Federal Court of Australia

VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921

ORDERS

BY CONSENT THE COURT ORDERS THAT:

1.    A writ of certiorari issue directed to the Administrative Appeals Tribunal quashing the decision of the Administrative Appeals Tribunal dated 15 December 2021.

2.    A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 3 January 2020 according to law.

3.    The first respondent pay the applicant's costs, fixed in the sum of $13,129.71.

THE COURT NOTES THAT:

A.    The first respondent accepts that, in circumstances where the second respondent found, at [129], that Direction No 90 makes no reference to a decision-maker bound by it to take into account the prospect of a person facing indefinite immigration detention, it was irrational or illogical for the second respondent to reason that cl 9.1(2) of Direction No 90 required it to weigh the prospect of the applicant facing indefinite immigration detention against the seriousness of his criminal offending and other serious conduct. In the circumstances of this case, that error was material to the decision of the second respondent.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In December 2021, the Administrative Appeals Tribunal affirmed a decision to refuse to grant the applicant a protection visa. By an earlier decision of the Tribunal, it had been determined that protection obligations were owed to the applicant. The basis for the subsequent decision to affirm the refusal of the visa application was a conclusion that the Tribunal was not satisfied that the applicant passed the character test. In such circumstances, an application for a visa may be refused: s 501(1) of the Migration Act 1958 (Cth).

2    The applicant seeks review in this Court of the Tribunal's December 2021 decision. The Minister accepts that jurisdictional error has been demonstrated. The parties propose the making of orders by consent that would quash the Tribunal's decision and require a further determination according to law. The terms of an order for costs have also been agreed.

3    Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error. As explained by French J in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [12], there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. It is necessary for this to occur because it is not a matter for the parties to determine by agreement whether the extent of executive authority has been exceeded. Constitutional integrity requires that the limits upon the extent of judicial power to confine or constrain the exercise of executive power are carefully observed.

4    Further, in cases where the proposed orders will result in the matter being remitted, it is necessary for sufficient guidance to be provided whether by way of note to the orders (where that will be sufficient) or by publication of reasons to enable a further exercise of power according to law as determined by the Court. It is always a significant step for a court to exercise its jurisdiction to supervise the actions of the repositories of executive power and it is appropriate that due respect be afforded to a Tribunal, decision-maker or other repository by communicating the reasons for the grant of public law relief.

5    Finally, in many instances where public law relief is granted, the orders will affect the exercise of powers which have significance beyond the interests of the parties before the Court and for that reason the Court should make plain why it has granted relief.

6    As to the application of the above principles see, for example, Fleet v District Court of New South Wales [1999] NSWCA 363 at [59]; Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574 at [13]-[14]; and Mackey v CIC Allianz Australia Insurance Limited [2015] NSWSC 505 at [3].

7    For the following reasons, I am satisfied that there was jurisdictional error by the Tribunal and there should be consent orders in the terms proposed.

8    In considering whether a visa applicant passed the character test, the Tribunal was required to comply with any direction by the Minister: s 499(2A). At the time of the Tribunal's decision, there was such a ministerial direction described as Ministerial Direction 90 (Direction). A failure to comply with the Direction may constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6].

9    The Direction designates 'primary' and 'other' considerations to which a decision-maker is to have regard in exercising the discretion conferred by s 501(1) in instances where the decision-maker is satisfied that the visa applicant does not satisfy the character test. It requires those considerations to be taken into account, where relevant: para 6. It also provides that primary considerations should generally be given greater weight than other considerations: para 7(2).

10    The specified 'other' considerations include 'international non-refoulement obligations'. As to those obligations, the Direction provides (para 9.1(2) and (3)):

In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.

11    In that context, the Tribunal noted in its reasons that the Direction (unlike the terms of its predecessor) made no reference to the visa applicant facing the prospect of indefinite immigration detention as a result of Australia's non-refoulement obligations and the provisions in the Migration Act that require an unlawful non-citizen to be detained until (relevantly for present purposes) the person is removed from Australia or granted a visa: see s 189 and s 196. The Tribunal then reasoned (para 129):

However, in circumstances in which non-refoulement obligations are or have been found and there is no prospect of any future visa grant because of character issues or because the person cannot apply for any further visas, the Tribunal will need to consider indefinite detention as a prospect when considering the legal consequences of cancellation or refusal to grant a visa.

(footnote omitted)

12    The Tribunal then went on to note the following matters as being accepted by the Minister in respect of the applicant (para 135):

The Minister does concede that the administrative steps and inquiries to be undertaken in effecting the executive's policy (as to how to address cases where the removal of an unlawful non-citizen may not be practicable for the foreseeable future) may take a long time and may not have any clear outcome … The Minister also accepts that this may result in prolonged detention with no fixed chronological end point.

13    The Tribunal then went on to make a finding (at para 138) that the administrative steps and inquiries to be undertaken in effecting the executive's policy may take a long time and not have any clear outcome. Significantly, the Tribunal found: 'This may result in prolonged detention with no fixed chronological end point'.

14    The Tribunal then reasoned as follows (para 139):

As I am required to do by para 9.1(2) of Direction 90, I weigh the consequence described in [138] above against the seriousness of the Applicant's criminal offending and other serious conduct. As noted above, the Applicant has, and concedes that he has, a serious criminal record, and has engaged in other serious conduct, being family violence. I find that in weighing the non-refoulement obligation (or more accurately, the practical and legal consequences of not granting the Applicant the visa) against the seriousness of the Applicant's offending and other conduct, this consideration weighs marginally in favour of the grant of the visa.

15    However, para 9.1(2) of the Direction (quoted above) does not require the legal and practical consequences of prolonged detention with no fixed chronological end point to be weighed against the seriousness of the applicant's criminal offending and other serious conduct.

16    The Minister concedes that it was irrational or illogical for the Tribunal to reason that para 9.1(2) of the Direction required the Tribunal to weigh the prospect of the applicant facing indefinite detention against the seriousness of his criminal offending and other serious conduct where the Direction imposed no such requirement. It concerned the weighing of the non-refoulement obligation which was a separate matter to the prospect of prolonged and indefinite detention. I accept the correctness of that concession.

17    The Minister also accepts that if the Tribunal had not reasoned by the weighing process it undertook and instead had simply considered the significance or otherwise of its finding that there may be prolonged and indefinite detention then, in the circumstances of the case, it could have placed greater weight on the legal and practical consequences of refusal of the visa application. In that regard, I note that in the weighing process, the Tribunal determined that the consideration only weighed marginally in favour of the grant of the visa. The Tribunal's conclusion to that effect may be influenced by the erroneous conclusion as to what the Direction required and an evaluation that was not infected with that error may have caused the Tribunal to give much greater weight to the prospect of indefinite detention. There are at least two reasons why that may be so.

18    Firstly, if the Tribunal considered that it was not constrained by the terms of the Direction as to how to bring to account the prospect of indefinite detention then it may have given that prospect more significance.

19    Secondly, the Tribunal assumed that it was directed to weigh indefinite detention against the seriousness of the applicant's offending and other serious conduct. A comparison of that kind invites the significance of indefinite detention to be measured by reference to past offending. It would mean that more serious past offending might be thought to justify indefinite detention as a consequence of refusal of the protection visa application. This would calibrate the significance of the possibility of indefinite detention by reference to past offending and raise issues as to whether the duration of the detention was being justified as a consequence of that offending. However, the statutory purpose of executive detention under the Migration Act is to effect removal not to punish for past offending for which appropriate sentences are determined by the exercise of judicial power. Properly separated from the erroneous view of what the Direction required and guided by the statutory purpose to be served by detention, the Tribunal's view of the significance of the possibility of indefinite detention may well have been very different.

20    Therefore, materiality in the relevant sense has been established.

21    For those reasons, I am satisfied that it is appropriate to make the orders proposed.

Associate:

Dated:    10 August 2022