Federal Court of Australia

PHTP v Minister for Immigration and Multicultural Affairs [2024] FCA 1170

ORDERS

BY CONSENT, THE COURT ORDERS THAT:

1.    The title of the first respondent be amended to the “Minister for Immigration and Multicultural Affairs”.

2.    A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent dated 30 October 2023.

3.    A writ in the nature of mandamus issue requiring the second respondent to determine the applicant’s application to it according to law.

4.    The first respondent pay the applicant’s costs of the proceeding, as agreed or taxed.

BY CONSENT, THE COURT NOTES THAT:

The first respondent concedes that the second respondent’s decision is affected by jurisdictional error. The second respondent failed to act on a correct understanding of the law, by having regard to the prospect of the applicant’s “indefinite detention” including when considering the legal consequences of the decision, a prospect which was later displaced by the decision of the High Court of Australia in NZYQ v Minister for Immigration [2023] HCA 37; (2023) 97 ALJR 1005; AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103. The second respondent’s erroneous conclusion as to the legal consequences of the decision was an error of law: AJN23 at [33] and [34], and was material.

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

REASONS FOR JUDGMENT

GOODMAN J

1    The applicant is a citizen of Afghanistan, who has been in Australia since his arrival in January 2013. On 20 October 2017, the applicant was granted a Safe Haven Enterprise visa.

2    On 2 August 2022, a delegate of the first respondent Minister cancelled the visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). On 23 August 2022, the applicant sought revocation of that decision. On 17 August 2023, a delegate of the Minister notified the applicant that there would be no revocation.

3    The applicant then applied to the second respondent Tribunal for a review of the decision made by the delegate. On 30 October 2023, the Tribunal published its decision not to revoke the cancellation of the applicant’s visa and its reasons for doing so: PHTP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3536 (T).

4    The applicant then sought judicial review in this Court of the Tribunal’s decision, relying upon various grounds, including, relevantly, ground 4 in the following terms:

The Tribunal Decision was affected by jurisdictional error because it erred in law in finding that the legal consequence of a decision not to revoke the decision under review was that the Applicant would be detained indefinitely or for a lengthy period as it was contrary to the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.

5    On 16 May 2024, the application for judicial review was heard. Subsequently, and following delivery of the decision of the Full Court of this Court in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103 (Murphy, Stewart and McEvoy JJ), the parties requested that the Court defer the delivery of its decision until they had considered the effect of AJN23. On 30 September 2024, the parties provided proposed consent orders including an agreed notation to the Court, which if made would have the effect of quashing the Tribunal’s decision and requiring the Tribunal to re-determine the application before it.

6    I am satisfied that the Tribunal made a jurisdictional error and that the orders and notation sought should be made. It is appropriate, despite the orders being agreed between the parties, that I set out my reasons for making the orders: see, e.g., Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at 327 [12] (French J, as his Honour then was); VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921; (2022) 181 ALD 49 at 50 ([3] to [6]) (Colvin J). I do so briefly below.

7    The Tribunal, in its decision, made a finding that the almost inevitable consequence of the cancellation of the applicant’s visa would be his indefinite detention (T[102]). That finding involved an error of law: see NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005; AJN23 at [33] and [34].

8    When regard is had to the Tribunal’s reasons as a whole, it is apparent that the error permeated those reasons (see, e.g., T[47], [60], [72], [108] and [110] to [112]); and I am satisfied that the error is material in the manner recently explained by the High Court of Australia in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 and by the Full Court of this Court in AJN23 at [46], [49] to [51] and [54]. Thus the error is jurisdictional and the orders sought should be made.

Associate:

Dated:    11 October 2024