Federal Court of Australia

CQI18 v Minister for Home Affairs (No 2) [2021] FCA 1427

ORDERS

THE COURT ORDERS THAT:

1.    The relief sought by the First Respondent in the interlocutory application filed on 19 October 2021 be refused.

2.    The First Respondent pay the Appellant’s costs of and incidental to the appeal, including the hearing on 15 November 2021, but excluding costs arising from the Appellant responding to the First Respondent’s interlocutory application filed on 19 October 2021.

3.    Order 5 of the orders of the Court made on 28 September 2021 be vacated.

4.    Orders 3 and 4 of the orders of the Federal Circuit Court made on 19 November 2020 be set aside and in their place the following be made:

(a)    An order that the time in which a judicial review application may be brought in the Federal Circuit Court be extended to 8 February 2019.

(b)    An order that the First Respondent, whether through her employees, officers and agents or howsoever otherwise be restrained from giving any effect to the recommendation and conclusions of the Second Respondent in any future decision making or conduct concerning the Appellant for the purposes of the Migration Act 1958 (Cth).

(c)    A declaration that in deciding, on 27 September 2012, to recommend to the First Respondent that the Appellant was not a person to whom Australia has protection obligations, the Second Respondent failed to observe the requirements of procedural fairness.

(d)    An order that each party bears its own costs of the proceeding before the Federal Circuit Court.

THE COURT DIRECTS THAT:

1.    If the Appellant applies for interlocutory or final relief restraining his removal from Australia, that application may be accepted for filing provided it comprises an originating application and a concise statement, and no other supporting documents are required.

2.    Any such application is to be expedited and treated as urgent.

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

MORTIMER J:

1    On 28 September 2021, the Court handed down judgment in this proceeding: see CQI18 v Minister for Home Affairs [2021] FCA 1168.

2    A number of orders were made relating to extensions of time and leave to raise new grounds of appeal, and the appeal was allowed. The orders of the Federal Circuit Court were set aside, and in their place it was ordered that the decision of the Independent Merits Reviewer, the second respondent, be set aside. The parties were given an opportunity to attempt to agree on appropriate costs orders and to consider whether to seek any further or different relief from the Court.

3    The parties have not been able to agree on appropriate costs orders and the Minister seeks different relief to that granted by the Court by way of an interlocutory application filed on 19 October 2021. The appellant also seeks further orders relating to his removal.

Costs

4    I will turn first to the question of costs. The Minister accepts there should be an order that the Minister pay the costs of the appeal, but contends the Court should not disturb the costs order in the Minister’s favour made by the Federal Circuit Court.

5    The appellant submits that the usual orders for costs where a party is successful on an appeal in a judicial review proceeding and the orders of the court below are set aside would be that the party secures its costs of the proceeding below and the appeal. The appellant submits the Minister is contending special circumstances exist to depart from the usual orders, and they do not.

6    In my opinion, the Minister is correct that it is not appropriate for the appellant to secure his costs of the proceeding in the Federal Circuit Court.

7    The appellant succeeded on a ground in this appeal which the Court found, having regard to the contemporaneous notes of the appellant’s solicitor, was “clearly raised” in the Federal Circuit Court and so it was not a new ground of appeal. However, on appeal the Court also found (at [65]) that the ground did not “appear to have been developed by counsel at any length before the Federal Circuit Court, appearing instead amongst a large number of arguments made with which his Honour dealt in detail”. The Court found (at [114]) that in those circumstances, “and in a situation where other arguments were given more prominence”, it was “quite understandable… that the Federal Circuit Court may have not adverted to this contention.” It is correct, as the Minister submits, that the Court was therefore careful not to criticise the learned Federal Circuit Court Judge, whose reasons were described as giving “detailed consideration” to the contentions of the appellant that were “prominent in argument”.

8    While it is also correct, as the Minister submits, that the appellant did not adduce the biodata document in evidence before the Federal Circuit Court, I do not agree with the Minister that this adds to the reasons why the appellant should not get his costs in the court below. I accept that the appellant’s legal representatives made diligent efforts to secure that document as soon as they were made aware of its existence. If anything, in my opinion, there were omissions on the Minister’s part in preparing the court book for the hearing before the Federal Circuit Court, because those documents should have been in that court book, especially since the second respondent referred to them in her reasons.

9    The reality is that the appellant did not succeed before the Federal Circuit Court on the grounds which he emphasised before that Court and, indeed, did not press an appeal on many of them. The ground on which he succeeded in this Court, while clearly raised, was not prominent. I do not consider the appropriate exercise of the Court’s wide costs discretion in this appeal would be to compensate the appellant for the costs expended at the Federal Circuit Court.

10    However, I also do not consider the Minister should retain the benefit of the costs order made by the Federal Circuit Court. The Minister has not succeeded in persuading the Court on appeal that the decision of the second respondent was unaffected by error. The Minister failed to put all the documents which were before the second respondent and to which the second respondent referred in her reasons before the Federal Circuit Court. The Minister is not properly described as the successful party in the court below and the appellant was put to additional costs in relation to obtaining and adducing the biodata document.

11    The appropriate order is that the parties bear their own costs of the proceedings in the Federal Circuit Court.

Substantive orders

12    I turn now to the question of the substantive orders. The Minister makes several points about the substantive orders made by the Court on 28 September 2021 and other orders which should be made. She submits:

(a)    There should not be an order setting aside the decision of the second respondent.

(b)    The appropriate relief is a declaration.

(c)    No injunctive relief should be granted.

Setting aside order

13    As to the setting aside order, the Minister contends grant of certiorari was not “on the cards” at the hearing and the appellant did not seek it. If it had been raised, the Minister would have made submissions that such relief was not appropriate and drawn the Court’s attention to what the Minister submits is the binding authority of Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 against the grant of such relief. The Minister relies on the decision of Gilmour J in Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404; 209 FCR 123 (CFMEU) at [10] to the effect that the slip rule in r 39.05(e) of the Federal Court Rules 2011 (Cth) can be invoked in circumstances where there was a failure for the issue of an order setting aside the decision of the second respondent to be raised with the parties before such an order was made. In the CFMEU case, Gilmour J was dealing with a costs order and concluded he was “confident that the order would not have been made”, had the issue been fully addressed during the hearing.

14    The appellant is correct to submit, responsively, that the order setting aside the decision of the second respondent was not a mistake or a slip. The Court intended to grant that relief. It did not grant a writ of certiorari: see generally the discussion about where the Federal Court’s power to grant writs comes from in the Full Court decision of McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 385 ALR 405 at [3], [20], [77] and [187].

15    In Plaintiff M61, a writ of certiorari was in issue because the High Court’s jurisdiction arose under s 75(v) of the Constitution. The Federal Court has power to grant writs, but it also has much wider statutory powers to make orders of such kinds as the Court thinks appropriate: see Federal Court of Australia Act 1976 (Cth) s 23. In the exercise of that power, it can make an order setting aside a decision where that decision affects the rights or interests of a person.

16    The decision or recommendation of the second respondent affects, in my opinion, at least the interests of the appellant. The non-statutory executive process to which the appellant was subjected was the only process offered to him after he was detained on arrival in Australia. It was his pathway to being able to make a claim for protection under Australia’s visa system. It was his only pathway out to regain his freedom and remain in Australia. A negative decision such as the decision made by the second respondent precluded the appellant from advancing any further down that pathway.

17    In Plaintiff M61, certiorari was not granted because, under the traditional principles applicable to that writ, it could only be granted in aid, or it should only have been granted in aid, of the grant of mandamus, and mandamus was not available. The situation is not identical here, as the Court has not purported to grant certiorari and has not purported to remit anything with or without an order of mandamus to the second respondent.

18    However, the Court was informed at the hearing that on 26 October 2021 the appellant’s request for an exercise of the power under s 46A of the Migration Act 1958 (Cth) had been “internally remitted” and will be reassessed by someone within the Department with the appropriate delegation. The Court was also informed that no removal of the appellant will be considered while that process is underway. The process was explained to the Court as an internal non-statutory process for which there are some administrative guidelines.

19    As I noted during the hearing, there is no need for the Court to engage in detailed and perhaps contested legal analysis about whether the set aside order was available and appropriate where the ultimate objective might be secured in a less contested way. In his notice of appeal to this Court, one of the orders sought by the appellant was that the Minister be restrained from relying on the second respondent’s recommendation. Counsel for the Minister appeared to accept relief of that kind could be granted, although he submitted it was not necessary. In my opinion, relief of that kind is available: see Smethurst v Commissioner of Police [2020] HCA 14; 376 ALR 575 at [170]-[183] in the reasons of Gordon J. On balance, I have concluded that injunctive relief is the preferable kind of order. There will be a variation to the Court’s orders of 28 September 2021 to that effect.

20    While I accept that the Minister will respect a declaration made by the Court, I am not confident the subject matter of the declaration is sufficiently clear, especially to a delegate or person charged with conducting a reassessment, that no further or other order should be made. I emphasise, therefore, that the injunction is granted for the sake of clarity, to make it clear that, as the Court explained in its reasons of 28 September 2021, the denial of procedural fairness was critical and material to the way the second respondent assessed the credibility of the appellant, and so in that sense the whole task of the second respondent miscarried. That is why it is appropriate to restrain the Minister, and her employees, officers and agents, from giving any effect to the second respondent’s recommendation. That does not preclude a fresh reviewer having regard to the material that was before the second respondent in the conduct of a fresh review.

21    For these reasons, I accept that there was some purpose in the Minister’s interlocutory application, and it would not be appropriate for that interlocutory application to be dismissed. However, the relief sought in the interlocutory application should be refused. As to the costs of the hearing today, it is somewhat difficult to understand that the appellant’s legal representatives have not been informed about the 26 October 2021 internal remitter, and at least a significant part of today’s hearing has been taken up with refinements made to the parties’ arguments and positions and an adjournment all because of this new development, of which apparently only the Minister, her department and her legal representatives seem to be aware. Accordingly, in my view, the appellant should have his costs of the hearing today, but not the costs associated with responding to the interlocutory application.

Declaratory relief

22    In relation to declaratory relief, both parties sought declaratory relief; the Minister in substitution for other substantive orders, the appellant in the alternative if the present substantive order setting aside the second respondent’s decision is vacated.

23    I consider it is appropriate to grant declaratory relief in addition to the other relief to be granted. As the Minister submitted, such declaratory relief is available in accordance with the High Court’s decision in Plaintiff M61. The Minister’s proposed form of declaration is consistent with Plaintiff M61, although I have altered it slightly.

Interlocutory injunctive relief about removal

24    That leaves the appellant’s submissions that there should be interlocutory relief granted restraining the appellant’s removal from Australia. The Minister opposes the making of any such order. The Minister, as I have noted, informed the Court that an “internal remitter” occurred on 26 October 2021, and reiterated that, in light of that, there is no intention to remove the appellant while that process is underway. In those circumstances, the Minister submitted it is not necessary for the Court to consider granting an injunction. The Minister relies on the reasons in Plaintiff M61 at [8].

25    In the present circumstances, there is no evidence upon which the Court could find it reasonably likely that the appellant was exposed to a risk of imminent removal from Australia at the time of the hearing. There is no evidence he has been served with a removal notice. However, his situation is precarious, and it can be accepted the prospect of imminent removal is one which must cause him great anxiety and place him in a position of tremendous uncertainty. Such effects are very real for people in the appellant’s situation. They are entitled to some assurance of an opportunity to restrain their removal if they contend their removal should lawfully be restrained. What that involves, in my opinion, is some kind of assurance of reasonable access to the Court if that further step is taken. It does not involve the grant of an interlocutory injunction.

26    What I consider is appropriate in the circumstances of this case is to make an order directing the Court’s registry to accept for filing an originating application, supported only by a concise statement, if there is a reasonable basis for the appellant to apprehend his removal is imminent. I also consider it is appropriate to direct the registry to ensure any such application is expedited. Obviously, any such application should only be made if there is indeed a probative basis to apprehend the appellant may be removed from Australia before the final determination of his request under s 46A, including by any court processes available to him.

27    It is extraordinary, to say the least, that a person can be present in Australia for 11 and a half years seeking no more than the ability to engage with Australia’s visa system for the first time and still not be able to do so. At some point, some common humanity and decency should be brought to the administration of the Migration Act in circumstances such as those faced by the appellant. But that is not something the Court can compel. Nevertheless, having had to deal closely with the facts behind the appellant’s current circumstances, I consider it appropriate that that observation be made.

Form of orders

28    In my view, the appropriate way to deal with the present situation is to vacate order 5 of this Court’s orders made in the appeal on 28 September 2021, and make a new set of orders dealing with how the Federal Circuit Court’s orders should be replaced. I also noticed during the hearing today that orders 1 and 2 of the Federal Circuit Court’s orders are of a nature which means they should remain in place and I had erroneously assumed they should also be set aside.

29    Therefore there will be orders setting aside only orders 3 and 4 made by the Federal Circuit Court and, in their place, substituting an injunction, declaratory relief and a new costs order. The extension of time order as made on 28 September 2021 is also necessary and will be included.

Associate:

Dated:    18 November 2021