Federal Court of Australia

FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1571

ORDERS

THE COURT ORDERS THAT:

1.    On or before 4 February 2022, the second respondent is to make a return to the Court in relation to the order in paragraph 3 of the orders made on 7 August 2020 as if a writ of mandamus had issued which required the second respondent to determine the application for review of the decision of the delegate of the first respondent dated 19 August 2019 in accordance with the law, or show cause as to why it has not been done.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    In this proceeding, the applicant made a successful application for judicial review of a decision made by the Administrative Appeals Tribunal in the exercise of its review function under s 500(1)(ba) of the Migration Act 1958 (Cth). The then-named Minister for Home Affairs and the Tribunal were joined as the first and second respondents respectively.

2    On 7 August 2020 the Court granted relief in the following terms (August 2020 orders):

1.    The decision of the second respondent made on 12 November 2019 affirming the decision of the first respondent not to revoke the cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return visa is quashed.

2.    The first respondent, whether by his officers, servants, agents or delegates be restrained from acting on the basis that the decision of the second respondent made on 12 November 2019 was a valid decision.

3.    The second respondent, differently constituted is to determine the applicant’s application for review under s 500 of the Migration Act 1958 (Cth) in accordance with the law.

4.    The first respondent is to pay the applicant’s costs of the originating application.

3    Reasons were published as FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124.

4    The Minister appealed from the August 2020 orders to the Full Court. On 23 August 2021, the Full Court dismissed the appeal with the consequence that the August 2020 orders remained undisturbed:  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 (FAK19 Full Court). On 20 September 2021, the Minister filed an application in the High Court for special leave to appeal from the judgment of the Full Court. The High Court has stood over the Minister’s special leave application pending the delivery of judgment in a special case arising in its original jurisdiction:  Plaintiff M1/2021 v Minister for Home Affairs (Action No M1/2021).

5    Neither the Minister nor the Tribunal applied for a stay of the August 2020 orders pending the outcome of the appeal to the Full Court. Nor has there been any application for a stay pending the outcome of the special leave application. In the absence of a stay, the August 2020 orders remain operative, including the order in paragraph 3 requiring that the Tribunal perform its review function under s 500(1)(ba) of the Migration Act according to law.

6    On the day that the judgment of the Full Court was delivered, the applicant’s solicitor sent an email to the Tribunal agitating for his application for review to be heard and determined. The solicitor repeated that request and also made submissions in connection with the issue at a directions hearing conducted by the Tribunal on 3 November 2021. At the conclusion of that hearing, the Tribunal made orders expressed as follows:

BACKGROUND:  this matter has had a previous ventilation in this Tribunal. The previous decision of this Tribunal was taken on appeal to the Full Court of the Federal Court of Australia (‘Full Court’) which delivered a judgment directing that the matter be remitted to this Tribunal for re-hearing. Following the Full Court’s judgment, the Respondent filed an application for Special Leave in the High Court of Australia (‘High Court’). The Application in the High Court is pending and the High Court’s decision in that matter is not known.

Accordingly, with specific reference to the instant proceeding before this Tribunal, the Tribunal DIRECTS that when the High Court application is finalised (‘Finalisation Date’), if (and only if) it is finalised in a way which preserves Orders 1 and 3 of the judgment of the Federal Court of Australia (per Charlesworth J) made on 7 August 2020:

1.    On or before the date which is seven days after the Finalisation Date, the parties must file Hearing Certificates indicating their availability for a hearing in the period ranging two to four months after the Finalisation Date.

2.    On or before the date which is 14 days after the Finalisation Date, the Respondent must lodge with the Tribunal and give to the Applicant a copy of a Remittal Bundle.

3.    All parties must file with the Tribunal any requests for summons within 14 days after the Finalisation Date.

4.    Both parties shall have immediate access to inspect the documents produced under summons in this matter.

5.    On or before the date which is 28 days after the Finalisation Date, the Applicant must lodge with the Tribunal and give to the Respondent:

a.    any witness statements and other evidence on which the Applicant intends to rely at the hearing; and

b.    a Statement of Facts, Issues and Contentions.

6.    On or before the date which is 42 days after the Finalisation Date, the Respondent must lodge with the Tribunal and give to the Applicant:

a.    any witness statements and other evidence on which the Respondent intends to rely at the hearing; and

b.    a Statement of Facts, Issues and Contentions.

7.    On or before the date which is 49 days after the Finalisation Date, the Applicant must lodge with the Tribunal and give to the Respondent any evidence in reply, or a letter indicating that the Applicant does not intend to do so.

(original emphasis, footnotes omitted)

7    The Tribunal’s orders were not sought by either the applicant or the Minister. As the “background” referred to in the orders makes plain, the Tribunal has determined that it will not conduct the review in accordance with this Court’s orders until the outcome of the Minister’s special leave application (and any subsequent appeal) in the High Court is known. As illuminated below, the Tribunal’s reasoning is that there is a risk that the performance of its review function at this time may transpire to be a “colossal waste of time” because the application for special leave and a subsequent appeal may be decided in the Minister’s favour.

8    By an interlocutory application filed on 18 November 2021, the applicant seeks orders in the following terms:

…

2.    An order requiring the Second Respondent to comply with Order 3 of the Orders made by the Honourable Justice Charlesworth on 7 August 2020 on or before [a date not more than 42 days after the date of this order].

3.    Further or in the alternative:

a.    an order requiring the Second Respondent to make a return to the Court in relation to Order No 3 of the Orders made by the Honourable Justice Charlesworth on 7 August 2020 as if a writ of mandamus had issued which required the Second Respondent to determine the application for review of the decision of the delegate of the First Respondent dated 19 August 2019 in accordance with the law or show cause why it has not been done; and

b.    an order fixing, as the date by which the return referred to in Order 3(a) must be made, [a date not more than 42 days after the date of this order].

4.    Such further or different order(s) as the Court thinks fit, to enforce, and/or require the Second Respondent to comply with, Order No 3 of the Orders made by the Honourable Justice Charlesworth on 7 August 2020.

5.    The First Respondent and/or the Second Respondent are to pay the Applicant’s costs of the application.

9    The Tribunal has been notified of the interlocutory application. It refers to a submitting notice filed in this action on 23 January 2020 in respect of the original application for judicial review and has not actively participated in the hearing.

10    The Minister does not oppose the orders sought on the interlocutory application. The Court nonetheless required Counsel for the applicant and the Minister to make submissions so as to ensure that there is a proper factual and legal basis for granting the relief.

11    I am satisfied that the relief should be granted for the reasons given below.

LEGISLATION

12    Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if the person does not pass the character test because of the operation of (relevantly) s 501(6a) and s 501(7)(c) and the person is serving a sentence of imprisonment, on a full time basis, in a custodial institution for an offence against the Commonwealth, a State or a Territory. If the Minister makes a decision under s 501(3A) to cancel the visa of a person, the Minister must, as soon as practicable, give the person (among other things) a written notice that sets out the decision, and invite the person to make representations to the Minister about revocation of the decision:  s 501CA(3). Section 501CA(4) provides that the Minister may revoke the decision under s 501CA if the conditions prescribed in that section are met. The powers under s 501(3A) and s 501CA(4) may be exercised by a person to whom the Minister’s powers are delegated in accordance with the Migration Act. If a decision to cancel a visa under s 501(3A) is revoked under s 501CA(4), the original cancellation decision is taken not to have been made:  s 501CA(5).

13    Section 500(1)(ba) of the Migration Act provides that an application may be made to the Tribunal for review of a decision of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa. This Court has original jurisdiction to judicially review a decision made by the Tribunal in the exercise of its powers of review under s 500:  Migration Act, s 476A(1)(b).

14    Sections 42A, 42B, 42C and 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) confer powers on the Tribunal to dismiss an application for review, or to determine the review in accordance with an agreement reached by the parties, or to remit matters to an original decision-maker for further consideration. Section 43(1) of the AAT Act provides:

Tribunal’s decision on review

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

15    In the context of a review conducted under s 500(1)(ba) of the Migration Act, the Tribunal may set aside a non-revocation decision made under s 501CA(4) and substitute a decision that the cancellation of a person’s visa may be revoked.

16    Section 500(6L) of the Migration Act provides that if the Tribunal has not made a decision under ss 42A, 42B, 42C or 43 of the AAT Act in relation to the decision under review within the period of 84 days after the day on which the review applicant was notified of the decision under review, the Tribunal is taken, at the end of that period, to affirm the decision under review.

17    For the purposes of the Migration Act, a non-citizen in the migration zone who does not hold a visa is an “unlawful non-citizen”:   s 13 and s 14. Section 189(1) provides:

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

18    In accordance with s 38(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) the practice and procedure of this Court shall be in accordance with the Federal Court Rules 2011 (Cth), subject to any practice and procedure provision made by or under the FCA Act. Section 38(2) of the FCA Act provides:

(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.

19    Rule 25.13.4 of the High Court Rules 2004 (Cth) provides:

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.

FACTS

20    For the most part the facts are uncontentious. The following findings are made by reference to the Court’s record and the following materials:

(1)    affidavit of Mr Mitchell Travis Simmons affirmed on 18 November 2021 (other than [15] to [18] and the first sentence of [19]);

(2)    affidavit of Mr Simmons affirmed on 19 May 2021 in the Full Court proceedings; and

(3)    a transcript of the directions hearing in the Tribunal on 3 November 2021.

21    The applicant is a citizen of Afghanistan. He migrated to Australia in 2011 and was later granted a Class BB subclass 155 Five Year visa under s 65 of the Migration Act. He is a person who cannot pass the character test because of the operation of s 501(6)(a) and s 501(7)(c) of the Migration Act by reason of his criminal offending since arriving in Australia. On 17 May 2018, a delegate of the Minister cancelled the applicant’s visa in the mandatory exercise of the power conferred by s 501(3A) (cancellation decision). Another delegate of the Minister refused to revoke the cancellation decision in the exercise of the power conferred by s 501CA(4) (non-revocation decision). The Tribunal purported to affirm the non-revocation decision (first review decision). The first review decision was the subject of the judicial review application in this action and was set aside by the order in paragraph 1 of the August 2020 orders. The consequence is that the applicant presently has before the Tribunal an application for review lodged on 28 August 2019 which has not been determined.

22    Between 12 August 2020 and 2 November 2020, there was an exchange of correspondence with the Registry of the Tribunal and the legal representatives of the applicant and the Minister, the effect of which is summarised here:

(1)    By his solicitor, the applicant sought a hearing before the Tribunal as soon as possible. His solicitor stated that the applicant was “detained and wishes to be released”.

(2)    A Team Leader within the Registry of the Tribunal notified the applicant’s solicitor that the Tribunal was aware of the order in paragraph 3 of the August 2020 orders and that the matter would be listed for a directions hearing once a Tribunal had been constituted by a member as advised by the President.

(3)    Following the commencement of the Minister’s appeal to the Full Court, the applicant’s solicitor notified the Team Leader of the appeal and stated that it remained his position that in the absence of a stay of the August 2020 orders being ordered by the Court, the Tribunal “must process the application as a matter or priority”. The applicant’s solicitor sought that there be a case management hearing as soon as possible if the Tribunal was minded to take a different approach.

(4)    Having received no response after 21 days, the applicant’s solicitor sought an update. Seven days later (still having received no response), the applicant’s solicitor formally requested a directions hearing on the basis that:

1.    The applicant is detained, and is prevented from applying from parole or alternative forms of detention such as home detention while his visa status is unresolved

2.    The application should otherwise be prioritised on the basis that it is a remittal from the Federal Court, and would otherwise be subject to the 84 day rule

3.    There is a strong basis for suspecting that the applicant’s application should succeed, given that the matter was previously constituted by two members, and the decision of senior member Manetta, being the decision that was not quashed by the Court on the basis of legal error, was that the cancellation decision should be revoked.

4.    The fact that the judicial review application has been appealed by the Minister to the Full Court must not prevent the Tribunal in hearing this matter pursuant to the current orders of the Federal Court unless the Minister has obtained a stay. This has not occurred.

(5)    The Team Leader responded in terms that it was the normal practice of the Tribunal to await the outcome of the Full Court appeal and that the Minister’s view would be sought.

(6)    Two days later, the Minister’s representative notified its position that the Tribunal should await the outcome of the Full Court appeal. As has been mentioned, the Minister has at no time applied for a stay of the August 2020 orders.

(7)    Twenty days later, the Team Leader advised the applicant’s solicitor that the Tribunal was of the same view as the Minister. The Team Leader drew the solicitor’s attention to s 29 of the FCA Act (see below).

(8)    The applicant withdrew his request for a directions hearing.

23    Following the delivery of judgment by the Full Court there was a further exchange of correspondence with the Tribunal, to the following effect:

(1)    On the day that the judgment was delivered, the applicant’s solicitor advised the Tribunal of the outcome and sought to have the matter “now proceed as soon as possible”. The Minister’s solicitor was copied. No response was received.

(2)    Eight days later, the applicant’s solicitor requested that the matter be called on for a directions hearing so that a timetable could be set down. The Minister’s solicitor was copied. A Tribunal officer advised that the parties would be notified of a listing date in due course.

(3)    After more than five weeks had passed, the applicant’s solicitor wrote to the Tribunal advising that the applicant’s parole application was being heard in the following month. The solicitor pointed out that 14 months had passed since the August 2020 orders were made and 50 days had passed since the Full Court’s decision. The solicitor said that there had been no application for a stay of any of the Court’s orders and asked again that the Tribunal be constituted for a hearing as soon as possible.

(4)    On the following day, the applicant’s solicitor received a telephone call from an officer of the Tribunal who advised that the Minister had provided an indication of his position that the matter should proceed to a hearing. The officer enquired of the applicant’s solicitor as to his availability for a directions hearing.

(5)    Sixteen more days passed. The applicant’s solicitor heard nothing. The applicant’s solicitor wrote again to seek an update.

(6)    The Minister’s solicitor sent an email to the Registry of the Tribunal confirming “The Minister’s position is that because a stay has not been sought, the matter should take its place in the queue and be listed on a date convenient to the Tribunal”.

(7)    On 1 November 2021, the parties were advised that there would be a directions hearing on 3 November 2021.

24    It is appropriate to pause at this juncture to make three observations about these exchanges of correspondence.

25    First, the earlier reference by the Team Leader to s 29 of FCA Act was inapt. Section 29 provides that where an appeal to this Court from another Court has been instituted, this Court, or a judge of that other court (not being (inter alia) the then-named Federal Circuit Court of Australia or a court of summary jurisdiction) may order a stay of any proceeding under the judgment appealed from, and suspend the operation of an order to which the appeal relates. The Tribunal is not a court. To the extent that it has the power to suspend its own review functions in circumstances where it has been ordered to perform them, it is not to be found in s 29 of the FCA Act.

26    Second, the applicant’s communication to the effect that he did not press for there to be a directions hearing indicates that he acquiesced to some extent in the outcome of the exchange that occurred with the Tribunal following judgment in this proceeding. He did not make an application of the kind now presently before me, but nor did the Minister apply to this Court for a stay of the August 2020 orders. The applicant’s acquiescence continued until the day that the Full Court delivered its judgment.

27    Third, the eventual notification that there would be a directions hearing on 3 November 2021 was made two months and eight days after the judgment of the Full Court was delivered and the applicant’s renewed request (made on the same day) to have his review application prioritised. The solicitor’s correspondence expressly asserted that delay in conducting the review was related to the applicant’s personal liberty. Some of the solicitor’s correspondence in this period (as well as in the period following in the August 2020 orders) was not afforded the courtesy of any response at all. At the very least the applicant’s solicitor was entitled to receive a prompt acknowledgment that his correspondence had been received. Following delivery of the Full Court’s judgment, his request for (at least) a directions hearing ought to have been attended to as a matter of priority. It is to be expected that it would not usually be practicable for a directions hearing to be convened immediately. However, a delay of more than two months before even a directions hearing was set down is unsatisfactory by any measure, given that one of the purposes of the hearing was to hear the applicant’s concerns about the delay of the review on his personal liberty.

28    The directions hearing was conducted on 3 November 2021 by telephone before the Tribunal constituted of a Senior Member. At that hearing, the applicant (by his solicitor) referred to the delay in the determination of the Minister’s application for special leave to the High Court. The applicant’s solicitor submitted (correctly) that in the absence of a stay, the orders of this Court remained operative.

29    The Minister (by his solicitor) accepted that there had been no application for a stay. He confirmed that the Minister did not invite the Tribunal to put the matter on hold pending the determination of the special leave application. The Minister’s solicitor said that “no particular expedition should be given” in part because the applicant was in correctional custody and not in immigration detention and that his potential release depended upon a favourable parole decision being made. The solicitor continued:

And of course the other relevant circumstance is that if the tribunal was to proceed to make a decision it would turn out to be a nullity in the event that special leave was granted and an appeal was successful.

30    The Minister’s solicitor said that a potential course would be to come back for further directions once it was known if and when the applicant was granted parole. The Minister’s solicitor made other submissions that may be relevant to costs but need not be referred to here.

31    The Tribunal expressed reservations about devoting resources to the matter because the decision could “end up being a nullity” if the special leave application and any appeal were allowed. The Tribunal said that the applicant’s release from correctional custody depended upon an application for parole, the outcome of which was not known. It proposed that there be self-executing orders providing for the filing of submissions, which would come into effect “if the High Court matter is finalised in a way which preserves the order of the Full Court such that the matter, of course, be remitted to the AAT”. The Tribunal suggested that the proposed course would involve a more judicious use of the Tribunal’s resources.

32    The applicant’s solicitor informed the Tribunal that the applicant had no reason to expect that a parole application would be unsuccessful, but that the applicant had avoided applying for parole because he wished to remain in South Australia rather than in an interstate immigration detention facility. The solicitor submitted that the applicant did not wish to remain detained any longer than he had to, that he was due for release in April next year and that delay of the hearing may result in a situation where the applicant ended up in immigration detention because of the Tribunal’s delay. The applicant’s solicitor repeated that there was a court order requiring that the application for review be heard and that the order had not been stayed.

33    The Senior Member then gave oral reasons for proceeding in the way it had proposed, directed to the applicant’s solicitor, in the following terms:

… with the greatest of respect to your client, your client’s choices about where and how he is detained or otherwise incarcerated are ultimately a matter for him. I don’t think that the directions in this particular matter should be configured around his own subjective choices about how he wants to configure his time out of the community. I have a bit more sympathy for your submission if it was the case that your client had been in immigration detention for, say, six months or 12 months, which would, of course, perhaps been a little more unfair on him than things otherwise are currently.

But I must tell you that I’m not of a mind to allocate the resources of the tribunal to meet the convenience or the preferences of your client about how he serves his custodial time or otherwise serves his time outside of the community. I’ve got an obligation to this tribunal to properly apply its resources and not to be looking backwards in a year’s time saying that it was a colossal waste of time to allocate hearing time and space and resources here in circumstances where the outcome of the Full Court’s decision was not known, and I’m not inclined to do that.

That said, I’m also not inclined to deliver a sterile result this morning, such that the outcome is little more than we put it in abeyance and see how things go in the High Court. I think that is a little bit on the sterile side, and your client deserves better than that, Mr Simmons. So subject to any disagreement from either of you, and I’m open to submissions about that, my preference this morning is to proceed to those self-executing orders that I’ve described. So I’ll hear, firstly, from you about that, Mr Simmons. If you’re against it, tell me why. I think you know my views by now. But if you’re against it, well then, so be it. But I think what I’d need to know as well is how we can configure these self-executing directions looking forward.

34    The following additional facts and circumstances are relevant to the applicant’s personal liberty.

35    The applicant is presently detained in a corrections facility situated in Port Augusta in South Australia. He is regularly visited by members of his family who reside in Adelaide.

36    The applicant has been eligible to apply for release on parole since April 2019. The applicant knows that he may apply for parole and understands that any such application would take two to three months to be decided.

37    Should the applicant be granted parole, his present immigration status is such that he would be liable to taken into immigration detention as required by s 189 of the Migration Act, having regard to s 14. The application for review before the Tribunal bears directly on his immigration status in that he is seeking to have the non-revocation decision set aside and substituted with a decision that the cancellation decision be revoked. In that event, the applicant would be a lawful non-citizen and could not lawfully be taken into immigration detention. The cancellation decision would be taken to never have been made and a grant of parole would see the applicant released into the community.

38    The applicant has not applied for parole because, as things presently stand, upon being released from correctional custody he would be immediately detained under Migration Act because the cancellation decision remains operative.

39    On the basis of the affidavit evidence of the applicant’s solicitor (which is not challenged) it is very likely that the applicant will be detained in an immigration detention facility situated outside of South Australia in the event of his release on parole or upon his release at the expiry of his head sentence. He is likely to be detained either in Western Australia, Victoria or on Christmas Island.

40    The applicant’s father is critically ill in a hospital in Adelaide. The applicant has applied to be transferred to a corrections facility closer to the hospital so that a visit to his father can be facilitated. The transfer request has not been finalised.

41    The applicant received notice from the relevant parole authority that his application for parole would be considered on 16 November 2021. Following the Tribunal’s hearing on 3 November 2021, the applicant cancelled his application for parole so that he could resume his attempts to transfer to a corrections facility closer to his critically ill father. The applicant has otherwise preferred to remain in custody in South Australia while his visa status is resolved because if taken into immigration detention he would not be able to receive visits from his family.

42    It does not appear that the Tribunal was informed about the circumstances affecting the applicant’s father or about the visits from his family. I proceed on the basis that the material before the Tribunal was restricted to that conveyed to it in the correspondence and submissions of the applicant’s solicitor. That material plainly demonstrates the applicant was entitled to apply for parole, however, his status as an unlawful non-citizen was rendering the exercise of that entitlement futile because he would not be released into the community even if his application for parole were to be granted.

THE INTERLOCUTORY APPLICATION

43    An appeal to the Full Court does not operate as a stay of execution of the orders under appeal:  Rules, r 36.08(1); High Court Rules, r 42.09. Nor does an application for special leave to the High Court operate as a stay of execution of the orders of the Full Court. As Gageler J said in Obeid v The Queen [2016] HCA 9; 329 ALR 372 (at [12]):

This Court’s power to order a stay of proceedings pending its determination of an application for special leave to appeal is an aspect of its inherent or incidental power to preserve the subject matter of the application. The purpose is not to enable the parties, or either of them, merely to maintain the status quo pending the justiciable controversy between them being brought to practical finality by a decision of this Court whether or not to give further consideration to that controversy. The purpose is, rather, to safeguard against the exercise of this Court’s appellate jurisdiction being rendered in some degree inutile or a source of adverse collateral consequences in the event special leave to appeal to be granted.  …

44    The principles guiding the discretion of a court to grant a stay of its orders (or the orders of another court) have no direct application here. The Court does not have any stay application before it. It has before it an application for relief founded upon an allegation that a party to this proceeding has not complied with an order of the Court that has not been stayed.

45    Whether there is demonstrated non-compliance and whether relief should be granted as a consequence are discrete questions.

46    Had there been an application for a stay of the August 2020 orders, the Court may well have weighed in the balance considerations affecting the resources of the Tribunal, among other things. It may well have afforded considerations of that kind considerable weight. The concerns expressed by the Tribunal about the allocation of its resources are very real. This Court faces the same concerns in respect of its judicial and administrative resources. They are not unlimited and there are ever-increasing pressures on them. I have no reason to doubt that the same pressures affect the considerable workload of the Tribunal. In arranging its own workload this Court invariably has regard to the attitude of the parties and circumstances affecting a party’s personal liberty. However, the Court does not form a part of the executive arm of the government. In most instances it manages its resources absent the order in the nature of mandamus compelling it to do any act or thing.

47    I have concluded that the Tribunal’s obligation to comply with the August 2020 orders did not include a discretion to delay the completion of its review function until the High Court proceeding had been determined for the particular reasons that the Tribunal gave. As explained below, I am satisfied that there is non-compliance with the August 2020 orders.

48    I have also concluded that this Court retains a discretion as to whether or not relief on the interlocutory application should granted. In the exercise of that discretion, the Court may have regard to the resourcing considerations to which the Tribunal referred. In due course I will explain why the concerns raised by the Tribunal, whilst important, are not a sufficient basis for this Court to refuse the relief sought by the applicant in the particular circumstances of this case.

Non-compliance

49    The first review decision has been quashed by paragraph 1 of the August 2020 orders.

50    The Full Court identified errors in the reasoning in FAK19, but nonetheless determined that there was no error in the conclusion that the first review decision was affected by jurisdictional error on one of the argued bases: FAK19 Full Court at [156] and [176] (Kerr and Mortimer JJ, Allsop CJ agreeing at [1]). The jurisdictional error was a failure by the Tribunal to consider the consequences of any breach of Australia’s non-refoulement obligations owed to the applicant “for Australia” rather than for the applicant himself:  FAK19 (at [60]); FAK19 Full Court (at [157]). Their Honours continued:

157    We will describe that as the ‘executive dimension’ of Australia’s non-refoulement obligations. It encompasses the fact that Australia has, solemnly and consciously, determined to assume such obligations under international law, the fact that both the Executive and the Parliament have continued to recognise these obligations, and finally that it can reasonably be assumed there may be a series of consequences for Australia as a nation (including reputational consequences, but not limited to them) if Australia contravenes those obligations by removing a person from Australia in circumstances where those obligations are engaged. The executive dimension is distinct and separate from the factual consequences which might flow for an individual who is removed to circumstances involving the risk of serious harm, in contravention of such obligations.

158    As a part of the executive government, the Tribunal was able to consider this matter, just as a Minister or a delegate might. The Minister did not seriously dispute the proposition that the Tribunal failed expressly to consider this aspect. Instead, the Minister submitted this aspect was not advanced by FAK19 or his representatives as a discrete reason for revocation. That submission should be accepted.

51    As a consequence of those findings, the order quashing the first review decision was not disturbed. Nor was the order in paragraph 3 of the August 2020 orders.

52    The outcome of this application does not depend on the categorisation of the order in paragraph 3 as an order in the nature of mandamus or an order in the nature of a mandatory injunction or otherwise. In plain terms, the order reflects the obligation that arises under the Migration Act as a consequence of the first review decision having been determined by this Court to have no legal effect. As at August 2020, and to the present day, this Court’s orders are binding on the parties. Whether the parties are presently bound to comply with them is not an open question.

53    The order in paragraph 3 of the August 2020 orders did not fix a time for compliance, but that does not mean that a finding of non-compliance cannot be made. Had a writ of mandamus been issued, the Tribunal would have been required (by virtue of r 25.13.4 of the High Court Rules as it applies in this Court) to make a return on the writ within 14 days. Considered in its proper legal context, in the absence of a stay, the order in paragraph 3 required the review to be conducted at the earliest practicable opportunity. It is not necessary to be more specific than that. On any reasonable view, there is non-compliance with the order.

54    The finding of non-compliance is plainly open by reference to the Tribunal’s decision not to conduct a substantive hearing until it was known that the orders of this Court were “preserved” by the High Court. In the present case, the conduct of a hearing is a necessary precondition to the exercise of the Tribunal’s power to determine the review under s 43 of the AAT Act. Plainly, the directions hearing on 3 November 2021 did not constitute the commencement of the review.

55    Unless they are stayed, this Court’s orders should be complied with in accordance with their terms. I do not consider it open to the Tribunal (as a party to this proceeding) to determine for itself that it will not comply until it is known whether this Court’s orders will be “preserved” by the High Court.

56    The temporal uncertainty and associated inconvenience to which the Tribunal referred is not unusual in litigation in which the validity of administrative action is in issue. If there are adverse consequences for a party arising from the temporary uncertainty, then the appropriate course is to apply for a stay of the Court’s orders so that the interests of the affected party may be weighed by the Court against any countervailing considerations.

57    In the course of oral submissions, Counsel for the Minister acknowledged that had the Minister made an application for a stay of the August 2020 orders pending appellate review, and had that application been denied, it would not then have been open to the Tribunal to determine for itself that the performance of its review function could or should be delayed. That acknowledgment only serves to reinforce that the Court’s orders apply in accordance with their terms unless they are stayed. That is the status quo to which Gageler J referred in Obeid. A party cannot unilaterally alter it, even if circumstances exist of a kind that may weigh in favour of the grant of a stay. It would be an odd result if the Tribunal could not defer the review if an unsuccessful stay application had been made, but could defer the review in circumstances where stay no application had been made at all.

Relief

58    As mentioned earlier, the Tribunal’s concerns about the possibility that the exercise of its powers will be a “colossal waste of time” are understandable at a practical level (heightened language aside). Should the High Court grant special leave and allow the Minister’s appeal, then the operative decision of the Tribunal will be the first review decision. If there be a second review decision then, for so long as the High Court proceeding is pending, it might be said that there is temporary uncertainty as to which of the two decisions might operate to determine the applicant’s immigration status.

59    I have already expressed my accordance with the Tribunal’s remarks as to the importance of allocating its resources sensibly, and I take that consideration into account in determining whether relief should be granted and the form that it should take. I do not consider it necessary for the Tribunal to actively participate in the proceeding in order for its interests as an institution having important functions under the Migration Act to be properly considered in the exercise of this Court’s powers. That includes the Court’s implied power to excuse a party’s non-compliance with an order in an appropriate case. This is not that case.

60    The Tribunal’s ongoing non-compliance with the order in paragraph 3 of the August 2020 orders has the very real potential to affect the applicant’s personal liberty in a way that should not be permitted to continue. Whilst this is not a review of the Tribunal’s orders, it is convenient to illustrate that potential by identifying an error in its reasoning.

61    At the time of the Tribunal’s directions hearing, the applicant’s head sentence was due to expire in a little over five months. It is now due to expire in about four months. There is no reason to suppose that an application to be released on parole would be refused in those circumstances.

62    The Tribunal referred to the “choice”, “convenience” and “preferences” of the applicant. It referred to the applicant having subjective choices about “how he wants to configure his time out of the community”. It concluded that the applicant’s “preferences” should not influence how the Tribunal’s resources should best be used. In those expressions, the Tribunal could only be referring to the applicant’s submissions concerning the futility of applying for parole for so long as the cancellation decision rendered him an unlawful non-citizen, the certainty of being taken into immigration detention and the likelihood he would be detained interstate. However, the applicant did not urge the Tribunal to conduct its review functions because it was more convenient for him to be deprived of his personal liberty in one place as opposed to being deprived of his liberty in another. He urged the Tribunal to perform its functions because its delay was depriving him of the prospect of having the cancellation decision set aside by the Tribunal and within a timeframe that may avoid him being taken into immigration detention at all. Whether the applicant should be entitled to his personal liberty once released from prison (including on parole) is a question of utmost importance. He is entitled to a prompt answer to that question.

63    In my view, the Tribunal has considered the risk of there being a waste of its own time and resources in one scenario (the Minister’s case succeeding in the High Court) but did not have any regard to the consequences for the personal liberty of the applicant in the other scenario (the failure of the Minister’s case), properly understood. As things presently stand, the Tribunal will only perform its review function and determine the review under s 43 of the AAT Act “if and only if” (that is, when and only when) the second scenario transpires. There is a real likelihood that by the time the High Court proceeding is concluded more than two and a half years will have passed since the non-revocation decision was made. The timetable set for the preparation of the hearing adds a further 50 days before a substantive hearing would then commence. In the context of the second scenario, that would be an entirely unsatisfactory outcome, given the intention evinced in s 500(6L) of the Migration Act that reviews under s 500 be conducted expeditiously. In addition, the orders of the Tribunal give rise to a real risk that the applicant will be held in correctional custody or immigration detention for longer than he might otherwise be, whether or not the second review is ultimately determined in his favour.

64    In the circumstances described, it is curious to speak of the applicant as having “choices” and “preferences”. The applicant has the benefit of the orders of a superior court, binding on both respondents. In all, four justices of the Court have identified a jurisdictional error affecting the first review decision. The interlocutory application is allowed having due regard to the possibility that the High Court may determine all four justices to have erred in respect of the relevant ground of judicial review discussed earlier in these reasons. I am satisfied that the existence of that possibility is not a sufficient basis to deny the applicant the relief now sought. Should he be released into the community in circumstances that later transpire to be unwarranted, then that is a consequence of the Minister’s decision not to apply for a stay.

65    Relief on the interlocutory application should take the form of the second alternate order, so affording the Tribunal the opportunity to make a return to the Court to explain why the timeframe cannot be complied with, should that be necessary.

66    A 42 day timeframe is appropriate, given the time that has passed since 23 August 2021 when the applicant’s solicitor agitated for a prompt hearing and the Tribunal’s unacceptable delay in responding to that request. The review should now be expedited.

67    The parties should be heard as to costs.

Associate:

Dated:    16 December 2021