Federal Court of Australia
BET20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 6
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The notice of objection to competency be upheld.
2. The appeal be dismissed.
3. The interlocutory application filed on 28 April 2021 be dismissed.
4. The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
YATES J:
Introduction
1 The first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), has filed a notice of objection to the competency of an appeal commenced by the appellant on 20 November 2020.
2 The appeal is expressed to be from the whole of the judgment and orders made by the primary judge in proceeding NSD 313 of 2020 on 23 October 2020: BET20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1539. The orders made by the primary judge on 23 October 2020 refused an adjournment of interlocutory applications dated 7 August 2020 and 23 September 2020; dismissed the two interlocutory applications; and dismissed the appellant’s originating application for review of a migration decision (the originating application), with costs.
3 The originating application concerned the decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), made on 12 February 2020, to affirm a decision of a delegate of the Minister not to revoke the cancellation of the appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act). The appellant’s visa—a Partner (Migrant) (Class BS Subclass 801) visa—had been cancelled pursuant to s 501(3A) of the Migration Act on the basis that he had a substantial criminal record (and therefore did not pass the character test), and was serving a sentence of full-time imprisonment.
4 The originating application sought an order that the decision of the Tribunal be “overturned or dismissed”. It contained one ground of review, obliquely expressed as “Procedural Un-fairness”.
5 The interlocutory application dated 7 August 2020 was for leave to file and serve a document entitled “Further Amended application for review of a migration decision” (the proposed amended originating application). The evident intent of the application was to amend the originating application by, in effect, replacing it with the proposed amended originating application. The primary judge noted, at J[74], that the appellant had confirmed that the single ground of review in the originating application was no longer relied on.
6 Amongst other things, the proposed amended originating application sought orders that three decisions be set aside: (a) the decision by a delegate of the Minister to cancel the appellant’s partner visa under s 501(3A) of the Migration Act; (b) the decision to detain the appellant in immigration detention pursuant to s 189(1) of the Migration Act; and (c) the decision of the Tribunal to affirm the decision not to revoke the cancellation of the appellant’s partner visa. It claimed relief on the basis of five new grounds of review although, at the time of the hearing before the primary judge, the appellant sought to advance only four of those grounds (Grounds 2 to 5).
7 The interlocutory application dated 23 September 2020 was not filed. It was forwarded to the primary judge’s chambers on the morning of the hearing of the interlocutory application dated 7 August 2020. The interlocutory application dated 23 September 2020 sought orders that: the hearing of the interlocutory application dated 7 August 2020 be adjourned; that leave be granted to issue a subpoena; and that leave be granted to further amend the originating application. It foreshadowed that a statement of claim, with allegations of false imprisonment and negligence, not then formulated, would be filed. It also foreshadowed the need for notices under s 78B of the Judiciary Act 1903 (Cth) to be filed and served.
8 Given the history of the proceeding, the primary judge was not satisfied that the hearing listed before her should be adjourned. The primary judge further noted that the interlocutory application dated 23 September 2020 sought to introduce claims that were of a substantially different nature to those that were then before the Court, which additional claims appeared to be incomplete (as the appellant had advanced them), and speculative. Thus, the primary judge was not satisfied that the appellant had provided a proper basis on which the amendments proposed by this interlocutory application could be argued.
9 The primary judge then proceeded to deal with the interlocutory application dated 7 August 2020. Ultimately, her Honour dismissed the application because the grounds of review that were sought to be advanced were, in her view, flawed and without merit, and did not justify the granting of the leave that was sought.
10 Further, given the appellant’s confirmation that he no longer relied on the single ground of review in the originating application, the primary judge also dismissed the originating application, thereby dismissing the proceeding without any determination of its merits.
11 The notice of appeal, filed on 20 November 2020, was amended, pursuant to Order 1 made on 4 March 2021, to add the Tribunal as a party. Apart from this joinder, the notice of appeal remains the same. In these reasons, it is convenient to refer to this document, amended by the joinder of the Tribunal, as the notice of appeal.
12 I discuss the notice of appeal in greater detail below. For present purposes, it is sufficient for me to note that the appeal is expressed to be from the whole of the judgment and orders made by the primary judge. The notice of appeal alleges that the primary judge erred in various ways. In substance, however, the grounds of appeal do no more than advance, for reconsideration, the same grounds of review that the appellant wished to advance in the proceeding below by seeking leave to file and serve the proposed amended originating application—specifically, Grounds 2 to 5 thereof.
13 The Minister’s objection to the competency of the appeal is that, properly read, the notice of appeal seeks to challenge only that part of the primary judge’s judgment and orders that refused leave to amend the originating application in the manner sought by the interlocutory application dated 7 August 2020. That being the case, the Minister submits that the judgment from which the appeal is brought is an interlocutory judgment and that, as such, leave to appeal is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). The Minister submits that, as leave to appeal has not been sought or granted, the appeal is incompetent. Further, the time for seeking leave to appeal has now expired: r 35.13 Federal Court Rules 2011 (Cth) (FCR). Indeed, that time had expired well before the notice of appeal was filed.
14 In written submissions filed on 1 April 2021, the appellant accepted that the judgment appealed from is an interlocutory judgment. He contended, however, that leave to appeal was not required because, in terms of s 24(1C)(a) of the Federal Court Act, the judgment appealed from is an interlocutory judgment “affecting the liberty of an individual”—namely, his liberty—for which leave to appeal is not required.
15 The Minister’s objection to competency was listed for hearing on 8 April 2021. However, shortly before the appointed hearing date, the appellant changed his legal representation by terminating the retainer of counsel who had appeared for the appellant before the primary judge, and who had drafted the notice of appeal and prepared the written submissions filed on 1 April 2020. When the matter was called for hearing, the solicitor instructed by the appellant sought an adjournment of the hearing, which the Minister did not oppose in the circumstances.
16 At that time, I drew the appellant’s attention to what I regarded to be some of the deficiencies in the notice of appeal. I also drew the appellant’s attention to the fact that his response to the Minister’s objection to competency amounted to an “all or nothing proposition” in that, should the Minister’s objection succeed, the appellant had not made or foreshadowed any application for leave to appeal or any application to extend time for making such an application.
17 At a case management hearing on 26 April 2021, I made certain procedural orders and listed the Minister’s objection to competency—and any application for an extension of time and for leave to appeal, and any application to amend the notice of appeal—for hearing on 11 June 2021.
18 When the various applications were heard on 11 June 2021, the appellant, unexpectedly, contended that the judgment appealed from was a final judgment, not an interlocutory judgment—despite counsel for the appellant (who was briefed after the adjournment granted on 8 April 2021) stating that he adopted the appellant’s written submissions filed on 1 April 2021 (which, as I have said, had been prepared by the appellant’s former counsel, and which plainly accepted that the judgment from which the appeal is brought was an interlocutory judgment).
19 This unexpected development resulted in the hearing of 11 June 2021 being stood over part-heard to 30 July 2021, to receive further submissions on that question and to address a further draft amended notice of appeal which the appellant proposed. I say a further draft amended notice of appeal because, pursuant to the procedural orders made on 26 April 2021, the appellant filed an interlocutory application on 28 April 2021 in which he sought, amongst other relief, leave to amend the notice of appeal. In the course of the hearing on 11 June 2021, the appellant handed up a draft amended notice of appeal. At the time, I raised (what I saw to be) certain problems with the relief claimed in that draft. Subsequently, the appellant prepared a further draft amended notice of appeal which he then advanced at the hearing on 30 July 2021. This draft added further grounds of appeal and amended other grounds set out in the draft amended notice of appeal handed up on 11 June 2021.
20 There are now three primary issues before the Court. First, is the judgment from which the appeal is brought an interlocutory judgment for the purposes of s 24(1A) of the Federal Court Act? Secondly, assuming the judgment to be an interlocutory judgment, is leave to appeal required? Thirdly, assuming leave to appeal is required, should leave to appeal be granted?
21 The first issue must be determined by reference to the notice of appeal. Subject to the joinder of the Tribunal as a party, this is the current form of the appeal which is addressed by the Minister’s objection to competency.
22 The second issue proceeds on the basis that the judgment appealed from is an interlocutory judgment. It concerns the question whether the exception in s 24(1C) of the Federal Court Act applies. If the exception applies, leave to appeal is not required, despite the judgment being an interlocutory judgment.
23 The outcome of the first two issues determines the competency of the appeal.
24 As I have noted, the third issue proceeds on the basis that leave to appeal is required. It concerns the related questions of whether time should be extended to bring the application for leave to appeal, and whether leave to appeal should be granted. Those questions should be answered by reference to the further draft amended notice of appeal because that draft identifies the appeal which the appellant wishes to bring. At the hearing on 11 June 2021, the appellant made clear that he does not wish to support the notice of appeal in its current form.
25 Before addressing these issues and the questions they raise, it is necessary to return to the notice of appeal.
The notice of appeal
26 The notice of appeal is prolix and discursive, extending over 12 pages. It contains many background factual propositions, purported statements of law, and other statements that are, at best, submissions. It also contains much material that is utterly irrelevant. Further, it refers, erroneously, to the interlocutory application dated 7 August 2020 as, variously “the further amended application” and “the further amended notice of appeal”.
27 On the whole, the document is both confused and confusing. It does not provide an intelligible framework by which appealable error, if it exists, can be identified readily. It fails to grapple with the fact that its function is to identify error of a kind that would cause this Court, in the exercise of its appellate jurisdiction, to set aside or vary the discretionary judgment of the primary judge on a matter of practice and procedure—namely, whether to allow the appellant, in effect, to replace the originating application as filed with the proposed amended originating application limited to Grounds 2 to 5 thereof.
28 Insofar as it purports to identify error on the part of the primary judge, the notice of appeal proceeds by quoting various statements from the primary judge’s reasons for judgment which are said to have been made in error. In this way, and to this extent, the notice of appeal is a somewhat rambling critique of the primary judge’s reasoning. It may be accepted, of course, that errors in the steps of a process of legal reasoning, as well as errors in findings on subordinate facts, leading to an ultimate conclusion of law, may provide the foundation to support a ground of appeal. But it does not follow that those steps, or those findings, in and of themselves, constitute grounds of appeal: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 234 FCR 549 at [4] – [5].
29 To compound its confusing nature, the notice of appeal claims relief that is entirely inapposite. One would have thought that, given the judgment below, the relief claimed in the notice of appeal would have been directed to an order granting leave to the appellant to file his proposed amended originating application, limited to Grounds 2 to 5. Conspicuously, however, the notice of appeal claims no such relief. Instead it claims final relief—as if, in fact, Grounds 2 to 5 of the proposed amended originating application were the appellant’s grounds of judicial review and that, at a substantive and final hearing of those grounds, the primary judge had, in error, rejected them.
30 Thus, the notice of appeal seeks orders that: (a) the decision by a delegate of the Minister to cancel the appellant’s partner visa under s 501(3A) of the Migration Act; (b) the decision to detain the appellant in immigration detention pursuant to s 189(1) of the Migration Act; and (c) the decision of the Tribunal to affirm the decision not to revoke the cancellation of the appellant’s partner visa, be set aside. (I leave to one side the further problem that, in the present case, this Court does not have jurisdiction, in any event, to review the cancellation decision given the limits on jurisdiction imposed by ss 476(1) and 476A(1) of the Migration Act.) The notice of appeal also seeks orders that the appellant be released from immigration detention forthwith and that the matter be set down for a hearing on damages (including for exemplary and aggravated damages) by reason of the appellant’s alleged unlawful detention.
31 The claiming of this relief misconceives the nature of the appeal before the Court. There has been no determination on the merits of the single ground of review in the originating application, or of Grounds 2 to 5 of the proposed amended originating application which the appellant wishes to pursue.
32 For completeness, I note that the notice of appeal also covers the primary judge’s dismissal of the interlocutory application dated 23 September 2020. However, the notice of appeal does not contain any ground of appeal that addresses that dismissal. For this reason, it is appropriate to focus attention on the interlocutory application dated 7 August 2020.
The objection to competency
An interlocutory judgment?
33 Section 24(1A) of the Federal Court Act provides that an appeal shall not be brought from a judgment of a single Judge exercising the original jurisdiction of the Court that is an interlocutory judgment, unless the Court or a Judge gives leave to appeal.
34 Despite its confusing nature, and the various flaws and shortcomings to which I have briefly referred, the notice of appeal does reveal, unambiguously, that it is directed to contending that the primary judge erred by not granting leave to the appellant to file and serve the proposed amended originating application, limited to Grounds 2 to 5. As I have previously noted, this is the basis of the Minister’s objection to competency. The Minister submits that the orders made by the primary judge on 23 October 2020 did not involve, in legal effect, any final determination of an underlying dispute. It was simply a judgment given on a matter of practice and procedure—quintessentially, a judgment that is interlocutory in character.
35 The Minister submits that the only aspect of the judgment from which the appeal is brought that might possibly have the appearance of being “final” is the primary judge’s dismissal of the originating application by Order 4 made on 23 October 2020. The Minister submits, however, that, as the appellant did not press the only ground of review identified in the originating application, he effectively “consented” to the dismissal of the originating application once the interlocutory applications were dismissed. The Minister thus relies on s 24(1D)(a) of the Federal Court Act which provides that, for the purposes of s 24(1A), a judgment by consent is to be taken as an interlocutory judgment.
36 The Minister submits, further, that the notice of appeal is drafted in such a way that it directly challenges—and, as a matter of substance, only challenges—the dismissal of the interlocutory application dated 7 August 2020. Properly understood, the notice of appeal does not challenge that dismissal derivatively through the making of Order 4 on 23 October 2020: s 24(1E) of the Federal Court Act.
37 In this connection, the Minister relies on the reasoning of the Full Court in Jackson v Health Services Union [2015] FCAFC 188 (Jackson). In that case, notices of objection to competency were filed in appeals which sought to challenge, without prior leave having been granted, certain interlocutory judgments, as well as the primary judgment, in which the appellant was ordered to pay certain sums by way of compensation for contraventions of the Workplace Relations Act 1996 (Cth) and the Fair Work (Registered Organisations) Act 2009 (Cth) and by way of restitution. As in the present case, the notices of appeal were expressed to be “from the whole of the judgment and of the orders” of the primary judge.
38 The Full Court noted that the notices of appeal explicitly and directly challenged the three interlocutory judgments. It also challenged the primary judgment but, in doing so, the grounds of appeal merely pleaded that, because of the errors alleged in the three interlocutory judgments, the hearing in which the primary judgment was given should not have proceeded and that the primary judgment was affected by error accordingly: see at [14].
39 When dealing with the objections to competency based on s 24(1A) of the Federal Court Act, the Full Court reasoned, at [54]:
54 The [respondent] did not dispute that under s 24(1E) of the FCA Act a party could found an appeal from a final judgment on an interlocutory judgment and that, under that provision, the Court could take into account an interlocutory judgment in determining an appeal from a final judgment … However … the notices of appeal here were drafted in a way which directly challenged the relevant interlocutory orders made by the primary judge rather than simply challenging them derivatively through the final judgment. The drafting of the notice of appeal and their reference to appealing not only from the whole of the judgment and orders made on 19 August 2015, but also “further” from the three relevant interlocutory orders and judgments means that leave to appeal was required under s 24(1A) of the FCA Act. The appeals in respect of these interlocutory matters are incompetent because, at the time the notices of appeal were filed, [the appellant] had neither sought nor obtained leave to appeal in respect of them. And, although there was no requirement to obtain leave to appeal from the primary judge’s final orders made on 19 August 2015, the notice of appeal specified no other grounds of appeal in relation to those final orders other than those pleaded in respect of the interlocutory orders. Necessarily, therefore, the appeals are incompetent in their entirety.
(Emphasis added.)
40 The Minister submits that the Full Court’s reasoning in Jackson applies equally to the notice of appeal filed in this case. Although the relief sought in the notice of appeal encompasses the setting aside of the order dismissing the originating application, no ground of appeal is directed to the making of that order. Indeed, the grounds of appeal are entirely silent on that matter. Their direct (and only) concern is Grounds 2 to 5 of the proposed amended originating application and the fact that, according to the appellant, the primary judge erred in not allowing the appellant to file and serve that document.
41 The appellant submits that the judgment from which the appeal is brought is not an interlocutory judgment. The primary judge dismissed the originating application and, because of that dismissal, the appellant contends that, by s 24(1E) of the Federal Court Act, he is entitled to found an appeal, as of right, on the primary judge’s dismissal of the two interlocutory applications.
42 Further, the appellant submits that Jackson is distinguishable because, in that case, the notices of appeal explicitly sought to appeal from the three named interlocutory judgments whereas, in the present case, the notice of appeal makes no explicit reference to the appellant appealing from the primary judge’s dismissal of the interlocutory application dated 7 August 2020 or her dismissal of the interlocutory application dated 23 September 2020. The notice of appeal simply refers to the appeal being brought from the whole of the judgment and orders given and made on 23 October 2020.
43 I am not persuaded that the judgment from which the appeal is brought is anything other than an interlocutory judgment. As I have said, the notice of appeal is unambiguously directed to contending that the primary judge erred by not granting leave to the appellant to file and serve the proposed amended originating application, limited to Grounds 2 to 5. There is no direct challenge in the grounds of appeal to the order dismissing the originating application. The only possible challenge to the making of that order that might be divined from the notice of appeal is that the primary judge erred in dismissing the proceeding because she erred in not granting leave to the appellant to file and serve the proposed amended originating application.
44 The reasoning of the Full Court in Jackson, in relation to the substance of the appeal in that case, applies equally to the present appeal. It is true that, in Jackson, the notices of appeal referred explicitly (but not exclusively) to an appeal being brought from the three interlocutory judgments, but I do not accept that that particular feature of the drafting of the notices of appeal affects the applicability of the Full Court’s reasoning to the present appeal. In determining whether the judgment under appeal in that case was an interlocutory judgment, the Full Court focussed not simply on the form of the notices of appeal, but their substance. As a matter of substance, the direct challenge was to the interlocutory judgments even though the appeals were expressed to be from the whole of the judgment and orders of the primary judge—that is to say, including the primary judgment.
45 So too here. The notice of appeal is drafted in such a way that it directly challenges the primary judge’s dismissal of the interlocutory application dated 7 August 2020. The grounds of appeal reveal no direct challenge to the order dismissing the originating application. Insofar as the notice of appeal seeks an order setting aside the orders made by the primary judge on 23 October 2020, the only possible basis for doing so, on the grounds advanced in the notice of appeal, is that the primary judge erred in not granting leave to the appellant to file and serve the proposed amended originating application.
46 In any event, it is not disputed that, at the hearing before the primary judge, the appellant made clear that he no longer relied on the single ground of review in the originating application. This meant that, if he was not successful in obtaining leave to file and serve the proposed amended originating application, there was no ground of judicial review, which he was prepared to prosecute, that would continue to sustain the originating application. Therefore, having abandoned his only extant ground of judicial review, the appellant had no reasonable prospect of successfully prosecuting the proceeding he had commenced. In those circumstances, it is little wonder that the primary judge then dismissed the originating application so as to bring the proceeding to an end.
47 Although the primary judge did not identify the source of power by which she dismissed the originating application, I cannot help but think that her Honour made that order either as an incident of the Court’s general power to control its own proceedings (s 23 of the Federal Court Act; r 1.32 FCR) or, perhaps, having regard to s 31A(2) of the Federal Court Act (summary dismissal on the basis that an applicant has no reasonable prospect of successfully prosecuting the proceeding).
48 The dismissal order, in practical effect, brought an end to the proceeding, but it did not, in legal effect, finally determine the rights of the parties. There was no substantive determination of the merits of the appellant’s claim. As such, the order was plainly interlocutory in character: Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; 361 ALR 8 at [11]; SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75; 168 FCR 410 at [15] – [23]. In addition, s 24(1D)(b) of the Federal Court Act provides that a judgment given pursuant to s 31A(2) is taken to be an interlocutory judgment for the purposes of s 24(1A): s 24(1D)(b).
49 As I have noted, the Minister submits that the appellant effectively consented to the dismissal of the originating application once his interlocutory applications failed. A judgment by consent is also taken to be an interlocutory judgment for the purposes of s 24(1A): s 24(1D)(a). I do not, however, have any evidence before me of such consent. For this reason, I rest my decision that the judgment from which the appeal is brought is an interlocutory judgment on the principles I have discussed above.
Is leave to appeal required?
50 Section 24(1C)(a) of the Federal Court Act provides that leave to appeal under s 24(1A) is not required from a judgment that is an interlocutory judgment affecting the liberty of an individual.
51 The Minister submits that this exception does not apply to the judgment under appeal. The appellant is currently in immigration detention, by operation of s 189(1) of the Migration Act. Relying on Talacko v Talacko [2010] FCA 239; 183 FCR 297 (Talacko) at [43]; Gao v Fair Work Ombudsman [2013] FCA 754 (Gao) at [18]; SZSNN v Minister for Immigration and Border Protection [2013] FCA 1218; 217 FCR 171 (SZSNN) at [16] – [27]; SZSXM v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1251 (SZSXM) at [17]; and SZSSJ v Minister for Home Affairs [2019] FCA 1149 (SZSSJ) at [23] – [28], the Minister submits that the exception provided by s 24(1C) of the Federal Court Act does not apply because the judgment from which the appeal is brought, and the orders made by the primary judge, did not subject the appellant to direct incarceration or deprivation of liberty.
52 The appellant submits that the exception does apply. He contends that, on its proper construction, s 24(1C)(a) of the Federal Court Act should not be given a confined meaning. Contrary to the authorities cited above, he submits that the words “affecting the liberty of an individual” must include both a “direct” and “indirect” effect on the liberty of the individual. He points to the fact that the proposed amended originating application sought, as part of the relief claimed, a writ of habeas corpus directing the Minister to bring the appellant before the Court and to submit to orders of the Court for his immediate release from immigration detention. He submits that it cannot be seriously suggested that the judgment from which the appeal is brought has not directly or indirectly affected his liberty. Dismissal of the interlocutory application dated 7 August 2020 denied him “a full and proper hearing, to present evidence and arguments, as to whether there was a proper basis for a Writ of Habeas Corpus to sound”, which resulted in his “ongoing detention”.
53 The appellant submits that the Minister has cited authorities “selectively” which are “easily distinguished”.
54 The appellant submits that the decision in Talacko is distinguishable because it concerned an order under s 50 of the Bankruptcy Act 1966 (Cth) temporarily restraining a debtor from travelling overseas. The applicant was not detained and the orders of the Court did not result in any deprivation of liberty.
55 The appellant submits that the decision in Gao is distinguishable because that was a case involving unfair dismissal of employment and concerned an application for an extension of time within which to appeal an order summarily dismissing the principal proceeding. The applicant in that case was not in immigration detention and the summary dismissal of the principal proceeding did not result in any loss of liberty.
56 The appellant submits that the decision SZSNN is distinguishable because, in that case, the appellant, who was in immigration detention, had not sought any direct orders for his release. The appellant also relies on the reservation expressed by Perry J, at [27], that, absent the other authorities referred to by her Honour, she would have considered that there was a real question as to whether or not an indirect affection of the individual’s liberty might suffice to attract the s 24(1C)(a) exception.
57 The appellant submits that the decision in SZSXM is distinguishable because the applicant for leave to appeal in that case was not in immigration detention and the orders made by the court below (which dismissed the applicant’s application for judicial review) did not result in the applicant’s detention.
58 The appellant submits that the decision in SZSSJ is distinguishable because the appellant in that case, which involved an objection to the competency of the appeal, was not in immigration detention and the interlocutory judgment of the court below did not deny the appellant release from detention or require that he be taken into detention.
59 The appellant also relies on Sami v Commonwealth of Australia [2018] FCA 1991 (Sami). In that case, an application for leave to appeal was brought from a judgment which, under s 31A of the Federal Court Act, summarily dismissed judicial review proceedings brought by the applicant, Mr Sami. White J reasoned that Mr Sami did not require leave to appeal. He was entitled to appeal as of right, although he required an extension of time to file a notice of appeal. As events transpired, White J was not persuaded that time should be extended.
60 In concluding that leave to appeal was not required, White J found that the exception in s 24(1C)(a) applied. His Honour noted the decisions in Talacko and SZSNN but reasoned that it was more natural to understand the term “affecting the liberty of an individual” as meaning something like “concerning the liberty of an individual”: at [37]. He found that the summary dismissal of Mr Sami’s judicial review proceeding—in which Mr Sami alleged that he was being held in immigration detention unlawfully and claimed (amongst other relief) an order for his release, an order restraining his deportation from Australia, and an award of damages for unlawful detention and negligence—answered that description.
61 I am not persuaded that the interlocutory judgment from which the appeal is brought is one affecting the liberty of an individual under s 24(1C)(a) of the Federal Court Act. It follows that the appellant has no appeal as of right, and that leave to appeal is required.
62 As I have previously recorded, the only relief sought in the originating application was that the decision of the Tribunal (which was to affirm a decision of the Minister’s delegate not to revoke the cancellation of the appellant’s visa) be “overturned or dismissed”. The primary judge’s dismissal of the originating application meant that the appellant’s claim for that relief could not be obtained by that proceeding. In no true sense could it be said that the dismissal was an interlocutory judgment affecting the liberty of an individual.
63 As to the primary judge’s dismissal of the interlocutory application dated 7 August 2020 and the interlocutory application dated 23 September 2020, the most that can be said on that score is that dismissal of the interlocutory application dated 7 August 2020 meant that the appellant was not given leave to file and serve the proposed amended originating application that, amongst other things, sought relief (not previously sought) that he be released from immigration detention and that he be awarded damages for wrongful detention. However, a judgment whose outcome is to refuse leave to file and serve an amending document in an existing proceeding—a refusal, in effect, to make a pleading amendment—is not, in any true sense, an interlocutory judgment affecting the liberty of an individual. The contrary conclusion could only be reached by contrived reasoning.
64 The weight of authority on this question is represented by the cases on which the Minister relies. Although the appellant points to some differences in the facts of those cases, compared with the facts of the present case, these differences do not displace or render inapplicable the legal principle for which they stand in relation to the application of s 24(1C)(a). The interlocutory judgment must be one affecting the liberty of an individual in the sense of subjecting the individual to direct incarceration or other total deprivation of his or her physical liberty. I propose to follow those cases. The interlocutory judgment in the present case is not of that kind.
65 I am not deflected from that conclusion by the decision in Sami. The broader interpretation given to s 24(1C)(a) in that case is based on, effectively, substituting the word “concerning” for the word “affecting” where it appears in the provision. In my respectful view, this involves an impermissible re-writing of the exception. The two words have different meanings.
Conclusion
66 Given the conclusions I have reached, I am satisfied that the appeal is not competent. The consequence is that the appeal is dismissed: r 36.72(5) FCR.
Leave to appeal
The approach to granting leave to appeal
67 Pursuant to the orders made on 26 April 2021, the appellant filed, on 28 April 2021, an interlocutory application seeking, amongst other relief, orders that the time for filing an application seeking leave to appeal from the orders made by the primary judge on 23 October 2020 be enlarged and that leave be granted to appeal from those orders.
68 The Minister opposes the granting of this relief solely on the basis that the proposed appeal, as reflected in the further draft amended notice of appeal, lacks merit.
69 Generally speaking, an applicant for leave to appeal must demonstrate that the decision in question is attended by sufficient doubt to warrant its reconsideration by a Full Court and that the applicant would suffer substantial prejudice if leave to appeal were to be refused (supposing the decision in question to be wrong).
70 The sufficiency of doubt and the question of substantial injustice should not be isolated. They bear upon each other when exercising the discretion whether to grant leave to appeal: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 – 399. Moreover, the two limbs are generally regarded as being cumulative, such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [5]; Melbourne City Investments Pty Ltd v Treasury Estates Ltd [2017] FCAFC 98; 252 FCR 1 (MCI) at [38]; Nationwide News Pty Ltd v Rush [2018] FCAFC 70 at [3].
71 Two further matters should be noted. First, the relevant decision in this case was one pertaining to practice and procedure—whether leave should be granted to file and serve the proposed amended originating application. It is well-established that appellate courts should exercise particular caution in reviewing decisions of that nature. In MCI, at [41], the Full Court referred to the importance of keeping a short leash on appeals relating to questions of practice or procedure.
72 Secondly, the primary judge’s decision involved an exercise of discretion. Thus, the appellant must show error in the exercise of discretion of the type described in House v The King [1936] HCA 40; 55 CLR 499 at 504 – 505. In MCI, the Full Court observed, at [42], that a party who seeks leave to appeal in relation to an exercise of discretion on a matter of practice and procedure faces a “formidable task” and has a “heavy burden”.
The grounds of appeal
73 The grounds of appeal on which the appellant wishes to rely are expressed in the further draft amended notice of appeal as follows:
1. The primary judge erred in refusing leave to the applicant to amend his application.
2. The primary Judge erred in finding that the court would not have jurisdiction to review the lawfulness of the decision to detain the applicant under s 189 of the Migration Act.
3. The primary Judge erred in finding that the applicant had not identified an arguable basis on which to grant leave to amend.
3a. the primary Judge erred in finding that ground 3 in the proposed amended originating application did not raise an arguable case that the decision to detain the applicant under s189 of the Migration Act was in excess of power.
3b. the primary Judge erred in finding that ground 4 in the proposed amended originating application did not raise an arguable case that the decision to detain the applicant under s189 of the Migration Act was in excess of power.
3c. the primary Judge erred in finding that ground 5 in the proposed amended originating application did not raise an arguable case that the decision to detain the applicant under s189 of the Migration Act was in excess of power.
4. The primary Judge should have found that it was in the interest of justice to allow the originating application to be amended so as to include the final relief sought in grounds 1(b) and 2 to 6 on the basis of grounds 3 and 5 of the proposed amended originating application as there was an arguable basis to challenge the decision to detain the applicant when he was released from custody on probation as it was arguable that the detention of the person on such conditional release is an abrogation or curtailment of the exercise of Judicial power and an undermining of the institutional integrity of the District Court of New South Wales and so offended the principle stated by the High Court in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1997) 189 CLR 51.
5. The primary Judge should have found that that it was in the interest of justice to allow the originating application to be amended so as to include the final relief sought in grounds 1(b) and 2 to 6 on the basis of grounds 4 and 5 of the proposed amended originating application as there was an arguable basis to challenge the decision to detain the applicant when he was released from custody on probation as it was arguable that the detention of the person on such conditional release is a contravention of the Constitutional right of the State to provide for how its criminal laws are to be enforced contrary to ss 106 and 107 of the Constitution.
6. The primary Judge should have found that it was in the interest of justice to allow the originating application to be amended so as to include the final relief sought in grounds 1(c) and 2 and 3 on the basis a further ground being that the decision of the Tribunal to affirm the decision of the delegate not to revoke the cancellation of the applicant’s visa was manifestly unjust and infected by a misunderstanding of the applicable law and in particular s500 (6H) of the Migration Act.
74 The references in these proposed grounds to “grounds 1(b) and 2 to 6 … of the proposed amended originating application” and to “grounds 1(c) and 2 and 3” are, in fact, to the relief claimed in the proposed amended originating application:
Final relief
1. Relief in the nature of a Declaration that the following decisions, together the “exercise of power by officers of the executive government of the Commonwealth” were made contrary to law.
…
(b) The decision by the delegate to the Minister to detain the applicant at the Villawood Immigration Detention Centre, made on 13 June 2019 pursuant to section 189(1) of the Migration Act 1958 (Cth); and
(c) The decision by the Tribunal to uphold the decision by the delegate of the Minister not to revoke the cancellation of the applicant’s partner visa made on 12 February 2020 pursuant to section 501(CA) of the Migration Act 1958 (Cth).
2. Relief in the nature of a Writ of Certiorari, bringing the decisions at [1], into this Court to be quashed.
3. Relief in the nature of a Writ of Prohibition, restraining the Minister or the employees, officers, delegates or agents of the Minister from acting upon or giving effect to the decisions at [1].
4. Relief in the nature of a Writ of Habeas Corpus or a Writ of Mandatory Mandamus directing the Minister to bring the applicant before the Court and to submit to the further orders of the Court for the immediate release of the applicant from immigration detention.
5. Relief in the nature of an order for Damages, for the unlawful detention of the applicant from 13 June 2019 until the current day, on an aggravated and exemplary basis.
6. Relief in the nature of an order for Cost, directing the Minister pay the applicant’s costs of these proceedings as agreed or assessed.
75 Ground 3 of the proposed amended originating application was:
The exercise of power by the officers of the Commonwealth, abrogated and curtailed the sentence and parole orders of the District Court of NSW in violation of the separation of powers doctrine.
76 Ground 4 of the proposed amended originating application was:
The exercise of power by the officers of the Commonwealth abrogated and curtailed the sentence and parole orders of the District Court of NSW in violation of the principle of State immunity pursuant to section 106 and 107 of the Cth Constitution.
77 Ground 5 of the proposed amended originating application was simply expressed as:
Unlawful detention.
78 As filed, the originating application only sought relief directed to the Tribunal’s decision to affirm the decision of the Minister’s delegate under s 501CA(4) of the Migration Act not to revoke the cancellation of the appellant’s visa. The appellant sought to broaden his case through the proposed amended originating application, which also sought relief in respect of the cancellation decision made under s 501(3A) of the Migration Act, and the appellant’s detention under s 189(1) of the Migration Act. The appellant characterised the latter as a decision:
… by the delegate to the Minister to detain the applicant at the Villawood Immigration Detention Centre, made on 13 June 2019 pursuant to section 189(1) of the Migration Act 1958 (Cth) …
(Emphasis added.)
79 The primary judge remarked upon this broadening. She noted that, in the new grounds of review sought to be introduced by the proposed amended originating application, the appellant did not distinguish between these decisions: J[40]. She also noted that, subject to an exception that was not relevant to the case before her, the Court did not have jurisdiction to review the cancellation decision made under s 501(3A) of the Migration Act, given the operation of ss 476(1) and 476A(1)(a) thereof: J[41] – [42]. That conclusion was undoubtedly correct and, in the present application, the appellant does not contend otherwise.
80 The primary judge also remarked that the appellant’s reference, in the proposed amended originating application, to his detention under s 189(1) as a decision “by the delegate to the Minister” was flawed: J[44]. This was because the appellant’s detention under s 189(1) was the inevitable result of the cancellation decision under s 501(3A) and the operation of s 189(1) itself. Her Honour’s point (and only point) was that it was inapposite for the appellant to characterise his detention under s 189(1) as being a decision made “by the delegate to the Minister” or, indeed, by the Minister himself: see also J[72].
81 The further draft amended notice of appeal no longer seeks to challenge the validity of the cancellation decision under s 501(3A). The challenge to the non-revocation decision under s 501CA(4) is limited to a single ground, which was not in the originating application and was not even raised before the primary judge when the interlocutory application dated 7 August 2020 was argued.
82 It can be seen, therefore, that the draft further amended notice of appeal seeks to raise, by amendment, a case for judicial review that is not only a considerable departure from the case commenced by the originating application, but also a case with a particular focus on s 189(1) of the Migration Act, which the proposed amended originating application did not have when the interlocutory application dated 7 August 2020 was argued before the primary judge.
The primary judge’s reasons
83 The primary judge considered Grounds 3 and 4 together (with Ground 2 of the proposed amended originating application, which is no longer pursued).
84 The appellant has a substantial and lengthy criminal history in Australia, commencing on 11 July 2012. It is not necessary to summarise all that history. It is sufficient to note that, on 23 May 2018, the appellant was convicted and sentenced to an aggregate term of 20 months imprisonment for various offences, with a non-parole period of 15 months. These convictions and sentences were confirmed on appeal, except for the starting date of the sentences.
85 On 19 September 2018, while the appellant was serving this imprisonment, a delegate of the Minister mandatorily cancelled the appellant’s visa under s 501(3A) of the Migration Act.
86 The appellant was eligible for conditional release from custody on 13 June 2019. On that day, he was released from prison. However, he was, thereupon, detained in immigration detention pursuant to s 189(1) of the Migration Act, which provides that, 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.
87 As I have noted, before the primary judge, the appellant contended that the cancellation decision, the decision to detain him under s 189(1) of the Migration Act, and the Tribunal’s subsequent affirmation decision not to revoke the visa cancellation (together, the decisions) were not enlivened until after his “conditional release on parole and period of supervision and rehabilitation had been completed and [he] was discharged from the supervision of the District Court of NSW”. This was the asserted jurisdictional error on which Ground 3 of the proposed amended originating application was based. The appellant contended that, as a consequence, the decisions “abrogated, interfered or dissolved the sentence and parole orders of the District Court of NSW in violation of the separations of powers”: J[48]
88 The appellant also contended that the decisions amounted to a reversal of the District Court’s orders and curtailed the independence of the District Court and the New South Wales State Parole Authority in violation of ss 106 and 107 of the Constitution: J[48]. This was the asserted jurisdictional error on which Ground 4 of the proposed amended originating application was based.
89 The primary judge found that the appellant’s contentions failed to address matters that were fundamental to his amendment application: J[49].
90 First, the primary judge found that the appellant’s submissions did not address the terms of the Migration Act—in particular, the provisions that were central to the cancellation and non-revocation decisions. The appellant’s contention that the decisions were not enlivened or operative until after his conditional release on parole, and his period of supervision and rehabilitation had been completed (resulting in his discharge from the supervision of the District Court), failed to account for the operation of s 501(3A) of the Migration Act, which provided, expressly, for a cancellation decision, under that provision, to be operative while a person is serving a sentence of imprisonment in a custodial institution: J[51].
91 Secondly, the primary judge found that the types of arguments raised by the appellant were, in effect, the same arguments rejected by the Full Court in Raibevu v Minister for Home Affairs [2020] FCAFC 35 (Raibevu): J[53] – [57].
92 In Raibevu, the Full Court considered a proposed ground of appeal which included the following elements: the decision not to revoke, under s 501CA(4) of the Migration Act, the mandatory cancellation of Mr Raibevu’s visa under s 501(3A) thereof, was affected by jurisdictional error because the cancellation of the visa violated the orders of the District Court that Mr Raibevu serve a lengthy parole period; Mr Raibevu was denied the opportunity of further supervision and rehabilitation during the parole period; the executive decision to cancel the visa, and the executive decision not to revoke the cancellation decision, interfered with the administration of justice that Mr Raibevu serve a lengthy parole period, and violated the separation of powers doctrine under Chapter III of the Constitution.
93 As to this proposed ground, the Full Court said, at [110]:
110 The content of the argument in connection with the Constitution was diffuse and unclear. We take it has having these two elements:
(1) The Minister’s decision under s 501CA(4) had the effect of undermining the institutional integrity of the District Court of New South Wales and so offended the principle stated by the High Court in Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51. This was because that Court had examined the prospects of Mr Raibevu’s rehabilitation and had concluded that he should be released upon the expiry of the non-parole period. The effect of the Minister’s decision to put Mr Raibevu in immigration detention was to frustrate the carefully considered conclusion of the District Court that the administration of justice required the appellant’s release into the community in the following month.
(2) If the Minister’s decision under s 501CA(4) did not interfere with the institutional integrity of the District Court, then it instead had the effect of frustrating the exercise of the Parole Board’s power to order Mr Raibevu’s release. The Parole Board was to be seen as a key component in the administration of criminal justice in New South Wales. The administration of criminal justice was a core responsibility of the States. An intrusion into such a core area was invalid to the extent that it destroyed or curtailed the continued existence of the States or their capacity to function: Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
94 The Full Court concluded that both arguments suffered from the difficulty that it was the decision under s 501(3A) of the Migration Act that brought about Mr Raibevu’s detention in immigration detention under s 189(1), not the decision under s 501CA(4). The only decision under challenge in Raibevu was the decision under s 501CA(4). The Full Court reasoned that this had unavoidable consequences for the constitutional challenges:
114 This has unavoidable consequences for the constitutional challenges. The only power exercised by the Minister was the power under s 501CA(4). Even if the constitutional challenge to those provisions were sound, it would only mean that s 501CA(4) was invalid to the extent that it authorised the Minister not to revoke the cancellation. A finding to that effect would leave the delegate’s cancellation decision in place because no challenge has been brought to it; i.e. the visa would remain cancelled even if this Court upheld the challenge to s 501CA(4).
115 Such an outcome would have no utility. To put it another way, Mr Raibevu’s constitutional challenge is incapable of yielding any relief.
95 Proceeding on the principle that a court should not embark upon the determination of the validity of an Act of Parliament unless it is necessary to do so, the Full Court did not consider the proposed ground further; it would be pointless to do so, absent a challenge to the decision under s 501(3A) of the Migration Act.
96 Moreover, even if Mr Raibevu’s arguments could be directed to the decision under s 501CA(4) of the Migration Act, the Full Court concluded that they would confront other realities:
120 First, the order sentencing Mr Raibevu to imprisonment did not require that he be released on the expiry of the non-parole period: Knight v Victoria (2017) 261 CLR 306 at [8] and [25]. Rather, upon the expiration of the non-parole period, Mr Raibevu was eligible to apply for conditional release: Crimes (Administration of Sentences) Act, s 126. The question of whether Mr Raibevu might be released on parole (and, if so, on what conditions) was not a question arising before any court, let alone a court vested with federal jurisdiction. It was a matter for the Executive government of the State of New South Wales. No issue arises under Ch III of the Constitution.
121 Second, to the extent that Mr Raibevu relied on the principles stated in Melbourne Corporation, the submissions did not identify an arguable case that s 501CA(4) was a law of general application which operated to destroy or curtail the continued existence of the State of New South Wales or its capacity to function as a State.
97 For completeness, I note that an application for special leave to appeal from the Full Court’s decision was dismissed with costs on 15 April 2021 on the basis that each ground had insufficient prospects of success to merit the grant of special leave: Raibevu v Minister for Home Affairs [2021] HCASL 83.
98 In the present case, the primary judge observed that the appellant had not only ignored the reasoning and conclusions in Raibevu but also the reasoning and conclusions in Knight v Victoria [2017] HCA 29; 261 CLR 306. The primary judge noted, in particular, that the appellant’s submissions proceeded on the erroneous premise that there is a fundamental right “to conditional release on parole and rehabilitation of non-citizens”. The primary judge observed that the decision in Knight makes clear that such a right does not exist. Her Honour also observed that the appellant’s submissions proceeded on assertions as to the nature of the orders of the District Court, parole, and the Parole Board, which are contrary to the decision in Knight: J[58].
99 After referring to Knight and Crump v New South Wales [2012] HCA 20; 247 CLR 1 (Crump), the primary judge said, at J[64]:
64 Those decisions reflect that the premise underlying the applicant’s submission is incorrect as to the consequence of the sentence imposed on him, the nature of parole, who bears the responsibility for the prisoner after sentence, and the status of the Parole Board. It reflects that the underlying proposition that the applicant has a fundamental right to conditional parole is incorrect (ground 2), as is the submission that the visa cancellation interfered with or impaired the judicial power of the State court (grounds 3 and 4). Those propositions underpin each of these three amended grounds.
100 At J[67] – [71], the primary judge held:
67 The applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act, with the validity of that provision not being challenged. As a result, on the applicant being released from prison he was an unlawful non-citizen and was therefore required to be detained pursuant to s 189 of the Migration Act.
68 The decisions did not abrogate or curtail or dissolve or reverse the applicant’s “sentence and parole orders of the District Court of NSW”, which is the premise underpinning each proposed ground of review. The applicant has not identified any arguable case in support of that premise, and that the decisions had that effect in violation of the principle of legality (ground two), Ch III of the Constitution (ground three), or the principle of State immunity (ground four).
69 More particularly, as explained above, the only decision under review within this Court’s jurisdiction in this case is the decision of the Tribunal affirming a decision of the delegate not to revoke the cancellation of the applicant’s visa under s 501CA(4) (a provision not addressed by the applicant). That decision did not have the effect contended for in violation of the principle of legality, Ch III of the Constitution or State immunity. The applicant has not identified any arguable case that it did so. Moreover, a challenge to the Tribunal’s decision would still leave the delegate’s cancellation in place: Raibevu at [114], [118].
70 As the Court in Raibevu concluded, no issue under Ch III of the Constitution arises. The applicant has not identified any arguable case that the decision(s) raise any issue of state immunity pursuant to s 106 and s 107 of the Constitution.
71 In addition to the issues raised above at [40]-[46], these grounds, as argued, are without merit and do not properly justify the grant of leave.
101 As to Ground 5 of the proposed amended originating application (which alleges that the appellant was detained unlawfully), the primary judge noted that, as pleaded, the ground was dependent on the preceding grounds, which her Honour considered to be without merit. The primary judge also noted that Ground 5 proceeded on the misapprehension that the detention of the appellant was the result of a decision by the Minister or a delegate of the Minister, whereas the detention of the appellant was by the Commonwealth, pursuant to the Migration Act, as the inevitable consequence of the cancellation of his visa under s 501(3A): J[72].
The appellant’s submissions
102 The appellant relies on written submissions filed on 28 April 2021, supplemented by further submissions filed on 18 June 2020. The appellant, by his counsel, also advanced oral submissions on 11 June 2021 and 30 July 2021. I do not understand the appellant’s oral submissions to be at any variance with his written submissions.
103 By his written submissions filed on 28 April 2021, the appellant submits that the Court had (and has) jurisdiction under s 476A(1)(b) of the Migration Act with respect to the decision of the Tribunal not to revoke the decision cancelling his visa. The amendments he sought to make, through the proposed amended originating application, included relief in the nature of a writ of habeas corpus and damages, on the basis that he had not been validly detained under s 189(1) of the Migration Act. He submits that the primary judge erroneously held that there was no utility in such a claim being advanced through the proposed amended originating application because his detention under s 189(1) was the inevitable consequence of the cancellation of his visa.
104 I pause at this juncture to note that, in fact, the primary judge did not make a finding in these terms. At J[44], the primary judge remarked, as I have noted, that the appellant’s reference, in the proposed amended originating application, to his detention under s 189(1) as a decision “by the delegate to the Minister”, was flawed. At J[72], the primary judge returned to that point in the context of considering Ground 5 of the proposed amended originating application. Her Honour observed that there was no proper basis for the appellant to assert that there was a “decision of the delegate or the Minister to detain the applicant”. It is clear, however, that the primary judge did not consider that the Court had jurisdiction to review the appellant’s detention under s 189(1) of the Migration Act: J[45].
105 As to this, the appellant relies on the judgment in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 (McHugh), which was given by the Full Court after the primary judge’s judgment in the present case.
106 By reference to McHugh, the appellant submits that detention under s 189(1) is the result of a migration decision and that, the Court’s jurisdiction having been enlivened, in the present case, by s 476A(1)(b) of the Migration Act in relation to the decision of the Tribunal not to revoke the decision cancelling his visa, the claim of false imprisonment he wished (and wishes) to pursue is part of the matter before the Court, and within jurisdiction, by dint of s 39B(1A)(c) of the Judiciary Act 1903 (Cth), and s 75(iii) of the Constitution by s 32(1) of the Federal Court Act. (As to the latter, I note, however, that the Commonwealth is not presently a party to the proceeding). He submits, therefore, that the primary judge erred by concluding that the Court did not have jurisdiction to consider the legality of the detention decision.
107 The appellant also submits that the primary judge erred by concluding that there was not a proper basis to allege that there was a decision by the Minister to detain him. He argues that there could be no doubt that the person who detained him was an “officer” as defined in s 5 of the Migration Act and that, in those circumstances, the appropriate respondent against whom to challenge the detention decision is the Minister.
108 Having reached this point, the appellant contends that “the substance of the argument” is that s 189 should be read down, by s 15A of the Acts Interpretation Act 1901 (Cth), so as not to authorise the immigration detention of a person who is on conditional release pursuant to a parole order. This is because, while on conditional release, the person is still serving a sentence imposed by a court (in his case, the District Court of New South Wales pursuant to s 132 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Crimes (Administration of Sentences Act)). He contends, as he did before the primary judge, that his detention while on conditional release is an abrogation or curtailment of the exercise of judicial power and an undermining of the institutional integrity of the District Court of New South Wales. Thus, s 189 should be read down so as not to exceed legislative power. The appellant sought to support his submission by reference to Masson v Parsons [2019] HCA 21; 266 CLR 554 and Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3; 270 CLR 152.
109 The appellant also contends, as he did before the primary judge, that there has also been a contravention of the constitutional right of the State to provide for how its criminal laws are to be enforced, contrary to ss 106 and 107 of the Constitution.
110 The appellant also wishes to raise, on appeal, an amendment to the originating application that was not raised before the primary judge. As I have noted above when discussing the further draft amended notice of appeal, this amendment is directed to the non-revocation of the cancellation decision. The appellant wishes to contend that the Tribunal’s decision was manifestly unjust and affected by a misunderstanding of s 500(6H) of the Migration Act, which provides:
(6H) If:
(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
111 The substance of the appellant’s contention, in this regard, is that, at T[93] of its Decision Record, the Tribunal discounted written evidence given by the appellant’s father (about the appellant being rehabilitated) on the basis that the father did not give oral evidence and was not cross-examined on that evidence, in circumstances where the Minister had not required the father for cross-examination.
112 In his supplementary written submissions filed on 18 June 2021, the appellant contends that the Full Court’s decision in Raibevu and the High Court’s decision in Knight do not foreclose his challenge to the lawfulness of his detention under s 189(1) of the Migration Act.
113 First, the appellant submits that, in Raibevu, there was no challenge to the detention decision, only to the non-revocation of the cancellation decision.
114 Secondly, the appellant submits that his case can be distinguished from Knight. He submits that the law challenged in Knight did not affect the eligibility to apply for parole upon the expiration of the non-parole period. Rather, the law in Knight changed the requirements to be met to qualify for parole upon the expiration of the non-parole period. The appellant submits that, in his case, s 189(1) of the Migration Act had the practical operation of “disabling the non-parole period” by requiring the appellant to be kept in detention even though a parole order for his release had been made.
115 The appellant submits further that, because he had a head sentence of less than three years, s 158 of the Crimes (Administration of Sentences) Act meant that a parole order for his release occurred automatically upon the non-parole period expiring. He submits that the sentencing judge would have taken into account the certainty of his release when fixing the length of the non-parole period. He submits that this exercise of judicial power was stultified by his continued detention under s 189 of the Migration Act upon the expiration of his non-parole period, as was the effective operation of the State’s criminal justice system stultified.
Conclusion and reasons
116 I am not persuaded that this is an appropriate case for the granting of leave to appeal.
117 First, I am not persuaded that the appeal, which the appellant wishes to bring, has sufficient prospects of success to warrant the grant of leave.
118 The appellant’s core contentions are that (a) his detention under s 189(1) of the Migration Act, while on conditional release, is an abrogation or curtailment of the exercise of judicial power and an undermining of the institutional integrity of the District Court of New South Wales; and that (b) there has been a contravention of the constitutional right of the State to provide for how its criminal laws are to be enforced, contrary to ss 106 and 107 of the Constitution. These contentions have been rejected as “legal nonsense”: Ratugolea v Minister for Home Affairs [2021] HCATrans 176, with reference to Raibevu v Minister for Home Affairs [2021] HCATrans 120 (Raibevu (HCA)) and Isley v Minister for Home Affairs [2021] HCATrans 121.
119 It is true that, in the present case, the appellant’s release on parole was provided legislatively by s 158 of the Crimes (Administration of Sentences) Act rather than by an act of the executive government of New South Wales, but this is not a distinction of present significance. The appellant’s speculative suggestion that the sentencing judge would have taken into account the certainty of his release when fixing the length of the non-parole period is entirely beside the point. The sentencing judge was required to fix a non-parole period. It was not part of the sentencing judge’s judicial function to grant the appellant parole: R v Shrestha [1991] HCA 26; 173 CLR 48 at 72 – 73. The granting of parole was effected by s 158, on the conditions provided by that section. Further, those conditions, or even the operation of s 158 itself, could be varied by subsequent legislative action: Crump at [36] and [60].
120 Further still, the granting of parole, either by the exercise of executive power or by a statutory parole order (such as provided under s 158 of the Crimes (Administration of Sentences) Act), could not confer immunity on the appellant from any other law which might operate to restrict his liberty.
121 In this regard, the visa regime of the Migration Act is separate from and cumulative upon the regimes of State criminal justice: Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at 305. The undeniable fact is that the appellant’s visa has been cancelled under s 501(3A) of the Migration Act. Upon cancellation, the appellant became an unlawful non-citizen. He has not challenged, and does not seek to challenge, the cancellation decision. Section 189(1) of the Migration Act both authorises and requires unlawful non-citizens to be detained. The appellant’s contention that his detention is unlawful seems to be based on the assumption that, as an unlawful non-citizen, he has a right to reside in the Australian community when, clearly, this is not the case. Further, as the majority in Commonwealth of Australia v AJL20 [2021] HCA 21; 391 ALR 562 stated at [61]:
61 … Because the evident intention of the Act is that an unlawful non-citizen may not, in any circumstances, be at liberty in the Australian community, no question of release on habeas can arise. …
122 Secondly, for the reasons given above, I am not persuaded that the correctness of the primary judge’s ultimate decision to refuse leave to file and serve the proposed amended originating application is attended by sufficient doubt to warrant its reconsideration by the Full Court.
123 Thirdly, even assuming the primary judge’s ultimate decision to be wrong, I am not persuaded that the appellant would suffer substantial prejudice by refusing leave to appeal. The case which the appellant wishes to advance through the appellate process is fundamentally different to the case he commenced. Leaving to one side his continuing, but substantially different, challenge to the non-revocation of the cancellation decision (a matter to which I will shortly return), there is no injustice in not granting leave to the appellant to bring, in the proceeding below, what is an entirely new case about the lawfulness of his ongoing detention, which is irrelevant to the Tribunal’s decision.
124 If, despite the remarks I have made above, the appellant wishes to pursue a case of unlawful detention, he can do so by the commencement of fresh proceedings in the original jurisdiction of the Court. It is not expedient in the interest of justice, and not an efficient use of the Court’s resources, for the merits of these claims to be agitated before a Full Court in advance of them being heard and determined by a trial Judge.
125 This leaves the question of the appellant’s continuing, but substantially different, challenge to the non-revocation of the cancellation decision. As I have noted, this was not a matter raised before the primary judge. It is an entirely new point. Leave should be refused for that reason alone.
126 In any event, the point is not of sufficient merit to warrant the grant of leave. At T[84] – T[97] of the Decision Record, the Tribunal evaluated, as it was required to do, the likelihood of the appellant engaging in further criminal or other serious conduct. At T[91] – T[96], the Tribunal said:
91. The Applicant was placed into criminal custody in August 2018. Barely two months later, there arose the incident in October 2018 culminating in him pleading “guilty” to disobeying a lawful direction of a supervising jail officer. This is not promising evidence that the Applicant has changed his long-established pattern of disregarding lawful authority. Indeed, one could reasonably expect to see evidence of a “changed man” in the Applicant’s demeanour when placed in a facility which is designed for the rehabilitation of inmates/detainees. The opposite has occurred.
92. To the extent others may purport to corroborate the Applicant’s contentions about being rehabilitated, little weight can be allocated to such evidence. In his statement, the Applicant’s father says:
“…I’ve taught him to love and care for what is most dear to him and I’ve seen firsthand the love and bond he shares with his young boys and vice versa whilst they came for holiday in Fiji.
I know my son is a dedicated & loving father who sincerely misses his two boys and misses them dearly.
When my son worked he was the bread winner for his family and financially supported them. He is a responsible young man who knows his blood ties, an outgoing and hard worker…”
93. I have misgivings about the reliability and value of this evidence. First, the Applicant’s father was not called to give evidence at the hearing and his evidence was not tested by the Respondent’s representative. Second, the Applicant’s history of offending does not accord with his father’s observations. While the Applicant may love his young children, his predisposition towards offending has taken priority over his responsibilities both to those young children and the Applicant’s wife, now his ex-wife.
94. The further difficulty with this type of evidence – be it from the Applicant or his family members – is that his contentions about being a new man with a new outlook on life remains untested in the broader Australian community. In the absence of expert and independent analysis and reporting about his difficulties with alcohol and his consequent predisposition to offend, one cannot reliably move away from any other assessment that his likelihood of re-offending (that is, “high”) remains as it was prior to his most recent removal from the Australian community.
95. None of the statements filed by the Applicant in this proceeding mention anything about why the Applicant would, given his history of re-offending and failing to seize opportunities afforded to him, now make the most of yet another opportunity represented by this application. I thus agree with the Respondent’s submission: very limited weight should be given to those character statements to any extent they may relate to rehabilitation.
96. The inevitable conclusion to be reached about the Applicant’s risk of re-offending is best informed by an application of Principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79. The combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable. I so find.
(Footnote omitted.)
127 The role of s 500(6H) of the Migration Act does not appear to have been a matter of discussion, let alone contention, before the Tribunal. The appellant has not explained how, or in what respects, the Tribunal “misunderstood” it.
128 Moreover, there is no evidence before me of what decisions, if any, were made by the appellant as to the calling of oral evidence. This is completely unknown. The Minister’s Statement of Facts, Issues and Contentions, filed in the Tribunal’s review, certainly addressed the risk which the appellant posed to the Australian community and contended that the appellant had demonstrated a consistent disregard for Australian law, having committed numerous unprovoked and violent offences, including while on good behaviour bonds. The Minister’s case before the Tribunal was that the appellant’s past offending and the risk of his re-offending weighed heavily against revocation of the cancellation decision.
129 In these circumstances, it was for the appellant to decide what evidence he should adduce to address that issue, and the form that that evidence should take. He had to make (and, no doubt, did make) his own forensic decisions in that regard.
130 Further, it was for the Tribunal to assess the weight of the evidence before it. It gave cogent reasons for giving little weight to evidence of the kind given by the appellant’s father. One reason, amongst other reasons, was that the father had not been called by the appellant. This meant that, in the case of the father’s evidence, the Tribunal had been left with an untested written statement. Insofar as that statement purported to support the proposition that the appellant had been rehabilitated, it was inconsistent with the appellant’s history of, and predisposition to, criminal offending.
131 This treatment of the father’s evidence appears to be entirely orthodox. The Tribunal was not required to accept it uncritically, particularly when it had not been tested and was contradicted by objective evidence, which the Tribunal found to be more persuasive for the purposes of fact-finding: Rafidi v Commonwealth Bank of Australia [2020] FCAFC 26 at [17].
132 There is no apparent jurisdictional error involved in the Tribunal’s treatment and assessment of the father’s evidence.
Disposition
133 The objection to competency succeeds and the appeal is dismissed. The appellant’s interlocutory application filed on 28 April 2020 will be dismissed. The appellant is to pay the Minister’s costs of and incidental to the objection as to competency and of the interlocutory application.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. |
Associate:
