Federal Court of Australia

Faanoi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1453

ORDERS

THE COURT ORDERS THAT:

1.    The hearing listed on 14 November 2022 be adjourned to a date to be fixed.

2.    Within 14 days of the decision of the High Court of Australia in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (case number B42/2022) the First Respondent notify the Applicant and Associate to Justice Collier of the outcome of the High Court’s decision and promptly thereafter:

(a)    each party is to notify the Associate to Justice Collier by email as to their position; and

(b)    the parties are to seek to relist the matter for a case management hearing if necessary.

3.    The costs of the adjournment application are reserved.

4.    The Applicant’s costs thrown away by the adjournment, confined to the costs in respect of the Applicant’s consolidated written submissions filed on 30 September 2022, be the Applicant’s costs in the proceeding in any event.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    A delegate of the Minister refused to revoke the cancellation of the applicant’s visa in June 2021. He sought the review of that decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal was, by virtue of the Migration Act 1958 (Cth) (the Act), subject to a time constraint in respect of the hearing and determination of that review. The Tribunal conducted a hearing on 24 August 2021 and 3 September 2021. On 8 September 2021, the Tribunal decided to affirm the delegate’s decision not to revoke the cancellation of the applicant’s visa.

2    In October 2021, the applicant applied in this Court’s original jurisdiction for the judicial review of the Tribunal’s decision. The Court made initial case management orders on 1 December 2021 as a result of a consensual position reached by the parties, which was communicated to the chambers of the docket judge. At that time, the case was listed for hearing on 12 July 2022. That does, with respect, seem a very long lead time indeed in respect of a case touching upon a person’s liberty, but it was doubtless a reflection of the calls on the time of the docket judge that it could not be listed for hearing before then.

3    On 8 July 2022, the docket judge by consent vacated the hearing listed for 12 July 2022 and in lieu thereof directed that the matter be listed for hearing on or after 14 October 2022, and thereafter the hearing was fixed to occur on 14 November 2022. The occasion for the consensual vacation of the substantive hearing in July was an amendment, by consent, of the originating application so as to raise a ground concerning the relevance as a matter of law of certain juvenile proceedings to which the applicant was a party. That amendment was inspired by a judgment of the Full Court in Thornton v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 10 (Thornton). In turn, the Full Court’s judgment in Thornton had by June this year become the subject of an application for special leave to the High Court of Australia then pending in that court.

4    It was against that background that the parties, for their own reasons, determined consensually that the substantive hearing in July should be vacated. At that time, and also by consent, the docket judge varied earlier interlocutory orders so as to provide for a fresh timetable for the filing and service of written submissions by the parties. Materially, that included that by 4 pm on 30 September 2022, the applicant file and serve any consolidated submissions incorporating submissions on any new ground of review raised by the amended application. On 16 September 2022, the High Court of Australia granted the Minister special leave to appeal against the Full Court’s judgment in Thornton. The High Court has made consequential directions upon the filing of the resultant notice of appeal. These will see the final interlocutory step in the appeal completed on 23 December this year.

5    In late September, the Minister, by his solicitors, first canvassed with the applicant’s solicitors the prospect of an adjournment. That did not see any consent forthcoming. On 21 October 2022, the Minister filed an application for an adjournment of the hearing fixed to occur on 14 November 2022.

6    The application for an adjournment is opposed by the applicant. It was put, somewhat faintly, with respect, that there had been delay on the Minister’s part in bringing an application for an adjournment. I do not see that there has been any delay of any significance on the part of the Minister.

7    It was clear to the point of demonstration, having regard to the evidence put forward on behalf of the applicant, which concerned especially his mental condition, and his singular antipathy for being in immigration detention any longer than necessary, that this was a factor which told against the granting of an adjournment. As I have already observed, the case is one which touches upon personal liberty. That is always a weighty consideration in relation to an exercise of judicial power, be that in respect of an interlocutory application such as the present or dealing with the substantive judicial review application, but it is not the only consideration.

8    In BLD15 v Minister for Immigration and Border Protection [2017] FCA 72, in the face of an opposed adjournment application based upon a then pending application for special leave to appeal to the High Court, Katzmann J stated at [17] and [18]:

17    … It seems to me that it would not be an efficient use of the judicial and administrative resources of the Court to proceed to hear and determine the appeal knowing that there is an appeal or an application for special leave to appeal pending in the High Court, the outcome of which could determine once and for all a point that could be decisive in this case.

18    There is nothing unjust about this course. As Ms Tipene pointed out, the object of the special leave application in Singh, is to have the law clarified. The overarching purpose will best facilitated by deferring the hearing of this appeal, to ensure that the appeal is determined according to law.

9    I voiced similar sentiments in Minister for Immigration and Border Protection v AUS17 [2019] 167 ALD 313; [2019] FCA 1686 at [3]. I there referred to the particular volume of litigation in the migration jurisdiction and to the fluidity of the Act in response to particular judicial decisions. The nature of the cases arising under the migration jurisdiction is that their sheer volume, as well as particular policy positions adopted by the executive and which come to commend themselves to Parliament from time to time, inevitably, a number of test cases are pressed to ultimate appellate level, more often than not by the Minister. That is a feature of the separation of powers, but it has resonance in particular cases. It is hardly atypical that the applicant finds himself in the position of having the benefit of a point now raised as a ground of review which has become the subject not just of a special leave application but of a pending appeal.

10    It seems inherently likely, having regard to the Tribunal’s decision, that the “Thornton point” added by amendment would be, in the original jurisdiction of the Court in this case, a good point. There are other grounds of review, but they would add no forensic advantage in terms of success, given the presently binding nature of the Full Court’s judgment in Thornton.

11    Even if the case were conceded on 14 November, having regard to the Full Court’s judgment in Thornton, the result would not in itself be a court order which dictated the release of the applicant from immigration detention. The applicant’s visa would remain cancelled, and he would, therefore, be amenable to immigration detention. The applicant has passed into immigration detention from the criminal justice system ever since February this year. But even if he succeeded on judicial review on 14 November, all that would and could happen is that his case would be remitted for a fresh hearing on review in the Administrative Appeals Tribunal, the applicant would remain in immigration detention.

12    It was common ground between the parties that the time limit hitherto imposed by the Act in respect of his review application would not be applicable to the remitter. I agree with that construction of the Act.

13    It was also common ground that, in light of that, the lead time for hearing and determination of the applicant’s case in the Tribunal would be between six and 12 months. As it happens, it is quite possible that the High Court will have given judgment within that time in respect of the appeal. That is because it is also common ground that the High Court usually determines an appeal within 12 months of the filing of the appeal.

14    One might also expect, given the Minister’s disposition to press to ultimate appellate level, that it is relevant to take into account juvenile proceedings in deciding whether to revoke cancellation, that the Minister would press the Tribunal yet again with the relevance of the material concerning the applicant, noting in so doing that the question of its relevance was the subject of a pending appeal by the High Court. So the Tribunal in all likelihood would be faced in any event with having to decide whether to adjourn the hearing or at least its determination pending the outcome in the High Court.

15    There is no easy answer to the present adjournment application.

16    In the applicant’s favour, having the case proceed in this Court at least offers him the prospect of an administrative review clock starting earlier, but that clock may never come to sound a chime in his favour for reasons I have mentioned. The Tribunal may well be disposed to adjourn the hearing in any event pending the outcome in the High Court. In terms of public resources, there is in prospect a hearing later this month which may involve a pointless use of judicial time, and there is always an opportunity cost in that regard. In turn and in prospect it is also time in the Tribunal which could otherwise be used for other cases at least at an interlocutory stage of assessing whether to adjourn or postpone fixing a hearing because of the pending High Court appeal.

17    The applicant is disposed, as is his perfect right, to press the point decided in Thornton by the Full Court as a ground of review. He was disposed, even when it was but a pending special leave case, to recognise the impact that a challenge to that point might have in an exercise of original jurisdiction in this Court. It seems to me all that has happened in between then and now is that the applicant’s experience of immigration detention has soured him against recognising the impact of a challenge by the Minister to Thornton. That impact, in my view, is such that it is not in the interests of justice for the hearing to proceed on 14 November 2022. The case is one which whilst the Thornton point is at large ought to await a judgment of the High Court. That, in my view, is the price one pays for raising the point as a ground of review.

18    I therefore am disposed to adjourn the hearing on 14 November 2022 to a date to be fixed, and to make related orders requiring the Minister to notify the Court and the applicant of the outcome of the appeal in Thornton within 14 days of its determination by the High Court.

19    I am not pressed with any costs application in respect of the adjournment application itself. That, with respect, is appropriate on the Minister’s part. The applicant was entitled to oppose the application. I propose just to reserve costs in respect of the adjournment application.

20    There is, though, raised a question as to what to do in relation to costs thrown away. The applicant points in that regard to having prepared, filed and served submissions by 30 September 2022, in accordance with the Court’s order of 8 July 2022. Had the Minister propounded in addition to adjournment in late September a vacating consensually of the obligation to file those submissions, the filing of those submissions one might expect would have been averted. The Minister was always the party with the interest in adjournment and all that carried with it. The applicant in the absence of a variation of the order was duty bound to file submissions, and did so. It seems to me those costs have been thrown away.

21    It may be that other costs are incurred already in relation to the hearing of 14 November, but the applicant has been on notice at the very latest from 21 October that there was to be an adjournment application and had informal notice beforehand. It seems to me that the costs thrown away by any adjournment should be confined to those relating to the preparation, filing and service of the written submissions that the applicant filed on 30 September 2022. I order that those costs be the applicant’s costs in the proceedings in any event.

Associate:    

Dated:    1 December 2022