgment prior to referring to the statement of Tindal CJ in Burgess v Boetefeur, to which I have referred, stated:

The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.

[footnote references omitted]

18    In Griffiths v The Queen (1977) 137 CLR 293, at 334 – 336, Aickin J voiced similar sentiments as to the equivocality of the word “conviction” and highlighted particular cases where authorities illustrating that equivocality had been referred to.

19    To recognise the equivocality is not, however, to answer the present question. That must be resolved by examining the meaning of the word in the context in which it appears. In that context it must first be said that s 501(10) applies generally in respect of the character test as posited in s 501(6). In this regard, in the formulation in the chapeau to s 501(10) for the purposes of the character test it follows a like formulation to that found in ss 501(7), (7A), (8) and (9) and (11).

20    There was no dispute between the parties that, as part of the pathway from s 501CA(4) to the character test in s 501, each of these, for the purposes of the character test subsections, was picked up. For his part, the Minister referred to what he put were objective criteria, as found in ss 501(6)(aa) and (ab), as supporting a construction of “conviction” confined to a formal record of conviction. It was said that as s 501(10) had come to be amended in its present form, the amendment which led to that and which inserted ss 501(6)(aa) and (ab) was all of the work which the amendment to s 501(10) was intended to do. In other words, there was symmetry between confining “conviction” in s 501(10) to a formal record of conviction and ss 501(6)(aa) and (ab).

21    The difficulty about that particular submission, as was highlighted in submissions made on behalf of the applicant, is that it would be a distinctly odd, if not completely bizarre, construction of the word “conviction” in s 501(10) for the result of that subsection to be that the Minister or a delegate, for the purposes of the character test and in circumstances where an Australian or foreign court had quashed a conviction, to have to disregard that, but not be obliged to disregard the quashing on appeal of a finding of guilt for such an offence. On the other hand, if “conviction” in s 501(10) were to be construed in the way for which the applicant contends no such bizarre result would occur. The outcome of the appeal, whether it quashed a conviction or quashed a finding of guilty, would lead to an obligation to disregard the conviction or, as the case may be, finding of guilt.

22    As was pointed out in submissions on behalf of the applicant, s 501(6)(e) is, on its face, intended to apply not just to any court in Australia, but to any foreign court and the processes of a foreign court may not be in any way, shape or form in relation to a foreign criminal justice system, identical as to formal processes to an Australian court. It is also desirable, unless there are particular contextual indications to the contrary, to approach a statute where the meaning of a word is not defined on the basis that it will carry the same meaning in other provisions where the word is used.

23    In this case support for the construction of “conviction” for which the applicant contends is found by the use of that word in s 506(3)(b) of the Act. That provision permits non-citizens travelling to Australia to be asked questions by an officer about “any criminal convictions in Australia or a foreign country of the non-citizen”. It would also be a distinctly odd construction of “conviction” as used in that provision, odd in the sense that it would be antithetical to the very purpose of making provision for the asking of such a question, to confine the meaning of the word “conviction” just to a formal judicial act or order of conviction as opposed to embracing a finding or verdict of guilty. So the meaning for which the applicant contends has the additional virtue of symmetry as to the meaning of the word “conviction” as between s 501(10) and s 506(3)(b) of the Act.

24    No particular assistance whatsoever in terms of elucidation of meaning is provided by recourse to secondary materials in respect of the amended s 501(10) in its present form.

25    The conclusion then that I reach in respect of the meaning of s 501(10) is that it applies to the formal act or judicial act or order of conviction, but extends to the finding of guilt. It is not necessary in this case to consider whether or not the word so construed would additionally extend to a plea of guilty.

26    Approaching the construction of “conviction” in that way, the next question to be asked is what meaning should be given to “is to be disregarded” in s 501(10)? That admits of a ready answer. Section 501(10) offers a paradigm example of a provision which expressly renders a subject an irrelevant consideration for the purposes of administrative decision making.

27    Many a case can be found, and I was taken to them, which illustrates that a formulation such as “is to” or “to be” carries an imperative quality. For example, in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 (Pape), at [81], and in respect of the words “to be appropriated” in s 81 of the Constitution, French CJ observed:

They are words of constraint.

In other words, they are words which constrain a particular behaviour or conduct. Another example is offered by Bay Simmer Investments v State of New South Wales (2017) 222 LGERA 286, at [77], in which reference is made to Pape:

77    First, the words “are to be” are words which, in this context, are not merely future-looking but impose an obligation: see for example Environment Protection Authority v Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499 at [31]. The same point was made in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at [81] to the effect that the words “to be appropriated” in s 81 of the Commonwealth Constitution impose a requirement that revenues be appropriated in the manner specified by the section. As French CJ there observed, “They are words of constraint.”

28    What follows from this construction of s 501(10) is that, to have regard to the conviction, would be to take into account an irrelevant consideration in the way described notably by Sir Anthony Mason in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39 – 40.

29    The question then becomes whether the Minister has taken into account an irrelevant consideration? Related to that and put in issue by the Minister was, even if he had, whether that was material in the sense described in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA), and latterly in MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 (MZAPC), so as to be productive of jurisdictional error.

30    In his reasons, at [7], the Minister noted that the applicant’s conviction was quashed by the Court of Appeal and that an acquittal verdict was entered. As was correctly conceded on behalf of the applicant, had the Minister confined himself to that noting of a judicial act it could not at all have been put that he had in any way taken into account an irrelevant consideration as forbidden by s 501(10).

31    The Minister did not, however, as his reasons disclose, so confine himself. It is evident from the Minister’s reasons under the heading “Identification of criminal conduct”, at [15] – [38], that the Minister drew inspiration from the recitation of events in the leading judgment in the Court of Appeal. Having so done, the Minister then stated under the sub-heading “Findings relating to criminal behaviour” the following:

Findings relating to previous behaviour

34.    In considering [the applicant’s] past conduct, I am mindful of and have given due weight to the presumption of innocence. I have also noted that, according to his legal representative Mr McComber, [the applicant] has questioned ‘why the Government is treating he and Mr Porter [former Attorney-General] differently, despite both not having been convicted of, nor facing any outstanding charges for, any criminal offence’ Attachment J.2.

35.    However, I am cognisant that the presumption of innocence has limited direct relevance to an administrative law decision noting that substantive and evidential law applicable in criminal proceedings is very different from that applying to the making of an administrative decision. In the context of administrative decision making, I note that a lower threshold than ‘beyond reasonable doubt’ may be applied to support a finding so long as the requisite satisfaction has been reasonably, rationally and logically reached.

36.    In any event, the presumption does not mean that I have to accept that [the applicant] is innocent for the purposes of the present decision, and it is open to me to reach a conclusion inconsistent with that presumption. In spite of the acquittal verdict by the QCA and the absence of any criminal conviction in relation to [the applicant], I have noted that the evidence available in this case was sufficiently strong to result in [the applicant] being indicted and being convicted by a jury of 12 of his peers.

37.    I find that the original conviction is demonstrative of the strength of the case against [the applicant] as viewed by the jury. The circumstances of this case are therefore distinguishable from situations where the alleged criminal conduct has never been considered by a court or jury.

38.    Having regard to the strength of the evidence in this case, while recognising that it was ultimately found by the QCA to be not sufficient to establish beyond reasonable doubt that [the applicant] did commit murder, I am unable to rule out the possibility that [the applicant] did, in fact, commit the murder in question.

32    It is, in my respectful view, clear to the point of demonstration from the last sentence of [36] and the first sentence of [37] that the Minister’s reference in [38] to “the strength of the evidence in this case” is referable to and informed by his taking into account the finding of guilt by the jury.

33    In so doing, the present case, with all respect to the Minister, offers a paradigm example of a transgression of Parliament’s express statement in s 501(10) that a conviction as so construed is to be disregarded. What necessarily follows from that, having regard to the Minister’s reasons and to the only analytical content in relation to the case against the applicant, is that the taking into account of that irrelevant consideration was material in the sense to be understood from SZMTA and MZAPC. The error was jurisdictional.

34    For completeness, it also should be recorded that it is clear from the Minister’s statement as to the material before him that he did not have any of the evidence, be it transcript of oral evidence or otherwise, which had been tendered in the course of the criminal proceedings in the Supreme Court of Queensland. Instead, he has relied upon, as a source of the strength of the case, not his personal analysis of the evidence but rather the findings of the jury. At the risk of repetition, that is something he could not do.

35    What necessarily follows from the foregoing is that the Minister’s decision must be quashed.

36    In the originating application, apart from certiorari, a mandamus was also sought in these terms:

3.    A writ of mandamus issue directing the Respondent to consider and determine, within 14 days after service and according to law, whether to revoke the cancellation of the Applicant’s Class XA Subclass 866 Protection visa under s 501CA of the Migration Act 1958 (Cth).

37    It proved controversial as to whether or not an order in terms of [3] should be made, not in the sense that a writ of mandamus should be issued, but rather whether in so doing a time for its return should be fixed.

38    Section 38(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides:

Section 38 – Practice and procedure

(2)    In so far as the provisions for the time being applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.

39    The Federal Court Rules 2011 (Cth) make no particular provision in respect of the time within which a mandamus should be returned. They are, therefore, to that extent, in my view, insufficient in terms of s 38(2) of the FCA Act. That being so, one looks to the rules of the High Court as in force for the time being mutatis mutandis so far as they are capable of application.

40    As it happens, the High Court Rules 2004 (Cth) make express provision in respect of a writ of mandamus, including by r 25.13.4:

Rule 25.13 – Writ of mandamus

25.13.4    Unless otherwise ordered by the Court or a Justice, a writ of mandamus must be returnable within 14 days from service of the writ.

41    That particular time for return accords exactly, and not by coincidence, with the time specified in the relief claimed as to mandamus by the applicant. There were particular assertions, but no evidence, on behalf of the Minister as to an impossibility of compliance within the time specified in the High Court rule. In my view, the rule has a default provision which admits of an order to the contrary by the court for particular cause. Such cause was found by Steward J, then of this court, in EPU19 v Minister for Home Affairs [2020] FCA 541, at especially [55] in the circumstances of the present pandemic. It appears that, without the need for any formal evidence, his Honour was disposed to recognise the impact that the pandemic was then having in respect of many aspects of Australian life, including public administration.

42    Unfortunately for all of us, those times have not yet passed. That being so and without the need for any formal evidence I consider that I can take judicial notice of the existence of the pandemic and that it has an impact on all aspects of Australian life, including public administration and, for that matter, the exercise of judicial power. As with Steward J I would, even in the absence of any formal evidence led on behalf of the Minister, extend the time for return beyond the default position for which the applicant contends to 21 days.

43    I would not, however, in the absence of any evidence, extend it any further. The reason for that flows from the axiomatic importance which our society places on personal liberty. It is possible, although not, of course, in any way obligatory, that the Minister’s decision or that of one of his delegates in response to the mandamus may be to revoke the visa cancellation. That being so, taken in conjunction with his acquittal, the applicant would be at liberty and restored to the society of his family and friends. I cannot in all good conscience in the exercise of Commonwealth judicial power countenance any greater extension without evidence, having regard to the possibility of the applicant becoming again at liberty. Especially that is so having regard to the very long time indeed in which he has been detained as a consequence initially of being charged and latterly as a consequence of immigration detention.

Associate:    

Dated:    7 September 2021