Federal Court of Australia

Taylor v Director Ministerial Intervention (National) [2024] FCA 1322

ORDERS

THE COURT ORDERS THAT:

1.    The originating application is dismissed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

MCELWAINE J:

1    I record that shortly before I entered Court for the hearing of this matter, the applicant who is currently a resident of the United Kingdom, was on the appointed Microsoft Teams link. I assumed the applicant wished to be heard upon his application. Before I entered the Court, I was advised by my associate that the applicant stated firmly that if I did not commence by 10.15 am, he would leave the link. In the events as they occurred, the Court commenced at approximately 10.16 am. True to his word, the applicant had disconnected the audiovisual link. In those circumstances, I was entirely satisfied that the applicant knew that his application would be dealt with this morning, and I determined to proceed in his absence.

2    I heard submissions from Mr Brown for the Minister. I read the materials, including the written submissions for the respondent. Section 195A of the Migration Act 1958 (Cth) (the Act) confers on the Minister personally a non-compellable discretionary power to grant a visa if the Minister thinks that it is in the public interest to do so. On 21 December 2018, the applicant’s visa was cancelled on character grounds under s 501(3A) of the Act on the ground that he had a substantial criminal record and therefore did not pass the character test and at the time was serving a full-time sentence of imprisonment. A delegate of the Minister subsequently decided not to revoke the cancellation decision.

3    The applicant has engaged in multiple unsuccessful attempts to have the non-revocation decision reviewed by the Administrative Appeals Tribunal and then on judicial review to a single judge of this Court, to the Full Court and ultimately by way of an application for special leave to appeal to the High Court. Whilst in immigration detention, the applicant applied by letter of 9 August 2022 for the Minister to consider the exercise of the power at s 195A of the Act. On 17 March 2023, a departmental officer determined not to refer the applicant’s application to the Minister because, inter alia, he did not satisfy the criteria specified in certain guidelines then published pursuant to s 197AB of the Act. The applicant was notified of that decision on 20 March 2023. This is referred to in the materials as the non-referral decision. On 23 March 2023, the applicant was removed to the United Kingdom, pursuant to the power at s 198(2B) of the Act on the basis that he was then an unlawful non-citizen and representations seeking revocation of the non-revocation decision had been made and rejected.

4    The applicant commenced an originating proceeding in this Court for review of the non-referral decision pursuant to s 39B of the Judiciary Act 1903 (Cth) on 18 July 2023. In summary, that timeline exposes a fatal defect in the application: the power at s 195A only applies to a person who is in detention under s 189 of the Act. There is, however, a point to be decided: should the applicant be granted declaratory relief to the effect that the first respondent, in purported compliance with the ministerial guidelines, failed to lawfully determine whether to submit the application for consideration by the Minister, pursuant to section 195A?

background

5    The background to the cancellation of the applicant’s visa and associated criminal history was summarised by Senior Member A. Nikolic AM CSC in the Administrative Appeals Tribunal decision to affirm the non-revocation decision: Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 19 at [11]-[23]. The applicant has a very poor criminal history. The Tribunal summarised it at paragraph [5] of its reasons when attempting to address the many aliases that the applicant has used over many years. Once that hurdle is navigated, the applicant’s past offending includes convictions for perjury, forgery, uttering, attempted false pretences and making, using or supplying identification information to commit or facilitate the commission of an indictable offence. He has served lengthy terms of imprisonment. The full history of offending is dealt with in some detail in the Tribunal decision at [7] – [14].

6    The applicant’s crimes include submitting income tax returns in various names of deceased persons, or the names of prisoners with whom he was incarcerated, to obtain taxation refunds which were paid into at least 30 bank accounts in different names. The total quantum of his offending in that regard exceeded $720,000. The applicant applied for judicial review of the Tribunal’s decision in this Court. That application was dismissed by Moshinsky J on 30 March 2022: Taylor v Minister for Home Affairs [2022] FCA 309. The applicant lodged an appeal from that decision, which was dismissed by the Full Court on 4 August 2022: Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 144; 294 FCR 63. A subsequent application for special leave to appeal was dismissed by the High Court on 8 December 2022: Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs M55/2022 [2022] HCASL 210.

the application for judical review

7     The applicant seeks the following relief:

(a)    the non-referral decision made under s 195A and s 197AB that the applicant’s request for Ministerial intervention did not meet the Ministerial intervention guidelines be set aside; and

(b)    the applicant’s request for Ministerial intervention be presented to the Minister for Home Affairs for his consideration and decision.

8    The applicant advances two grounds of judicial review, which it is not necessary to reproduce as they transgress the merits of his claims and make unspecified references to a number of superior court decisions. The originating application also includes a claim for interlocutory relief, that is that the decision that the applicant’s Ministerial intervention request did not meet sections 195A and 197AB of the guidelines be “voided” as the department did not have power to make the decision, which is one for the Minister alone.

the respondent’s concession

9    The respondents concede, appropriately, in written and oral submissions that the decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 97 ALJR 214 makes clear that the non-referral decision was made in excess of the executive power of the Commonwealth. The respondents further submit that this Court should make a declaration that the non-referral decision of the first respondent in purported compliance with the Ministerial guidelines exceeded the executive power of the Commonwealth.

10    The power to grant declaratory relief at s 21 of the Federal Court of Australia Act 1976 (Cth) is broad. However, it is not a power without limitations that are ordinarily concerned with questions of standing, justiciable controversy and whether relief should be granted or refused on discretionary grounds. Justice Lockhart when sitting as a member of the Full Court with Spender and Cooper JJ in Aussie Airlines Pty Ltd v Australian Airlines Ltd [1996] FCA 1580; 68 FCR 406, formulated the following summary at 414:

For a party to have a sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:

•    The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: Re Judiciary and Navigation Acts (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties,

•    The applicant for declaratory relief will not have sufficient status if relief is “claimed in relation to circumstances that [have] not occurred and might never happen”: University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10 per Gibbs J: or if the Court’s declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 180 per Mason J and at 189 per Aickin J.

•    The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 per Gibbs J and Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd at 448 per Lord Dunedin.

•    Generally there must be a proper contradictor: Russian Commercial & Industrial Bank at 448; and Ainsworth at 596 per Brennan J.

11    I emphasise that discretionary relief will ordinarily be refused if the declaration will produce no foreseeable consequences for the parties.

12    There is also the decision of the High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564, particularly the judgment of Mason CJ and Dawson, Toohey and Gaudron JJ at 581-582:

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court's declaration will produce no foreseeable consequences for the parties”.

[Footnotes omitted]

13    I emphasise that ordinarily discretionary relief should be refused if the question is purely hypothetical, if relief is claimed in relation to circumstances that have not occurred and might never happen or if the court’s declaration will produce no foreseeable consequence for the parties. To those authorities, I add references respectively to Clarence City Council v the Commonwealth [2020] FCAFC 8; 280 FCR 265 in the reasons of the Full Court of Jagot, Kerr and Anderson JJ at [67]-[80], [70]-[71], [99], and [188]. Further, and on appeal therefrom, the decision of the High Court in Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 276 CLR 519 at [77] in the plurality reasons of Gageler and Gleeson JJ. In particular, their Honours reference to the English case of Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) [1970] AC 1136 at 1155:

[I]t is important to distinguish between the jurisdiction of the court to entertain the proceeding at all, i.e. to embark on the inquiry whether facts exist, which would entitle the court to grant the relief claimed, and a settled practice of the court to exercise its discretion by withholding relief if the facts found to exist disclose a particular kind of factual situation. The application of a discretion to refuse relief, even though this may be pursuant to a set of practices is an exercise of jurisdiction, not a denial of it.

14     Now, in this proceeding, as the respondent correctly submits, the question is moot. It became moot once the applicant ceased to be held in detention pursuant to s 189 of the Act

15    It is sufficient, in my view, for this Court to note and accept the respondents’ concession, as obviously correctly made following the decision of the High Court in Davis that the non-referral decision exceeded the executive power of the Commonwealth. To that extent therefore, the applicant has a pyrrhic victory. It would not serve the interests of justice in my view to go further and to grant the declaratory relief that the respondents submit should be granted. To do so would be inutile because the declaration has no real or practical consequence for the parties. There is nothing that will flow from it, in that there is no other occasion that may call for the exercise of the non-compellable discretionary power which was sought to be exercised when the applicant made his application. Or to put it another way, in accordance with Ainsworth at 582, discretionary relief is properly withheld if the declaration will produce no foreseeable consequences for the parties.

16    For those reasons, I will not grant declaratory relief. The appropriate order is that the proceeding is dismissed.

Associate:

Dated:    12 November 2024