ASF17 v Commonwealth of Australia [2024] HCA 19 (10 May 2024)

Intro:-

This is an appeal from the Federal Court of Australia

Facts:-

The appellant, ASF17, is a citizen of Iran. He arrived in Australia as an unlawful non-citizen at the age of 27 in 2013. Except for a short period during which he held a bridging visa between 2013 and 2014, he has been held in immigration detention continuously since his arrival.

While in immigration detention, ASF17 in 2015 made an application for a Safe Haven Enterprise Visa ("SHEV"). The application was refused by a delegate of the Minister for Immigration and Border Protection in 2017. An application for judicial review of the decision of the delegate was dismissed by the Federal Circuit Court of Australia in 2017[4] in a decision which was upheld on appeal to the Federal Court of Australia in 2018.

The final determination of his application for a SHEV which occurred upon the dismissal of the appeal in 2018 engaged the duty imposed on officers of the Department of Home Affairs ("the Department") by s 198(6) of the Act to remove ASF17 from Australia as soon as reasonably practicable. Unlike the plaintiff in NZYQ, ASF17 has never formally requested to be removed from Australia so as to engage the other duty to remove imposed on officers of the Department by s 198(1) of the Act.

For the purpose of facilitating removal of ASF17 from Australia, officers of the Department conducted regular interviews with him from 2018. Throughout those interviews, he consistently told officers that he would not voluntarily return to Iran. He consistently refused to sign a request for removal or to engage with Iranian authorities in planning for his removal. He repeatedly told officers that he would agree to be sent to any country other than Iran. However, he did not suggest that there was any country to which he might be removed other than Iran.

Iranian citizens cannot enter Iran from Australia without a travel document issued by Iranian authorities and Iranian authorities have a longstanding policy of not issuing travel documents to involuntary returnees.

The Department has a policy of not removing anyone to a country in respect of which they have no right of residency or long-term stay ("the third country removal policy").

The consistent refusal of ASF17 to cooperate in facilitating his removal from Australia to Iran combined with his failure to identify any third country in which he might have a right of residency or long-term stay therefore resulted in an impasse. His position was described in a record of the Department in 2022 as "intractable".

In 2023, barely a week after the pronouncement of the orders in NZYQ, ASF17 applied to the Federal Court of Australia for a writ of habeas corpus on the basis that his continuing detention exceeded the constitutional limitation identified in those orders. In support of that application, ASF17 filed affidavits deposing that he is bisexual and that he feared being harmed in Iran because of his bisexuality. He had not claimed to fear being harmed in Iran because of his sexual orientation in his application for a SHEV in 2015 and the delegate of the Minister for Immigration and Border Protection had accordingly not considered it.
.
Responding to the application for a writ of habeas corpus, the Commonwealth accepted the burden of establishing that the continuing detention of ASF17 did not exceed the constitutional limitation identified in NZYQ. The Commonwealth sought to discharge that burden by establishing that ASF17 could be removed to Iran were he to cooperate in returning voluntarily to Iran.

The primary judge dismissed the application. ASF17 appealed from the decision of the primary judge to the Full Court of the Federal Court of Australia under s 24 of the Federal Court of Australia Act 1976 (Cth). The appeal was removed into this Court on the application of the Attorney-General of the Commonwealth under s 40(1) of the Judiciary Act 1903 (Cth).

Issue:-

Did continuing detention of appellant exceed constitutional limitation identified in NZYQ where appellant refused to cooperate in the undertaking of administrative processes necessary to facilitate his removal from Australia?

Consideration:-

The constitutional limitation unanimously expressed in NZYQ in terms that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia comes to an end when "there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future" was unanimously explained in NZYQ to follow directly from the principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs and to be an appropriate expression of the Lim principle in the context of the Act.

That explanation of the constitutional limitation was given in NZYQ against the background of the Lim principle having been unanimously explained to mean that "a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved" and against the background of the application of the Lim principle having been further explained by six members of the Court to be "ultimately directed to a single question of characterisation", though one which requires an assessment of both means and ends.

The short point is that, conformably with the Lim principle, continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee cannot be characterised as penal or punitive. The non‑punitive statutory purpose of removing an alien detainee from Australia under s 198(1) or s 198(6) of the Act remains a non-punitive purpose that is reasonably capable of being achieved if and for so long as removal could be achieved in the reasonably foreseeable future were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate that removal.

Conclusion:-

The statutory position of ASF17 is unambiguous. His removal from Australia is required by s 198(6) of the Act. In the absence of an extant protection finding, which would engage the operation of s 197C(3), his removal to Iran is permissible under s 198(6).

Appeal is dismissed with costs.

Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13 (17 April 2024)

Intro:-

This is an appeal from the Full Court of the Federal Court of Australia

Facts:-

Mr Miller is a Fijian national whose Resident Return (Subclass 155) visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("the Migration Act"). A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs ("the Minister") decided under s 501CA(4) of the Migration Act not to revoke that original decision on the basis that the delegate was not satisfied in terms of s 501CA(4)(b)(ii) that there was "another reason why the original decision should be revoked".

...

Calculating the period so fixed by s 500(6B) of the Migration Act in accordance with s 36 of Acts Interpretation Act 1901 (Cth), the last day for Mr Miller to make an application to the Tribunal for review of the decision of the delegate was 25 March 2021.

Mr Miller's migration agent made an application to the Tribunal for review of the decision of the delegate on 24 March 2021. Apparently because the migration agent mistook the form approved by the President of the Tribunal to be used for making such an application, the application made by the migration agent contained no statement of the reasons for the application.

The Tribunal held a directions hearing on 1 April 2021 at which the Tribunal requested that Mr Miller provide reasons for the application. In response to that request, Mr Miller's solicitors emailed the Tribunal on 9 April 2021. Under the heading "Why do you claim the decision is wrong?", the email stated, "[t]he Minister erred in concluding that there is not another reason why the original decision to cancel the applicant's Resident Return (Subclass 155) visa should be revoked". There is no dispute that this statement would have been sufficient to comply with s 29(1)(c) of the AAT Act had it been contained in the application made on 24 March 2021.

Tribunal and decision of the Federal Court & Full Court

The Tribunal considered the application to have engaged its jurisdiction to review the decision of the delegate despite the application's non-compliance with s 29(1)(c) of the AAT Act and proceeded to review the decision of the delegate. The Tribunal ultimately decided to affirm the decision of the delegate.

Mr Miller applied to the Federal Court of Australia under s 476A of the Migration Act for judicial review of the decision of the Tribunal. On the hearing of the application for judicial review, the Minister conceded that, if the jurisdiction of the Tribunal was engaged, then its decision was affected by jurisdictional error, but contended that the non-compliance with s 29(1)(c) of the AAT Act meant that the application failed to engage the jurisdiction of the Tribunal at all.

The primary judge (Derrington J) accepted the contention of the Minister that the non-compliance with s 29(1)(c) of the AAT Act meant that the application failed to engage the jurisdiction of the Tribunal. His Honour ordered that a writ of certiorari be issued quashing the decision of the Tribunal and that the application for judicial review be otherwise dismissed. The Full Court of the Federal Court (Thawley, Halley and O'Sullivan JJ) dismissed an appeal from those orders. This appeal is by special leave from the decision of the Full Court.

Issue:-

Did non-compliance with the requirement of s 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") – that an application to the Administrative Appeals Tribunal ("the Tribunal") for review of a decision "must contain a statement of the reasons for the application" – results in invalidity of the application such that the jurisdiction of the Tribunal to review the decision is not engaged?

Consideration:-

Project Blue Sky

In Project Blue Sky Inc v Australian Broadcasting Authority,[18] McHugh, Gummow, Kirby and Hayne JJ explained:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."

The explanation continued:

"Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue."

Their Honours went on to observe that breach of a condition regulating the exercise of a statutory power which does not result in invalidity might nevertheless result in an unlawful act capable of being restrained by injunction.

Section 29(1)(c)

The answer to the ultimate question whether non-compliance with the condition of the making of an application to the Tribunal in s 29(1)(c) of the AAT Act – that an application contain a statement of the reasons for the application – results in invalidity of the application accordingly turns on the answer to the Project Blue Sky question whether there is to be discerned a legislative purpose to invalidate an application that fails to comply with that specific condition.

The starting point of the requisite analysis is to recognise that the circumstance that s 29(1)(c) of the AAT Act provides that an application "must" contain a statement of the reasons for the application is little more than that which poses the Project Blue Sky question. The use of that imperative terminology does not in the context of the AAT Act necessarily point to an affirmative answer.

Multiple considerations point inexorably to a negative answer. Unlike s 29(1)(a) of the AAT Act, which sets out how an application "must be made", s 29(1)(c) sets out information that an application which is made "must contain". The information to be provided in compliance with s 29(1)(c) is not as to any objective circumstance but is limited to the subjective reason of the applicant for making the application. In the language of s 29AB, it is at most information as to why the applicant believes that the decision sought to be reviewed is not the correct or preferable decision. That information is to be provided in the application notwithstanding that the very fact of the making of the application carries with it the necessary implication that the applicant is dissatisfied with the decision sought to be reviewed.

---

To discern within this overall context a legislative purpose to invalidate an application and thereby to deprive the Tribunal of jurisdiction for want of compliance with a condition which requires the provision of information entirely subjective to the applicant, compliance with which might be entirely inutile and non-compliance with which would be readily remediable by directions made by the Tribunal within jurisdiction, would be to attribute to the legislature an intention which would be arbitrary to the point of being capricious. Hardly needing to be repeated is that attribution of a legislative intention to produce a consequence which appears to be "absurd" or "capricious" or "irrational or unjust"[27] is to be avoided where the statutory text is not intractable.

Conclusion:-

Appeal allowed.

Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 (10 April 2024)

Intro:-

This is an appeal from the Full Court of the Federal Court of Australia.

Facts:-

The respondent is a citizen of the United States of America whose visa was mandatorily cancelled ("the cancellation decision") in 2019 pursuant to s 501(3A) of the Migration Act 1958 (Cth) ("the Act") because the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ("the Minister") was satisfied that the respondent did not pass the "character test" as defined in s 501(6) of the Act.

Consequentially, the respondent made representations to the Minister seeking revocation of the cancellation decision pursuant to s 501CA(4) of the Act. For that purpose, the Minister was supplied by the Department of Home Affairs ("the Department") with a 13‑page "Submission" which summarised those representations; a 15‑page draft statement of reasons in support of a decision not to revoke the cancellation decision; and copies of all of the actual representations made by the respondent, and on his behalf, as well as other relevant material.

The representations and other material comprised 213 pages. They included the respondent's handwritten request for revocation of the cancellation decision, letters and emails of support from his Australian partner, his children under his care and other individuals, letters and emails relating to the respondent's time in prison, certificates confirming the completion of certain courses, medical information and other correspondence. The material also included a record of the decision of the Prisoners Review Board of Western Australia providing for the respondent's conditional release on parole on the basis that the Board found that he "would not present an unacceptable risk to the safety of the community".

In making his decision, it is now accepted that the Minister only read the Submission and the draft reasons. He did not read or otherwise consider any of the actual representations made by the respondent, or on his behalf, or the other material described above.

The decisions below

The primary judge

The primary judge emphasised that the Minister had made an election personally to exercise the power conferred by s 501CA(4). This, it was said by the primary judge, had consequences. It obliged the Minister to give the "necessary personal proper, genuine and realistic consideration to the merits of the representations". That could only be achieved by the Minister "personally considering and understanding the representations made" and that required him to read "the attachments" to the Submission.[18] The summary of those materials in the Submission was no adequate substitute for the Minister's "deliberative task of forming a personal state of satisfaction"

The Full Court

The Full Court agreed with the primary judge. Their Honours emphasised that the choice to exercise the power personally obliged the Minister to "personally and directly consider the representations made in support of revocation". That was especially so, it was said, because the representations to which s 501CA(4) are directed comprise "an exercise in persuasion, when the odds are already stacked against the individual affected".

Issue:-

Is the Minister required to personally read some or all of respondent's representations to form state of satisfaction or can he rely upon summary of representations contained in departmental submission?

Consideration:-

Exercising ministerial power personally

Not all statutory powers conferred upon a Minister of the Crown need be exercised personally. Depending upon Parliament's intention, some powers may be able to be delegated to an officer of a department to be exercised by that person and in his or her name.[34] Other powers may be capable of being exercised by a departmental officer, but on behalf of a Minister.[35] Whether a power is delegable or exercisable by an agent is ultimately a question of statutory construction.

When, as here, a Minister exercises a power personally, the law recognises that he or she does not work alone but makes decisions with the assistance of his or her department. The law treats the collective knowledge and experience of the department as the Minister's own knowledge and experience. As Lord Diplock said in Bushell v Environment Secretary:

"Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise."

The foregoing permits a Minister to rely on his or her department to sift and organise material received, to prepare summaries of information, and to prioritise correspondence. Generally, there is no obligation on a Minister to read each and every relevant document in order to exercise a power personally. These principles were described by Brennan J in Peko-Wallsend as follows:

"The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a Department's function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and précis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision.

Section 501CA4)

Section 501CA(4), by necessary implication, obliges the decision-maker to consider the representations received in reaching the state of satisfaction. That obligation conditions the formation of the relevant state of satisfaction. The question is what that obligation requires. Does the obligation oblige the Minister personally to read all of the submissions and material received pursuant to s 501CA(3) and (4), or at least some of them? Certainly, there is no express requirement to do so. As mentioned above, s 501CA(4) is silent as to how, or by what method, the Minister is to form the state of satisfaction required by s 501CA(4), save that by reason of s 496 he or she may delegate that task to an officer of the Department.

Nor does s 501CA(4) impliedly mandate personal interrogation of the materials received. Such a conclusion conflicts with this Court's observation against the formulation of any "absolute rules" about how the power conferred by s 501CA must be exercised.

It is a matter for the Minister to determine how to be satisfied as to whether "another reason" exists to justify revocation of a cancellation decision. Naturally, that can include personally reading and understanding all of the submissions. But that is not the only way the Minister's function may be discharged. There is no barrier to the Minister reading and understanding the representations made by an applicant by other methods including the method of relying only upon a departmental summary of them, so long as that summary is accurate and contains a full account of the essential content.
...

It is not a condition of the valid exercise of the power conferred by s 501CA(4) for the Minister, when personally exercising that power, personally to read and examine the submissions, representations and other material received in every case. The Minister may rely instead upon departmental briefs and submissions which accurately summarise and order that material.

...

So long as the representations are appropriate to be summarised and that process of distillation is accurate and provides a full account of the essential content, it will be lawful for the Minister to read the summary and nothing more.

Conclusion:-

Appeal allowed.

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (10 April 2024)

Intro:-

This is an appeal from the Full Federal Court of Australia

Facts:-

The appellant is a Vietnamese national. He arrived in Australia in 1997 and, in 2008, was granted a Class BS Subclass 801 (Spouse) visa. Between November 2011 and August 2017, he was convicted of various offences on three separate occasions, twice in the County Court of Victoria and once in the Magistrates' Court of Victoria, including offences of conspiring to import or export a marketable quantity of a border controlled drug or plant, attempting to possess a marketable quantity of a border controlled drug or plant, and trafficking a drug of dependence. On each occasion he was sentenced to a period of imprisonment, the most recent of which was on 17 August 2017 for a period of four years and six months.

In May 2019, the appellant's visa was subject to mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth) ("the cancellation decision"). An application, under s 501CA(4) of the Act, for revocation of the cancellation failed ("the delegate's decision").

The appellant applied to the Administrative Appeals Tribunal ("the Tribunal") to review the delegate's decision and, in deciding to affirm the delegate's decision, the Tribunal said it was not satisfied (under s 501CA(4)(b)(ii) of the Migration Act) that there was "another reason" why the cancellation decision should be revoked. In considering whether there was "another reason", the Tribunal was required by s 499(2A) of the Migration Act to comply with Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("Direction 90").

Tribunal's decision

The Tribunal was required by para 8.1.1(1)(a) to have regard to the fact that certain "types of crimes or conduct" described therein are deemed to be viewed "very seriously" by the Australian Government and the Australian community. There was no dispute that none of the appellant's convictions fell within any one of the described types. In considering this sub-paragraph, the Tribunal found that it "militate[d] strongly in favour of a finding that the [appellant's] criminal offending has been of a very serious nature".

Paragraph 8.1.1(1)(b) required the Tribunal to have regard to the fact that certain "types of crimes or conduct", which were listed, are considered by the Australian Government and the Australian community to be "serious". The appellant did not dispute that his drug offending could be characterised as falling within one of these described types, namely "crimes committed against vulnerable members of the community". The Tribunal found that para 8.1.1(1)(b) also "militate[d] in favour of a finding that the [appellant's] criminal offending has been of a very serious nature".

Paragraph 8.1.1(1)(g) required the Tribunal to have regard to whether the appellant "has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the [appellant's] migration status". The Tribunal found that "[t]his consideration is directly relevant in this case", and specifically found that it was "satisfied that the [appellant] re-offended since having been formally warned or since otherwise being made aware in writing about the consequences of further offending in terms of his migration status".

Decision of Federal Court and Full Federal Court

In the Federal Court of Australia, Snaden J dismissed the appellant's application for judicial review of the Tribunal's decision under s 476A(1)(b) of the Migration Act on the basis that the Tribunal's decision "was not attended by jurisdictional error". Relevantly, his Honour found that the Tribunal had not erred in its treatment of para 8.1.1(1)(a), (b) and (g) of Direction 90.

The Full Court of the Federal Court (Markovic, Thomas and Button JJ) agreed with the primary judge's conclusion that the Tribunal's decision was not attended by jurisdictional error but arrived at that conclusion by a different route. The Full Court found that the Tribunal's findings in relation to para 8.1.1(1)(a), (b) and (g) did involve error, but dismissed the appeal on the basis that the error was not material and therefore not jurisdictional.

Issue:-

Was Tribunal failure to engage in evaluative assessment of relevant mandatory considerations material leading to jurisdictional error?

Consideration:-

Did an error occur?

Before this Court, there was no dispute that the Tribunal's decision involved error: the Tribunal breached s 499(2A) of the Migration Act in failing to comply with Direction 90 in the manner described. In the present case, where the error was a breach by a statutory decision-maker of a condition governing the making of the decision, the relevant facts were established by the tender of the Tribunal's reasons for decision. Nothing more was required.

In the courts below, the parties and the courts approached the identification of error by considering each aspect of the Tribunal's reasons which was challenged as a separate error. That was a misidentification of the error. As counsel for both the appellant and the Minister accepted in the course of argument, there was one error – a failure to comply with s 499(2A) of the Migration Act. Each aspect of non-compliance with s 499(2A) was a particular of the one error – a breach by a statutory decision-maker of a condition governing the making of a decision, namely statutory non‑compliance with s 499(2A) of the Migration Act in failing to comply with Direction 90.

Was the error material?

The issue on appeal concerns the second question: whether the error was material so as to constitute jurisdictional error. The starting point is the nature of the error. There was no submission that a breach of s 499(2A) of the Migration Act in failing to comply with Direction 90 was an error that was jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. The question was whether the decision that was in fact made by the Tribunal could, not would, "realistically" have been different had there been no error. The answer to that question, in this appeal, is to be determined from the face of the Tribunal's reasons.

The error of the Tribunal was a breach by a statutory decision‑maker of a condition governing the process of reasoning to be undertaken in exercising the decision-making power under s 501CA(4). The condition imposed by s 499(2A) by reference to Direction 90 required the Tribunal to take into account, as mandatory considerations, the primary considerations identified in para 8 and the other considerations in para 9, where those considerations were relevant to the decision. Fulfilment of the condition required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the particular applicant. Then, having identified the relevant mandatory considerations, the exercise of the discretion under s 501CA(4) required the Tribunal to engage in an evaluative assessment involving the weighing of those relevant mandatory considerations with other relevant considerations.

In this case, the Tribunal did not follow the required process of reasoning. In relation to para 8.1.1(1)(a), the unavoidable inference is that the Tribunal misunderstood the provision, the appellant's conduct, or both. In relation to para 8.1.1(1)(b), it is not possible to comprehend how the Tribunal made its findings.[41] In relation to para 8.1.1(1)(g), the Tribunal regarded the consideration as directly relevant when there was no evidence before the Tribunal showing that it did apply. There is no rational basis for the Tribunal's findings.

Those aspects of the error, in the statutory context in which the decision was made, compel the finding that the evaluative conclusion reached by the Tribunal in the exercise of the discretion under s 501CA(4) could have been different if there had been no error. Each particular of the error contributed to the evaluative and discretionary decision which the Tribunal made in that each bore on the Tribunal's assessment of Primary Consideration 1, and in that the Tribunal's assessment of Primary Consideration 1 weighed in favour of its exercise of discretion under s 501CA(4) not to revoke the cancellation of the appellant's visa. The Tribunal's error in its process of reasoning in these respects alone established that the error was material.

It would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects. It follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred. The threshold of materiality was met. None of the facts before the Court provided a basis to consider that the outcome would inevitably have been the same had the error not been made. The error was jurisdictional. The curial relief sought by the appellant should be granted.

Orders

For those reasons:

1. The appeal should be allowed with costs.

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6 (6 March 2024)

Intro:-

The plaintiff commenced proceedings in the High Court's original jurisdiction seeking certiorari to quash the delegate's decision to cancel the plaintiff's visa under s 501(2) of the Migration Act, 1958 (Cth).

Facts:-

The plaintiff was born in July 1983. He is a citizen of Fiji. He arrived in Australia with his parents and siblings in January 1988. In November 1999, he was granted a Class BF 154 Transitional (Permanent) visa permitting him to remain in Australia permanently.

From 1996 until 2001, the plaintiff either pleaded guilty to, or was found guilty by the Children's Court of, numerous offences including multiple counts of robbery in company.

In August 2003, he was convicted of three counts of robbery while armed with a dangerous or offensive weapon. He was sentenced by the District Court of New South Wales to substantial terms of imprisonment for each offence ("the 2003 offences").

In May 2010, the plaintiff was convicted and sentenced by the District Court to terms of imprisonment for two offences of robbery while armed with a dangerous weapon and two attempts to commit such offences.

The issues paper and the delegate's decision

As at October 2013, s 501(2) of the Migration Act provided that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects the person does not pass the "character test" and the person does not satisfy the Minister that they pass that test. This power could be, and was, delegated.A person did not pass the character test if, inter alia, they had a "substantial criminal record", which included being sentenced to a term of imprisonment for 12 months or more. The sentences imposed for the 2003 and 2007 offences satisfied the definition of a substantial criminal record.

Placed before the delegate was a memorandum prepared by a departmental officer entitled "Issues for consideration of possible visa cancellation under subsection 501(2) of the Migration Act 1958" ("the issues paper"). The issues paper addressed the plaintiff's circumstances by reference to a direction made under s 499 of the Migration Act in relation to visa refusals and cancellations under s 501 of that Act ("Direction No 55"). Direction No 55 provided that any exercise of the discretion conferred by s 501 must be informed by principles that included the protection of the Australian community. By reference to that principle, the issues paper described the facts and circumstances of the 2003 and 2007 offences. The issues paper also advised the delegate that the plaintiff had other "serious convictions" for similar offences "dating back to 1996, when he was a juvenile aged 13".

The issues paper and its attachments, including the police certificate, were provided to the delegate. The delegate's reasons record that he took into account the plaintiff's convictions, including his "convictions" for offences for which he was sentenced by the Children's Court when he was under the age of 16 years.

Issue:-

Where s 85ZR(2)(b) of Crimes Act 1914 (Cth) provided that where, under a State law, a person is, in particular circumstances or for a particular purpose, taken never to have been convicted of an offence, the person shall be taken in any State, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State never to have been convicted of that offence, did the delegate erroneously take into account matters precluded by ss 85ZR(2)(b) and 85ZS(1)(d)(ii) of Crimes Act by considering the offences committed by plaintiff when under 16 years of age?

Consideration:-

Sections 85ZR and 85ZS

Sections 85ZR and 85ZS are found within Div 2 of Pt VIIC of the Crimes Act. Division 2 is entitled "Pardons for persons wrongly convicted, and quashed convictions". Section 85ZR(2) addresses the effect of a particular form of State or foreign law concerning convictions. It relevantly provides:

"Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:

(a) ...

(b) the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence." (emphasis added)

Section 85ZR(2) operates "[d]espite any other Commonwealth law", including s 501(2) of the Migration Act.[15] For the purpose of s 85ZR(2), a "Commonwealth authority" includes a Commonwealth Minister, a Commonwealth department and a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth law, which includes the delegate.

Thornton

In Thornton, Gageler and Jagot JJ held that the effect of the Youth Justice Act was that a finding of guilt for which no conviction was recorded was not, and was "not taken to be", a conviction for any purpose. It followed that s 85ZR(2)(b) was engaged and the "corresponding purpose" was "any purpose", including the purpose of considering whether to revoke the cancellation of a visa. Their Honours concluded that "[t]he Minister's consideration of Mr Thornton's youth offending in deciding not to revoke the cancellation of the visa was contrary to the direction in s 85ZR(2)(b) of the Crimes Act" (emphasis added).

The Children Proceedings Act, 1987 (NSW)

Relying on s 85ZR, s 85ZS and Thornton, the plaintiff contended that under a "State law", namely the Children Proceedings Act, he was "taken never to have been convicted" of (at least) the offences for which he was sentenced by the Children's Court when he was under the age of 16 years for all but presently immaterial purposes.

.....

Within Div 3 of Pt 2 was s 14, which provided:

"Recording of conviction

(1) Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court:-
(a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and

(b) may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years.

The "convictions" and findings of guilt could not be considered

The plaintiff contended that, once it is concluded that he is taken never to have been convicted of the offences for which he was sentenced by the Children's Court when he was under the age of 16 years for any purpose, then s 85ZR(2) is engaged, and it follows from Thornton that s 85ZR(2) and, to the extent necessary, s 85ZS(1)(d)(ii) precluded the delegate from relying on those convictions (or the findings of guilt they embody). This contention should be accepted.

...

Similar to Thornton, in this case the delegate was precluded from taking into account so much of the plaintiff's "youth offending" and "finding[s] of guilt" that related to the offences for which he was sentenced by the Children's Court prior to his reaching 16 years of age and the fact that he was charged with, or supposedly convicted of, those offences.

Conclusion:-

It was not disputed by the Minister that, if it was accepted that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act precluded the delegate from considering the plaintiff's "convictions" for which he was sentenced by the Children's Court when he was under the age of 16 years, then the delegate's decision was affected by jurisdictional error. This concession extended to accepting that the erroneous consideration was material to the delegate's decision. Those concessions were rightly made. It follows that a writ of certiorari should issue quashing the delegate's decision. The Minister should pay the plaintiff's costs.

AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10 (13 March 2024)

Intro:-

This is an appeal from the Supreme Court of Victoria.

Facts:-

Between 2019 and 2021, IBAC conducted an investigation into allegations of unauthorised access to, and disclosure of, internal email accounts of a "public body" within the meaning of s 6(1) of the IBAC Act.

The second appellant, CD, is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth). The first appellant, AB, is a senior officer of CD and an employee of the public body. During the investigation, AB gave evidence to IBAC in a private examination.

On 6 December 2021, IBAC provided AB with a redacted version of its draft special report prepared under Pt 7 of the IBAC Act and requested his response by 20 December 2021 ("the Draft Report"). Part 4 of the Draft Report contained proposed findings adverse to AB (and others) in relation to the unauthorised access and disclosure of information and reasons for those findings. Part 5 of the Draft Report contained proposed findings adverse to the appellants (and others) in relation to the workplace culture of the public body and reasons for those findings.

On 12 December 2021, AB's solicitor replied to IBAC seeking an extension of time in which to respond, the transcript of his examination, transcripts of the examinations of other witnesses referred to in the Draft Report and copies of other documentary material relied upon to support the proposed adverse findings. On 14 December 2021, IBAC agreed to the extension of time and provided the transcript of AB's examination as well as copies of the documents shown to him during his examination. However, IBAC did not agree to provide the transcripts of the other witness examinations or the other requested documents.

Issues:-

Does "adverse material" referred to in s 162(3) refer to the proposed adverse comments or opinions in the special report or whether it is the evidentiary material upon which those proposed adverse comments or opinions are based?

Will the obligation to provide adverse material be satisfied by the provision of the substance or gravamen of the underlying material rather than the underlying material itself?

Consideration:-

The IBAC Act

The objects of the IBAC Act and the functions of IBAC include the identification, investigation and exposure of corrupt conduct, assisting in the prevention of such conduct and assisting in improving the capacity of the public sector to prevent such conduct. The definition of "corrupt conduct" is extensive, but it suffices to state that it includes conduct of a public officer or public body that constitutes the dishonest performance of their functions or conduct of any person that adversely affects the honest performance of those functions, provided that such conduct constitutes a "relevant offence" (which includes any indictable offence committed against an Act). IBAC's functions also include reporting on, and making recommendations as a result of, the performance of its duties and functions.

Section 162(2)-(4) provide:

"(2) If the IBAC intends to include in a report under this section adverse findings about a public body, the IBAC must give the relevant principal officer of that public body an opportunity to respond to the adverse material and fairly set out each element of the response in its report.

(3) If the IBAC intends to include in a report under this section a comment or an opinion which is adverse to any person, the IBAC must first provide the person a reasonable opportunity to respond to the adverse material and fairly set out each element of the response in its report.

(4) If the IBAC intends to include in a report under this section a comment or an opinion about any person which is not adverse to the person, the IBAC must first provide that person with the relevant material in relation to which the IBAC intends to name that person." (emphasis added).

Adverse material and s 162(3)

The interpretation of s 162(3) of the IBAC Act must "begin with a consideration of the text itself", that is, the text of the statute as a whole. That said, ascertaining the meaning of the text requires a consideration of its context, which includes the general purpose and policy of a provision and, in particular, the mischief it is seeking to remedy.[38] Neither the Court of Appeal nor any of the parties suggested that the extrinsic materials or legislative history of s 162 were of assistance in resolving the construction issue raised in this case.

The obligation imposed by s 162(2) is engaged where IBAC intends to include in a special report an "adverse finding" about a public body, whereas the obligation imposed by s 162(3) is engaged where IBAC intends to include in a special report a "comment or ... opinion which is adverse to any person". The words "finding", "comment" and "opinion" are not defined in the IBAC Act. It is unnecessary to explore whether there is any substantial difference between those words in this context, as there is no doubt that each of them at least includes a conclusion that a person has engaged in "corrupt conduct". If it were otherwise, the protections afforded by s 162(2) and (3) would be illusory. The potential damage to the interests, including the reputation, of a public body, public officer or other person from the publication of a special report containing a conclusion that they engaged in corrupt conduct is manifest.

Section 162(4) provides little assistance in construing s 162(2) and (3). Where IBAC intends to include in a special report a comment or opinion about a person that is not adverse to them, it is obliged to provide that person with the "relevant material" in relation to which IBAC intends to name them. Section 162(4) does not afford that person an opportunity to respond to that material, much less require the inclusion of a response in any draft report.

With both s 162(2) and (3), the opportunity (or reasonable opportunity) IBAC must afford is to respond to the "adverse material". The text of those provisions suggests that "adverse material" is something different from the "adverse findings" and the "comment or ... opinion which is adverse". Parliament could have provided that the opportunities afforded by s 162(2) and (3) respectively are to respond to the proposed "adverse findings" and the "comment or ... opinion which is adverse", but it chose not to. Instead, the undefined phrase "adverse material" was utilised.

In construing that phrase, it is important to begin by identifying some basic propositions about the applicable common law principles of natural justice where a person's interests are likely to be affected by an exercise of power. First, such a person "must be given an opportunity to deal with relevant matters adverse to [their] interests which the repository of the power proposes to take into account in deciding upon its exercise". Second, the person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. However, "in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made". At least in some contexts, the affected person must be given the opportunity to respond to such information obtained from third parties even if it was not expressly relied on, or proposed to be relied on, by the decision-maker.

Conclusion:-

It follows that the appellants' sole ground of appeal should be upheld. The Court of Appeal erred in construing the phrase "adverse material" in s 162(3) of the IBAC Act. That phrase refers to the evidentiary material said by IBAC to justify a "comment or ... opinion which is adverse to any person". In most cases, including this one, it would be expected that a reasonable opportunity to respond to that evidentiary material will be afforded by proffering a reasonable opportunity to respond to the substance or gravamen of that material, which will usually involve a full account of its essential content. In some cases, more may be required where the provision of the substance or gravamen of the material is not sufficient to discharge IBAC's obligation under s 162(3).

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 (7 February 2024)

Intro:-

This matter, brought in the original jurisdiction of the Court, involves the construction, validity, and operation of parts of Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("Direction 90"), which is a direction made under s 499(1) of the Migration Act 1958 (Cth) ("the Act").

Facts:-

The plaintiff was born in Lebanon and holds a travel document for Palestinian refugees issued by the Republic of Lebanon. The plaintiff came to Australia on a Student (Higher Education Sector) (Subclass 573) visa in 2010 when he was 21 years old. He was granted a Partner (Subclass 801) visa in 2015 ("Partner visa"). Between 2010 and 2022 the plaintiff was convicted of various offences, including offences of driving while disqualified and offences of domestic violence.

On 28 September 2022, a delegate of the Minister administering the Act decided to refuse to grant the plaintiff a Return visa. The delegate concluded that the plaintiff did not pass the "character test" and that the "considerations favouring non‑refusal [of the visa application] are outweighed by the considerations favouring refusal". The plaintiff contends that in making this decision the delegate erred in law on several grounds, each relating to Direction 90.

The Act and Direction 90

Section 501(1) of the Act provides that "[t]he Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test". "A decision under s 501(1) involves two steps, being a consideration of whether the person has satisfied the decision‑maker that the person passes the character test, and if not, the exercise of the discretion whether to exercise the power to refuse the visa."[1] The plaintiff does not dispute that he does not pass the "character test" as, in accordance with s 501(6)(a), he has "a substantial criminal record" as defined in s 501(7) of the Act.

Direction 90 is a direction given by the Minister under s 499(1) of the Act. Section 499(1) provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2) provides that the Minister is not empowered to give directions that would be inconsistent with the Act or the regulations. Section 499(2A) provides that a delegate of the Minister must comply with a direction (such as Direction 90) in deciding, relevantly, whether to refuse to grant a visa under s 501(1) of the Act.

...

8. Primary considerations

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the best interests of minor children in Australia;

(4) expectations of the Australian community."

Issues:-

Ground 1 - Whether delegate failed to comply with para 8.3(1) of Direction 90 or failed to inquire about status of minor child in circumstances where it was legally unreasonable not to do so?

Ground 2 and 3 - Whether para 8.2 of Direction 90 permitted delegate to give weight to family violence considerations in circumstances where delegate had given weight to considerations under other paragraphs?

Ground 4 - Whether delegate misapplied para 8.4 of Direction 90.?

Consideration:-

Ground 1

The information available to the delegate

In the information initially submitted in support of the plaintiff's visa application, there is no mention of MC. In contrast, there is reasonably detailed information about two children who are brothers of MC, one also being a minor child (under 18 years of age) and the other not being a minor child (as he was 22 years old at the time). The information initially submitted comprised statements in support, including one from the plaintiff, one from the plaintiff's partner (who provided information about her sister's two sons – the brothers of MC – and the three children of another sister, but did not mention MC), and one from the sister of the plaintiff's partner and the mother of the brothers of MC (who provided information about the plaintiff's relationship with her two sons but did not mention MC). For example, the plaintiff's statement said the plaintiff had a "very strong bonded family‑like relationship" with his partner's sister, who was a single mother to a 7‑year‑old and a 22‑year‑old, identified as the two sons of his partner's sister. The statement said the plaintiff had built a "very strong connection and relationship" with his partner's sister, "supporting her with the management and upbringing of her children and assuming responsibility over her children". MC is not mentioned in this statement.

The plaintiff subsequently submitted a "Personal Circumstances" form. That form had a section saying, "List below all your minor children ... Provide evidence to support your claims including birth certificates, if available." The plaintiff's response in this part of the form identified the two sons of the sister of the plaintiff's partner (as noted, only one of whom is a minor child under 18 years of age). It also identified, for the first (and only) time, MC as a child of his partner's sister, with whom the plaintiff stated he had "daily" contact. In response to another question asking for a description of the plaintiff's relationship with "each child/ren above, including the role you play in his/her life", the plaintiff referred to attached documents "regarding my guardianship to children and impacts of my absence". None of the documents referred to MC. Another section of the form, asking the plaintiff to list all other minor children in his life in Australia, was left blank.

Was there a duty to inquire?

In the circumstances described, it was not legally unreasonable for the delegate to decide to refuse the visa application without making an inquiry about MC. The plaintiff had multiple opportunities to provide the Department with information about all minor children who he contended would be affected by the decision. None of the circumstances which were identified on the plaintiff's behalf as salient to the alleged legal unreasonableness of the delegate's decision alter the basic fact that no one suggested any possible effect of the decision on the best interests of MC.

The delegate was entitled to decide the visa application without making an inquiry about MC. The delegate did not have a duty, either generally or under para 8.3(1) of Direction 90, to determine if the decision would or would not be in the best interests of MC as a minor child given that the information provided by and on behalf of the plaintiff did not establish that MC was in fact a minor child whose interests might be affected in any way by the decision.

Ground 2

The plaintiff contends that: (1) para 8.2 of Direction 90 did not permit the delegate to give weight to family violence under para 8.2 in circumstances where the delegate had already given weight to the same family violence under paras 8.1 and/or 8.4 of Direction 90; (2) if Direction 90 permits this giving of "repetitious weight" to family violence, para 8.2 is invalid as its operation is irrational, illogical, and legally unreasonable, or as an illegitimate fetter on the discretion of the decision‑maker which is not authorised by s 499(1) of the Act; alternatively, para 8.2 of Direction 90 does not permit family violence to be given weight in the consideration of whether a visa should be granted for reasons other than the protection of the Australian community or the expectations of the Australian community, as para 8.2 would then operate for illegitimate punitive or irrelevant purposes; or (4) if para 8.2 of Direction 90 permits family violence to be given weight in the consideration of whether a visa should be granted for reasons other than the protection of the Australian community or the expectations of the Australian community, para 8.2 is invalid (by which the plaintiff meant ultra vires) as it purports to authorise the decision‑maker to impose extra‑curial punishment on an offender for their offending (which would be beyond the scope of the Act) or to act on an irrelevant basis.

"Repetitious weighing" or "double counting"?

Under Direction 90, a delegate is entitled to give such weight to relevant acts of family violence as the delegate sees fit by reference to paras 8.1, 8.2 and 8.4 (as well as, for that matter, paras 5.2(2); 8.3(1), 8.3(4)(g) and (h); and 9(1)(c) and 9.3, if relevant). In so doing, the fact that the acts of family violence considered under each of the paragraphs are the same does not mean that the delegate's decision is irrational, illogical, or legally unreasonable because the delegate has engaged in "repetitious weighing" or "double counting". These shorthand phrases are apt to mislead. The same facts may be relevant to multiple different considerations. In the case of a matter made a mandatory consideration by a direction under s 499(1) of the Act, the matter to be considered may be described in a multiplicity of ways, such as by reference to a particular context, a particular purpose, or a particular assessment. Weighing the relevance or significance of the same facts by reference to those different considerations does not involve "repetitious weighing" or "double counting" in any illegitimate sense. It is doing no more than the direction, in terms, requires, and the direction is not inconsistent with the Act.

In the present case, it is apparent from the delegate's reasons that the delegate weighed the same circumstances in the different contexts and for the different purposes Direction 90 required – the protection of the Australian community (under para 8.1), the identified concern of the Australian Government of family violence (under para 8.2), and the expectations of the Australian community (under para 8.4). There was no irrational, illogical, or legally unreasonable weighing of the same factor in the same context and for the same purpose twice.

Although the resolution of each case in which an argument to this effect is put will depend on the terms of the applicable direction and the specific reasons of the delegate, care would also be required before an inference was drawn that a decision‑maker had given weight to the same factor in the same context and for the same purpose twice under Direction 90 with the result that the decision is irrational, illogical, or legally unreasonable. Considerations which overlap (such as the consideration of the same acts of family violence in the different contexts of the protection of the Australian community, the views or policies of the Australian Government, and the expectations of the Australian community), by definition, are not wholly coextensive with each other. Weighing the relevance of the same acts of family violence in each different (albeit overlapping) context is not "repetitious weighing" or "double counting", and it would be wrong to conceptualise such a process of reasoning as irrational, illogical, or legally unreasonable.

Ground 3

The plaintiff contends that the delegate misapplied para 8.4 of Direction 90 in that, when weighing the expectations of the Australian community, the delegate was required to consider those expectations in light of the plaintiff's personal circumstances and did not do so.

Delegate's reasons

The delegate noted that the plaintiff had engaged in family violence which, in accordance with para 8.4(2)(a) of Direction 90, raised serious character concerns about the plaintiff. The delegate referred to the substance of para 8.4(2), which says that the Australian community expects that the Australian Government can and should refuse entry to non‑citizens, or cancel their visas, if they raise serious character concerns. The delegate also referred to the substance of para 8.4(3), which says that the expectations of the Australian community apply regardless of whether the non‑citizen poses a measurable risk of causing physical harm to the Australian community. The delegate "proceeded on the basis that the Australian community's general expectations about non‑citizens, as articulated in the Direction, apply in this case". The delegate gave "this consideration significant weight in favour of refusal of [the plaintiff's] visa application".

Failure to consider?

If the delegate was required to weigh the plaintiff's personal circumstances in deciding what ultimate weight to give to the expectations of the Australian community, no inference can be drawn that the delegate did not do so

...

Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision‑maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision‑maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case".

Conclusions and orders:-

The grounds of the plaintiff's application are not sustainable.

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (28 November 2023)

Intro: This is an appeal from the Full Court of the Federal Court of Australia.

Facts:

The plaintiff is a stateless Rohingya Muslim. He arrived in Australia by boat in 2012 and was taken into immigration detention on arrival under s 189 of the Migration Act 1958 (Cth) ("the Migration Act"). He was granted a bridging visa in 2014.

In 2016, the plaintiff pleaded guilty in the District Court of New South Wales to a sexual offence against a child. He was sentenced to imprisonment for five years with a non‑parole period of three years and four months. Upon his release from criminal custody on parole in 2018, he was taken again into immigration detention under s 189(1) of the Migration Act.

Whilst still in criminal custody, the plaintiff had applied for a protection visa. His application was considered by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs ("the Minister") in 2020. The delegate found him to have a well‑founded fear of persecution in Myanmar. Having regard to his conviction, however, the delegate found there to have been reasonable grounds for considering him a danger to the Australian community. On the basis of that finding, the delegate found that the plaintiff failed to satisfy the criterion for a protection visa set out in s 36(1C)(b) of the Migration Act and for that reason refused to grant him a protection visa.

The Administrative Appeals Tribunal affirmed the decision of the delegate following which the Federal Court of Australia dismissed an application for judicial review of the decision of the Tribunal in 2022. That final determination of his visa application engaged the duty imposed on officers of the Department of Home Affairs ("the Department") by s 198(6) of the Migration Act to remove the plaintiff from Australia as soon as reasonably practicable. Also in 2022, the plaintiff wrote to the Minister requesting his removal. That request engaged another duty imposed on officers of the Department by s 198(1) of the Migration Act to remove the plaintiff from Australia as soon as reasonably practicable.

By reason of the finding that the plaintiff had a well‑founded fear of persecution, and in the absence of any relevant change of circumstances, the operation of s 197C(3) of the Migration Act was such that s 198(1) and (6) did not require or authorise an officer to remove him to Myanmar. In any event, he does not have any right of entry to or residence in Myanmar. The plaintiff had relatives in Saudi Arabia and in Bangladesh. But there was no real prospect of him being provided with a right to enter or reside in either of those countries. No country in the world has an established practice of offering resettlement to persons in Australia who have been convicted of sexual offences against children and the Department had never successfully removed from Australia any person convicted of a sexual offence against a child to a country other than a country which recognised the person as a citizen.

Against that background, on 5 April 2023 the plaintiff commenced a proceeding against the Minister and the Commonwealth of Australia in the original jurisdiction of the High Court under s 75(v) of the Constitution and s 30 of the Judiciary Act 1903 (Cth). The plaintiff claimed in the proceeding that his continuing detention was not authorised by ss 189(1) and 196(1) of the Migration Act. He claimed that to be the result of the proper construction of those provisions. He claimed in the alternative that those provisions contravened Ch III of the Constitution.

Issue:-

1) Whether application for leave to reopen statutory construction holding in Al-Kateb should be granted.

2) Whether application for leave to reopen constitutional holding in Al‑Kateb v Godwin should be granted and whether constitutional holding in Al‑Kateb should be overruled?

Consideration:-

Al-Kateb

Since they were inserted on 1 September 1994, Divs 7 and 8 of Pt 2 of the Migration Act have provided for the mandatory detention and mandatory removal from Australia of an "unlawful non-citizen", being someone who is not an Australian citizen and who does not hold a valid visa permitting them to travel to and enter Australia or to remain in Australia. The basic structure and the text of the critical provisions of Divs 7 and 8 have not altered since then. The critical provisions operate by imposing duties on "officers", including officers of the Department.

Within Div 7, s 189(1) imposes a duty on an officer to detain a person who the officer "knows or reasonably suspects ... is an unlawful non-citizen". Critically, the duration of the detention authorised and required by s 189(1) is governed by s 196(1), which provides that the unlawful non‑citizen "must be kept in immigration detention until" the occurrence of one of several specified events. One of those events, specified in s 196(1)(c), is that "he or she is granted a visa". Another, specified in s 196(1)(a), is that "he or she is removed from Australia under [s] 198".

Ten years after the insertion of Divs 7 and 8 of Pt 2 into the Migration Act, in Al‑Kateb v Godwin, the High Court examined the application of ss 189(1) and 196(1) to an unlawful non‑citizen in respect of whom there was no real prospect of removal under s 198(1) or s 198(6) becoming practicable in the reasonably foreseeable future. The ratio decidendi comprised two holdings. First, by majority (McHugh, Hayne, Callinan and Heydon JJ, Gleeson CJ, Gummow and Kirby JJ dissenting), the Court held that ss 189(1) and 196(1) on their proper construction applied to require the continuing detention of such a person. Secondly, and also by majority (McHugh, Hayne, Callinan and Heydon JJ, Gummow J dissenting, Gleeson CJ and Kirby J not deciding), the Court held that ss 189(1) and 196(1) as so applied did not contravene Ch III of the Constitution. Al‑Kateb was immediately applied to uphold the continuing detention of an unlawful non-citizen in materially identical circumstances in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji.

No reopening of the statutory construction holding in Al-Kateb

Despite Gummow and Bell JJ's criticism in Plaintiff M47/2012 of the construction of ss 189(1) and 196(1) adopted by the majority in Al‑Kateb, the process of reasoning which led the majority in Al‑Kateb to that construction cannot be said to have overlooked any principle of statutory construction on which the minority in Al‑Kateb relied or on which the plaintiff and amici placed emphasis in argument on the special case. The difference between the majority and minority in Al‑Kateb was in the application of those principles of statutory construction to the enacted text of ss 189(1) and 196(1), and in particular the weight to be given to textual considerations in ascertaining the meaning, which Hayne J in the majority described as "intractable".

...

In 2021, the considerations of legislative reliance and implicit legislative endorsement identified by Kiefel and Keane JJ in 2013 were reinforced by the Parliament's assumption as to the correctness of the Al‑Kateb construction which informed the insertion of s 197C(3) by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth).

To all of those considerations of legislative reliance and implicit legislative endorsement must now also be added the decision in The Commonwealth v AJL20. There the majority (Kiefel CJ, Gageler, Keane and Steward JJ) endorsed key aspects of the reasoning of the majority on the issue of statutory construction in Al‑Kateb. The majority did so in referring to the statutory construction holding in Al‑Kateb, and saying that the word "until" in conjunction with the word "kept" in s 196(1) indicates that detention under s 189(1) is "an ongoing or continuous state of affairs that is to be maintained up to the time that the event (relevantly, the grant of a visa or removal) actually occurs".

The cumulation of these considerations leads inexorably to the conclusion, reflected in the answers stated in the order made at the end of the hearing of the special case, that leave to reopen the statutory construction holding in Al‑Kateb should not be granted.

Reconsidering Al-Kateb in light of the Lim principle

The question whether the constitutional holding in Al‑Kateb should be overruled is to be determined by reference to the consistency of that holding with the Lim principle as stated in Lim itself and as understood and applied in subsequent cases.

Expressed at an appropriate level of generality, the principle in Lim is that a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose. In other words, detention is penal or punitive unless justified as otherwise.

...

Consistency with the Lim principle accordingly entails that "a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved".

It is appropriate to identify the point of departure between our reasoning and the reasoning of the majority in Al‑Kateb in support of the constitutional holding. In Al‑Kateb, McHugh J observed:-

"A law requiring the detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive."

This Court is unanimous in concluding that this is an incomplete and, accordingly, inaccurate statement of the applicable principle.

The approach of six members of the Court

This statement of the scope of the power to detain aliens differs from that in Lim, which, as noted, has become authoritative. The application of the principle in Lim, although ultimately directed to a single question of characterisation (whether the power is properly characterised as punitive), requires an assessment of both means and ends, and the relationship between the two. Applying that principle in circumstances where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the "purpose of the detention is to make the alien available for deportation" or "to prevent the alien from entering Australia or the Australian community" pending the making of a decision as to whether or not they will be allowed entry.

Applying the constitutional limitation

If Al‑Kateb was to be reopened and overruled, the defendants made a correct and important concession. The plaintiff having discharged an initial evidential burden of establishing that there was reason to suppose that his detention had ceased to be lawful by reason that it transgressed the applicable constitutional limitation on his detention, the defendants conceded that they bore the legal burden of proving that the constitutional limitation was not transgressed. The concession was correct having regard to the coincidence of two fundamental principles. The first, a principle of common law reflected in the traditional procedure for obtaining a writ of habeas corpus, is that where a person in the detention of another adduces sufficient evidence to put the lawfulness of that detention in issue, the legal burden of proof shifts to the other to establish the lawfulness of that detention. The second, a principle of constitutional law, is that "it is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation".

To establish that ss 189(1) and 196(1) of the Migration Act validly applied to authorise continuation of the plaintiff's detention, the defendants were accordingly required to prove that there existed a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. Whilst the proof was required to be to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate in a civil proceeding where individual liberty is in issue, the prospective and probabilistic nature of the fact in issue (that is, the fact of a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future) would have the potential to be confused were the standard of proof to be "on the balance of probabilities".

...

The necessary conclusion of fact is that by the end of the hearing there was, and had been since 30 May 2023, no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future. It followed from that conclusion of fact that ss 189(1) and 196(1) of the Migration Act did not validly apply to authorise the continuation of the plaintiff's detention then and had not validly applied to authorise the plaintiff's detention since 30 May 2023.

Consequence of invalidity for the liberty of the plaintiff

The consequence of ss 189(1) and 196(1) of the Migration Act not validly applying to authorise the continuation of the plaintiff's detention at the end of the hearing on 8 November 2023 is that the sole statutory basis relied on by the defendants for the continuation of his detention fell away and the plaintiff was entitled to his common law liberty.

Release from unlawful detention is not to be equated with a grant of a right to remain in Australia. Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198. Issuing of a writ of habeas corpus would not prevent re‑detention of the plaintiff under ss 189(1) and 196(1) of the Migration Act in the future if, and when, a state of facts comes to exist giving rise to a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future. Nor would grant of that relief prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.

For completeness, it should be recorded that there was no issue between the parties that the invalidity of ss 189(1) and 196(1) of the Migration Act in their application to authorise the plaintiff's detention in circumstances found to contravene the applicable constitutional limitation cannot affect the validity of those provisions in their application to authorise detention in other circumstances.

Conclusion:-

It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:

(a) the plaintiff's detention was unlawful as at 30 May 2023; and

(b) the plaintiff's continued detention is unlawful and has been since 30 May 2023.

A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.

Benbrika v Minister for Home Affairs [2023] HCA 33 (1 November 2023)

Intro:-

This is a proceeding commenced in the Federal Court of Australia under Section 39B Judiciary Act 1903 (Cth) and removed into the High Court by order under Section 40 of that Act.

Facts:-

The applicant, Mr Benbrika, was born in 1960 in Algeria. He was and remains an Algerian citizen.

In 2008, following a trial by jury in the Supreme Court of Victoria, Mr Benbrika was convicted of three offences under Pt 5.3 of the Criminal Code (Cth. He was sentenced to terms of imprisonment of seven years for the first offence, 15 years for the second offence and five years for the third offence.

The Court of Appeal of the Supreme Court of Victoria set aside Mr Benbrika's conviction for the third offence but upheld his convictions for the other two offences.

On 20 November 2020, the Minister for Home Affairs determined in writing pursuant to Section 36D(1) of the Citizenship Act that Mr Benbrika cease to be an Australian citizen. Mr Benbrika subsequently applied for revocation of that determination pursuant to Section 36H of the Citizenship Act. No decision has been made by the Minister on that application.

By operation of s 35(3) of the Migration Act 1958 (Cth) ("the Migration Act"), Mr Benbrika was granted an ex-citizen visa on the purported cessation of his Australian citizenship on 20 November 2020.

Statutory context

Together with s 36B, s 36D is within Subdiv C of Div 3 of Pt 2 of the Citizenship Act. That subdivision is headed "Citizenship cessation determinations". As was recorded in Alexander, the subdivision was inserted by the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth) in partial replacement of the scheme for the cessation of citizenship previously inserted by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth).

Subdivision C is introduced by s 36A. That section provides:

"This Subdivision is enacted because the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia."

The purpose declared by s 36A applies equally to s 36D as to s 36B. "Translated to the level appropriate for analysis of the compatibility of s 36B [or s 36D] with Ch III of the Constitution", as was put in Alexander, the purpose "is properly characterised as one of denunciation and exclusion from formal membership of the Australian community of persons shown by certain conduct to be unwilling to maintain or incapable of maintaining allegiance to Australia".

Like s 36B(1), s 36D(1) is expressed to confer a power on the Minister administering the Citizenship Act which can be exercised only by the Minister personally and without need for the Minister to observe any requirement of natural justice. The power expressed to be conferred by each provision is the power to determine in writing that a person ceases to be an Australian citizen, with the consequence that the person ceases to be an Australian citizen at the time the determination is made. The power expressed to be conferred by each provision is applicable regardless of how the person became an Australian citizen but cannot be exercised if the Minister is satisfied that the person would thereby cease to be a national or citizen of any country.

Whereas a condition of the exercise of the power conferred by s 36B(1) is that the Minister is satisfied that the person has engaged in conduct which satisfies the physical elements of one or more specified offences, a condition of the exercise of the power conferred by s 36D(1) is that the person has been convicted of one or more specified offences in respect of which the person has been sentenced to a specified period or periods of imprisonment. Otherwise, the two powers are conditioned by essentially identical requirements: that the Minister is satisfied that the person's conduct (as found by the Minister in the case of the power conferred by s 36B(1) or to which the conviction or convictions relate in the case of the power conferred by s 36D(1)) demonstrates repudiation of the person's allegiance to Australia; and that the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

Issue:-

The special case is a sequel to Alexander v Minister for Home Affairs. There, Section 36B of the Australian Citizenship Act 2007 (Cth) ("the Citizenship Act") was held invalid on the basis that "it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt" contrary to Ch III of the Constitution. Here, the sole substantive question for determination is whether Section 36D of the Citizenship Act is invalid on the same basis.

Consideration:-

The significance of the reasoning in Alexander

The reasoning of the majority in Alexander which led to the conclusion of the invalidity of Section 36B(1) of the Citizenship Act took as its starting point the canonical statement of principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs that "the adjudgment and punishment of criminal guilt under a law of the Commonwealth" is a "function" which "appertains exclusively to and could not be excluded from the judicial power of the Commonwealth" with the consequence that "Ch III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of Section 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive"

---

As to the nature and severity of the consequences of a purported exercise of power, all members of the majority equated cessation of citizenship with exile or banishment, which they noted had historically been regarded as punishment. The plurality, comprising Kiefel CJ, Keane and Gleeson JJ, with whom Gageler J expressed substantial agreement, described cessation of Australian citizenship as involving the loss of "public rights" of "fundamental importance". Gordon and Edelman JJ each described it, in the language of Warren CJ in Trop v Dulles, as involving "the total destruction of the individual's status in organized society".

---

The effect of Ch III of the Constitution is to make punishment of criminal conduct exclusively judicial even if the punishment is separated from the adjudication of that criminal guilt. Consistently with Ch III, the Commonwealth Parliament cannot repose in any officer of the Commonwealth Executive any function of sentencing persons convicted by Ch III courts of offences against Commonwealth laws. Nor can the Commonwealth Parliament vest in any officer of the Commonwealth Executive any power to impose additional or further punishment on persons convicted by Ch III courts of offences against Commonwealth laws. Section 36D(1) purports to vest such a power to impose additional or further punishment in the Minister.

The absence of an applicable exception

The second pathway put forward by the respondents was that this Court should identify an exception to the Lim principle for this particular function – involuntary denationalisation and deprivation of citizenship as punishment following a conviction – for historical and functional reasons. If such an exception were identified, it would join the very limited category of exceptional cases of permissible punishment outside of Ch III of the Constitution. That submission of the respondents should also be rejected.

Formal answers to questions:-

The questions stated by the parties in the special case and the answers to them are as follows:

(1) Is s 36D of the Citizenship Act invalid in its operation in respect of the applicant because it reposes in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt?
Answer: Yes.

(2) What, if any, relief should be granted to the applicant?

Answer: It should be declared that:

(a) Section 36D of the Citizenship Act is invalid; and
(b) the applicant is an Australian citizen.

(3) Who should pay the costs of the special case?

Answer: The respondents

Young v Chief Executive Officer (Housing) [2023] HCA 31 (1 November 2023)

Intro:-

This is an appeal from the Supreme Court of the Northern Territory

Facts:-

Ms Young was the tenant of residential premises at Ltyentye Apurte, also known as Santa Teresa, an Aboriginal community approximately 85 kilometres from Alice Springs. The Chief Executive Officer (Housing) ("the CEO"), a corporation sole established under the Housing Act 1982 (NT), was the landlord. For 68 months, the premises had no back door in the doorframe.

Ms Young applied to the Tribunal for an order under s 122(1) of the Act that the CEO compensate her for loss or damage she claimed to have suffered because of non-compliance by the CEO with the tenancy agreement. Her application included a claim to be compensated for loss or damage by way of distress and disappointment due to the insecurity she felt because of the CEO's failure to provide a back door in compliance with the term of the tenancy agreement imposed by s 49(1) of the Act.

Taking the view that an external door is not "a security device" within the meaning of s 49(1) of the Act, the Tribunal found no breach of the term of the tenancy agreement specified in that sub-section and on that basis dismissed the application for compensation for non-compliance with it.

On appeal on a question of law to the Supreme Court of the Northern Territory Blokland J set aside so much of the decision of the Tribunal as had dismissed the application for compensation for non-compliance and substituted an order that the CEO pay compensation to Ms Young in the sum of $10,200 in respect of loss or damage identified as "distress and disappointment due to the failure to provide a premises which was secure.

On further appeal to the Court of Appeal of the Supreme Court of the Northern Territory the order made by Blokland J that the CEO pay compensation to Ms Young was set aisde. The Court of Appeal construed s 122(1) of the Act as importing principles of remoteness that limit the assessment of damages for breach of contract at common law. As a result, those principles operated to exclude compensation for distress or disappointment arising from non-compliance with a term of the tenancy agreement other than in consequence of physical inconvenience

Issue:-

Did the Court of Appeal err in construing s 122 of the Act to import common law principles of remoteness?

Consideration:-

Section 122 relevantly provides:-

"(1) Subject to subsection (2), the Tribunal may, on the application of a landlord or the tenant under a tenancy agreement, order compensation for loss or damage suffered by the applicant be paid to the applicant by the other party to the agreement because:

(a) the other party has failed to comply with the agreement or an obligation under this Act relating to the tenancy agreement; or

(b) the applicant has paid to the other party more than the applicant is required to pay to that other party in accordance with this Act and the agreement.

There is no dispute that the "loss or damage" to which reference is made in s 122(1) can extend to non-economic loss and can include non-economic loss in the form of disappointment or distress suffered by a landlord or a tenant as "a normal, rational reaction of an unimpaired mind". There is also no dispute that disappointment or distress of that nature is not "physical injury, pain or suffering" so that an order for compensation in respect of disappointment or distress of that nature is not precluded by s 122(5)(a).

Breach of an obligation made a term of a tenancy agreement, such as the obligation specified in s 49(1), would be remediable in the original jurisdiction of the Supreme Court either in an application for equitable relief or in an action for damages at common law. The assessment of damages in any such action at common law would be governed by common law principles of remoteness. The assessment of damages in any such action would also be governed by s 120, which operates to remove any doubt that common law principles about mitigation of loss or damage on breach of a contract are applicable to a breach of a tenancy agreement.

It is consonant with the legislative objective of ensuring that landlords and tenants are provided with suitable mechanisms for enforcing their rights under tenancy agreements to recognise that s 122 leaves such remedies as may be available to landlords and tenants at common law or in equity untouched and provides an additional mechanism by which landlords and tenants can obtain from the Tribunal statutory compensation the measure of which is provided by the Act itself. Double recovery is avoided by the requirement of s 122(3)(c) that any money that may have been recovered by way of compensation must be taken into account by the Tribunal in determining whether to order compensation under s 122(1).

Compensation in this case

The evident purpose of the obligation specified by s 49(1) of the Act to be a term of a tenancy agreement, with which the CEO as landlord failed to comply, is ensuring that premises occupied by a tenant for the purpose of residency are reasonably secure. For a tenant to be secure in the occupation of premises is for the tenant to reside there free from threat of harm or unwanted access. The feeling of insecurity which Ms Young experienced because of the landlord's failure to provide the residential premises with a back door was the obverse of the security which it was the purpose of that obligation to secure. The connection between the landlord's breach and the distress and disappointment suffered by Ms Young readily satisfied the causal connection required by the word "because" in s 122(1).

Whether or not the distress and disappointment found to have been suffered by Ms Young due to the failure of the CEO to provide the requisite security would have been compensable in an action for damages at common law, Ms Young's distress and disappointment was compensable on application to the Tribunal under s 122(1)(a) of the Act, subject to the Tribunal's consideration of the factors prescribed by s 122(3).

Order:-

The appeal be allowed.

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 (6 September 2023)

Intro:-

This is an appeal from the Full Court of the Federal Court of Australia.

Facts:-

The underlying facts "reveal an extraordinarily long deprivation of the [appellant's] liberty by way of executive detention". The appellant, a citizen of Iran, arrived in Australia by boat in July 2013 and has been in immigration detention ever since, his protection visa application having been finally refused in February 2021

Following the final determination of his visa application in February 2021, the appellant commenced proceedings in the Federal Court of Australia against the Minister for Home Affairs and the Commonwealth of Australia seeking an order of habeas corpus or a writ in the nature of habeas corpus, a declaration that the appellant was falsely imprisoned, and other relief ("the habeas proceeding").He contended that he fell within s 198AD(2) of the Act, which requires that an officer take an "unauthorised maritime arrival" to whom the provision applies, as soon as reasonably practicable, from Australia to a regional processing country

The primary judge made a declaration that s 198AD(2) of the Act applied to the appellant (order 1), and ordered the Secretary to perform, or cause to be performed, the duty under s 198AD(2) of the Act to take the appellant from Australia to a regional processing country as soon as reasonably practicable (order 2) ("the s 198AD mandamus order").

Subsequently, the Minister for Home Affairs exercised the discretionary power in s 198AE of the Act to determine that the duty to remove to a regional processing country under s 198AD did not apply to the appellant ("the s 198AE Determination").About twelve days later, on 10 November 2021, the Commonwealth parties filed notices of appeal to the Full Court of the Federal Court from orders 1 to 5 and 8 of the 13 October 2021 order.

Full Court of the Federal Court

Before the Full Court, the Commonwealth parties made submissions on what they described as the "preliminary issue" of the utility of the appeals. The Commonwealth parties accepted that, irrespective of the outcome of the appeals and from the time of the s 198AE Determination, the duty in s 198(6) of the Act was applicable, and the s 198AD mandamus order and the home detention order ceased to have effect. However, the Commonwealth parties submitted that the appeals were not futile for two reasons. First, the issues in the appeals had a "substantive overlap" with the s 198 mandamus proceeding.

And second, even if the substantive issues were rendered moot, the Commonwealth parties emphasised that the Full Court retained a discretion to hear the appeals on the basis that there was a significant public interest because, as at 14 October 2021, there were approximately 130 persons potentially affected by the primary judge's conclusion that the applicable duty for persons in the appellant's position was the s 198AD duty and there were a number of proceedings on foot in which the issue of the Federal Court's power to make home detention orders was being agitated.

In its reasons for judgment, the Full Court considered the "preliminary issue" as a question of discretion, not jurisdiction. Relevantly, the Full Court held that the s 198AE Determination had "effectively" quelled the controversy between the parties about the application of s 198AD to the appellant and that this meant that "the order in the nature of mandamus was rendered inapplicable, and there was no basis for the [home detention order] to be carried into effect".

However, while the Full Court accepted that the s 198AD mandamus order had been rendered moot, the Full Court did not accept the appellant's submission that the primary judge's orders were entirely "arid" in respect of any effect on the appellant's own position. The Court observed that the appellant still had the s 198 mandamus proceeding before the primary judge, in which he was seeking mandamus to compel his removal to a country other than Iran, that "a decision about his status under the ... Act, and which removal provisions apply to him, may be relevant to the issues between the parties in relation to any outstanding relief"[16], and that the Federal Court's ability to make a home detention order "will also clarify some likely aspects of the proceeding still before the primary judge" (emphasis added).

The second reason given by the Full Court as to why it should deal with the Commonwealth parties' substantive arguments and proceed to determine the appeals was that the primary judge's orders and reasoning had "been employed in litigation relating to other individuals in similar circumstances, and other justices of [the Federal Court] have been invited to follow it".

The Full Court said:-

"Once that occurs, given the [Commonwealth parties'] position on the issues, it would place another single judge in a position of deciding if they are convinced the primary judge's orders and reasoning are wrong ... These appeals are a suitable vehicle to avoid single judges being faced with those issues of comity, which are not always straightforward." (emphasis added)

Issue:-

Where at time of appeals primary judge's orders did not have any operative legal effect, was there was a "matter" within meaning of Ch III of Constitution at time Full Court made orders determining appeals?

Consideration:-

What is a matter?

It is trite that federal jurisdiction arising from the subject matters in ss 75 and 76 of the Constitution is limited to deciding "matters". The original and appellate jurisdiction of the Federal Court is created by legislation passed under s 77(i) of the Constitution. Section 77(i) empowers Parliament to make laws, with respect to any of the matters mentioned in ss 75 and 76, defining the jurisdiction of any federal court other than the High Court. The need for there to have been a "matter" before the Full Federal Court for it to have had jurisdiction in the appeals was not in dispute[19].

It is well established that a "matter" does not mean a legal proceeding between parties or a bare description of a subject matter that falls within a head of federal judicial power in ss 75 and 76 of the Constitution. Rather, "matter" has two elements: "the subject matter itself as defined by reference to the heads of jurisdiction [in ss 75 and 76], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy". There was no dispute in this case that the first element was satisfied.

As to the second element, as was most recently affirmed in Unions NSW v New South Wales ("Unions [No 3]"), "[e]xceptional categories aside, there can be no 'matter' within the meaning of Ch III of the Constitution unless 'there is some immediate right, duty or liability to be established by the determination of the Court' in the administration of a law and unless the determination can result in the Court granting relief which both quells a controversy between parties and is available at the suit of the party seeking that relief". The requirement to identify some "immediate right, duty or liability" to be established by the determination of the court "reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy". That requirement applies in both original and appellate jurisdiction.

Unions [No 3] was a matter in original jurisdiction. The concept of "matter" has been most often analysed in the context of original jurisdiction. That is unsurprising because, usually, the existence of a matter on appeal is uncontroversial. That requires explanation.

An appeal is against orders, not reasons for judgment. The respective rights, duties or liabilities of the parties have been determined by the orders that have been made by the court below, including, usually, an order as to costs. There has been an exercise of judicial power; the whole or part of the controversy between the parties has been quelled. Where a final judgment has been rendered, the rights and obligations in controversy, as between those persons, cease to have an independent existence: they "merge" in the final judgment and no action can be brought upon the extinguished rights and obligations. However, orders may be set aside on appeal where the primary judge is shown to have erred. An appellate court is then obliged, unless the matter is remitted for rehearing, to "give the judgment which in its opinion ought to have been given in the first instance".

On appeal, therefore, the question is not whether the party can establish the claimed legal right, duty or liability, as that question has been determined. The question is not whether the party continues to have the interest necessary to obtain relief, because that question has been overtaken by the grant of relief or by the refusal of relief. The question on appeal and for determination on appeal is whether the orders of the primary judge should be affirmed, varied or reversed – that is, whether the appeal should be allowed and, if so, what orders should be made in the place of the primary judge's orders. But the appellate court's supervisory function over the exercise of original jurisdiction by the primary judge is not an end in itself. The second element required to form a "matter" still applies – there must be a controversy over some immediate right, duty or liability. Usually, there is a live controversy because the orders of the primary judge continue to have effect in determining the parties' rights, duties or liabilities, unless set aside on appeal. In seeking to appeal the orders made at first instance, one or more of the parties are seeking to challenge the continuing effect of the orders on the determination of their respective rights, duties or liabilities. As will be explained, that critical feature – any controversy over the continuing effect of the orders on the parties' rights, duties or liabilities – was absent in the appeals before the Full Federal Court.

There was no matter in the Full Federal Court

The appellant submitted before this Court that there was no "matter" before the Full Federal Court because the orders that the Commonwealth parties sought to appeal had no operative legal effect by the time the Full Court determined the appeals. At the time the appeals were filed, Nauru had informed Australia it would not accept the appellant and the Minister had voluntarily engaged s 198AE such that s 198AD did not apply to the appellant. Since the home detention order was dependent on the s 198AD mandamus order, the events rendering the s 198AD mandamus order inoperative similarly made the home detention order inoperative. Even if there was a "matter" when the appeals were filed, there ceased to be a "matter" from the moment during the hearing when the Commonwealth parties undertook not to seek the costs of the trial or the appeals. Those submissions should be accepted.

Conclusion:-

The Full Court did not have jurisdiction to determine the appeals. The appeals to this Court should be allowed with costs.

Vunilagi v The Queen [2023] HCA 24 (8 August 2023)

Facts:

The appellant, with three co-accused, was charged with offences against ss 54 and 60 of the Crimes Act 1900 (ACT) ("the Crimes Act (ACT)"). His trial in the Supreme Court of the Australian Capital Territory was listed to commence on 7 September 2020. On 13 August 2020, Murrell CJ made an order under s 68BA(3) of the Supreme Court Act 1933 (ACT) that the proceeding be tried by judge alone.

The background to the enactment of s 68BA and the order made by Murrell CJ was the onset of the COVID‑19 pandemic and the requirements of public health emergency declarations, which had an impact on jury trials. In late March 2020, the Supreme Court directed that jury trials would proceed in limited numbers and subject to social distancing requirements[2], but subsequently directed that jury trials would not proceed until further notice[3].

Relevant legislation

Relevant to this appeal, the Emergency Response Act added s 68BA, which was in part in these terms:

"(1) This section applies to a criminal proceeding against an accused person for an offence against a territory law if the trial is to be conducted, in whole or in part, during the COVID-19 emergency period.

(2) To remove any doubt, this section applies—

(a) to a criminal proceeding—

(i) that begins before, on or after the commencement day; and

(ii) for an excluded offence within the meaning of section 68B(4); and

(b) whether or not an election has been made by the accused person under section 68B, including before the commencement day.

(3) The court may order that the proceeding will be tried by judge alone if satisfied the order—

(a) will ensure the orderly and expeditious discharge of the business of the court; and

(b) is otherwise in the interests of justice.

(4) Before making an order under subsection (3), the court must—

(a) give the parties to the proceeding written notice of the proposed order; and

(b) in the notice, invite the parties to make submissions about the proposed order within 7 days after receiving the notice."

On 18 June 2020, notice was given to the appellant and his co-accused (under s 68BA(4)), who were then invited to make submissions because Murrell CJ proposed to make an order under s 68BA(3). The appellant made submissions and opposed the order. By the time of the hearing, his co-accused supported the making of the order. Her Honour found that it was in the interests of justice that the trial proceed before a judge alone and, as noted at the outset of these reasons, made an order accordingly. In relation to the matter stated in s 68BA(3)(a), her Honour found that the trial could not proceed as a jury trial in accordance with social distancing requirements given, in particular, the number of legal representatives. The length of the trial rendered greater the likelihood of delays being caused as a result of COVID‑19 testing requirements and constraints. Her Honour considered that it was in the interests of the complainant, the witnesses and the accused that the matter be resolved expeditiously, noting that three accused were detained in custody.

Following his conviction, the appellant appealed to the Court of Appeal. He argued that his trial miscarried on the basis that s 68BA was invalid. The Court of Appeal dismissed the appeal.

Issues:-

a) Did s 68BA, in its continuing operation, contravene the limitation derived from this Court's decision in Kable v Director of Public Prosecutions (NSW); and

b) Is the section inconsistent with the requirement in s 80 of the Constitution that the appellant's mode of trial be by jury.

Consideration:-

The Kable principle

It is not in issue that laws enacted by the Legislative Assembly for the Australian Capital Territory which affect the functions and processes of the courts are subject to the Kable principle. The principle for which Kable stands, being the same for the courts of a Territory as it is with respect to courts of the States, is that:-

"because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid".

The appellant's case is that the function given to the Supreme Court by s 68BA(4) impaired its institutional integrity by departing to a significant degree from the processes which characterise the exercise of judicial power. As noted above, the appellant focuses only upon what was involved in the process prescribed by sub-s (4). The appellant does not challenge the process undertaken under s 68BA(3).

The constitutional flaw which the appellant identifies in s 68BA, as relevant to the Kable principle, was in the "gatekeeping function" given to a judge under s 68BA(4) to determine the persons, from a relevantly identical class, to be subject to the exercise of the judicial function under sub-s (3). By contrast to the function under sub-s (3), the application of the gatekeeping function in sub-s (4) was inscrutable, the appellant submits. It exposed some, but not all, persons to the risk of losing a jury trial. This latter submission appears to be based upon an incorrect premise that s 80 confers something in the nature of a personal right to a trial by jury but this may be put to one side.

Section 68BA was general in its application. By s 68BA(1) and (2) it applied to all criminal proceedings where the trial was to be conducted during the COVID‑19 emergency period. Section 68BA(3) was central to the section and its purpose. It provided the power for the Supreme Court to determine if a criminal proceeding was to be tried by a judge alone. It was expressly subject to satisfaction of the two conditions that such an order: (a) would ensure the orderly and expeditious discharge of the business of the Court; and (b) was otherwise in the interests of justice. Section 68BA(4) added a further condition to the exercise of that power. It required that before an order for a judge alone trial was made: (a) a notice be given to the parties of the proposed order; and (b) the parties be invited to make submissions about the proposed order.

Properly construed, sub-ss (3) and (4) operated together. Far from operating as a "gatekeeping" function, sub-s (4) is to be understood as facilitative of and ancillary to the power which was to be exercised under sub-s (3). The function of the sub-sections was more in the nature of case management. The appellant does not deny this. By these means the Court was able to manage its criminal caseload during a public health emergency whilst at the same time ensuring that the interests of justice were served.

The function involved in 68BA(4) was not one to consider which criminal proceedings might be a candidate for an order under sub-s (3). It did not involve any assessment or evaluation of that kind. Its sole criterion was the circumstance that an order under sub-s (3) was proposed. As soon as such a proposal was made the Court came under a duty to provide the notice and the invitation referred to in sub-s (4).

The evident purpose of s 68BA(4), as the Explanatory Statement confirms, was to provide procedural fairness to any person who might be affected if the order proposed to be made under sub-s (3) was made. It ensured that no accused person would have their mode of trial altered without first being given notice of that proposal and the opportunity to be heard with respect to it. The appellant accepts that procedural fairness is required if a court's procedure can be said to conform to the Kable principle.

Ground 2: Section 80 of the Constitution

Section 80 of the Constitution, which appears in Ch III, provides in relevant part that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury ...". The offences in question here were against ss 54 and 60 of the Crimes Act (ACT). The first question which arises with respect to s 80 of the Constitution, the appellant accepts, is whether they are laws of the Commonwealth. The appellant also raises a second and alternative question. It is whether the reference in s 80 to "any law of the Commonwealth" includes a law made by the legislature of a territory. The answer to both questions is "no".

Conclusion:-

Appeal is dismissed.

CCIG Investments Pty Ltd v Schokman [2023] HCA 21 (2 August 2023)

Intro:-

This is an appeal from the Supreme Court of Queensland

Facts:-

In late 2016 the respondent, Mr Schokman, commenced employment with the appellant at Daydream Island Resort and Spa as a food and beverage supervisor. The island is part of the Whitsunday Islands, which are situated off the coast of Queensland. His employment contract contained a clause which stated "[a]s your position requires you to live on the island, furnished shared accommodation located at Daydream Island Resort and Spa will be made available to you while you are engaged in this position at a cost of $70 per week".

The contract also referred to a tenancy agreement and a number of other documents, such as an employee handbook, policies, practices and procedures, and Staff Village Regulations. Other than the contract itself, none of these documents were put into evidence, although the trial judge, Crow J, accepted that they had existed. It would seem that many documents were lost as a result of a cyclone which later affected the island.

Initially Mr Schokman was provided with a room to himself, but shortly thereafter a new worker, Mr Hewett, moved in and shared the accommodation with Mr Schokman. Mr Hewett's contract of employment was not in evidence. The case was conducted on the basis that Mr Hewett's contract of employment, so far as it related to accommodation, was in the same terms as Mr Schokman's contract. Both men worked at a restaurant within the resort. Mr Schokman held the superior position as supervisor; Mr Hewett was a team leader.

In the late evening of 6 November 2016, Mr Schokman spent some time at the staff bar. Mr Hewett came to the bar after finishing work at the restaurant. Mr Schokman observed Mr Hewett have a few drinks, but Mr Hewett did not seem overly intoxicated. Mr Schokman left the bar at approximately 1:00 am and returned to his room. Mr Hewett followed shortly afterwards. Mr Hewett was visibly upset and began complaining about his work environment and told Mr Schokman that he had issues with the management team. Mr Schokman said that he did not wish to discuss work issues at home and that they could talk about them at work the following day. Mr Hewett said that he would let Mr Schokman get some sleep and he left the unit, taking some drinks with him.

Mr Hewett returned at about 3:00 am. Mr Schokman heard him vomiting in the bathroom and then walking around whilst hiccupping. Mr Schokman went back to sleep. He was woken about 30 minutes later in a distressed condition and unable to breathe. Mr Hewett was standing over Mr Schokman's bed with his shorts pulled down and his penis exposed. He was urinating on Mr Schokman, who was inhaling the urine and choking. Mr Schokman yelled at Mr Hewett, who continued urinating on him for a short period of time and then stepped away. Mr Hewett went into the bathroom, and then came out and apologised to Mr Schokman. When Mr Schokman attempted to leave the room, Mr Hewett stood in front of him and apologised again.

Mr Schokman brought proceedings against the appellant. He claimed damages on two alternative bases. In the first place, he claimed damages based on a breach of the appellant's duty of care owed to him as an employee. The alternative claim was that the appellant was vicariously liable as employer for the negligent act of its employee, Mr Hewett. Both claims failed.

The claim for vicarious liability was the subject of an appeal to the Court of Appeal, and is the subject of this appeal. In some respects, however, the argument for Mr Schokman reflects a case of a duty of care owed by his employer to him. This may be seen especially in its focus on the position in which Mr Schokman was placed by the employment, rather than attention being directed to the position of Mr Hewett, and the connection between Mr Hewett's employment and his tortious act as relevant to vicarious liability.

The judgments below

The trial judge did not accept that the actions of Mr Hewett were committed in the course of his employment with the appellant[1]. His Honour considered that the relevant enquiry was as to whether there was a connection or nexus between the employment enterprise and the wrong that justified the imposition of vicarious liability on the employer for the wrong. Whilst his Honour accepted that the occasion for the tort committed by Mr Hewett arose out of the requirement of shared accommodation, his Honour did not consider that it was a fair allocation of the consequences of the risk arising to impose vicarious liability on the employer for the drunken misadventure of Mr Hewett with respect to his toileting. There was no history of Mr Hewett becoming intoxicated and nothing which would have put the employer on notice that Mr Hewett may have engaged in what was bizarre conduct[2].

The Court of Appeal allowed Mr Schokman's appeal[3]. McMurdo JA (Fraser and Mullins JJA agreeing) considered that the circumstances of this case were analogous to those in Bugge v Brown[4], where the employer had been held vicariously liable for the acts of the employee by reference to the terms of his employment. It was a term of Mr Hewett's employment that he reside in the staff accommodation and more particularly in the room assigned to him. He was occupying that room as an employee pursuant to, and under the obligations of, his employment contract, not as a stranger as referred to in Bugge v Brown[5]. It followed that there was the requisite connection between the employment and the employee's actions[6].

Issue:-

Was Mr. Hewett's wrongful act in course or scope of employment?

Consideration:-

In the course or scope of employment

For an employer to be held liable for the tort of an employee the common law requires that the tortious act of the employee be committed in the course or scope of the employment. In Prince Alfred College Inc v ADC this was described as an essential requirement of the common law. In Bugge v Brown, Isaacs J referred to it as a rule of the law. The necessity for it, as providing the parameters or outer limits of vicarious liability, has never been doubted. The principle upon which the rule is based is that it is just to make the employer, whose business the employee is carrying out, responsible for injury caused to another by the employee in the course of so acting, rather than to require that the other, innocent, party bear their loss or have only the remedy of suing the individual employee.

The common law of Australia adheres to the rule that the employee's wrongful act be done in the course or scope of employment in order for liability to attach to the employer. The rule has the advantage of being objective and rational, which probably explains why it has endured.

The question whether a tortious or other wrongful act was committed in the course or scope of employment depends on the circumstances of the particular case. Although this may be stated in simple terms, the reality is that in many cases the resolution of that question can prove difficult. As the principal joint judgment said in Prince Alfred College, the course or scope of employment "is to some extent conclusionary and offers little guidance as to how to approach novel cases". This is not a novel case: "[i]t is the nature of that which the employee is employed to do on behalf of the employer that determines whether the wrongdoing is within the scope of the employment". That is, "[i]t is the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment". This enquiry requires consideration of "the conduct of the parties subsequent to the contract that establishes their relationship, especially the conduct of the person whose actions have caused the injury". Aspects of the course or scope of employment may be functional, geographical or temporal.

Whether an act was committed in the course or scope of employment is not determined by reference to whether the tortious employee's act can be said to have been authorised by the employer. An unauthorised, intentional or even criminal act may be committed in the course or scope of employment, and therefore render the employer liable. In that sense, the rule may have a broad operation. On the other hand, the law also recognises that it would be unjust to make the employer responsible for every act which the employee chooses to do, as Isaacs J said in Bugge v Brown. Most relevantly, an act done when the employee was on a "frolic of [their] own" will not attract liability. Consistently with the policy of the law, an employer should not be held liable for acts totally unconnected with the employment.

Where no more can be pointed to than that the employment provides an opportunity for the employee's wrongful act to take place, the connection with the employment is tenuous. Such a circumstance is to be distinguished from that where an employee is placed in a special position by reason of the employment so that the act in question may be seen as one to which the ostensible performance of the employer's work by the employee "gives occasion", to adopt the words of Dixon J in Deatons Pty Ltd v Flew. In such a circumstance the requisite connection would be present.

In Prince Alfred College, it was explained that in determining whether vicarious liability arises for an act of sexual abuse of a child that took place in a school or other institution, regard may be had to any special role the employer has assigned to the employee. Features of the employment such as authority, power, trust, control and the ability to achieve intimacy should be considered. Clearly a role embodying features of this kind may point to a strong connection between the employment and the wrongful act. The employment may be seen to provide more than a mere opportunity for the act to take place; it may provide the very occasion for it.

An analogy with Prince Alfred College?

Mr Schokman sought to draw an analogy between the circumstances in Prince Alfred College and those arising from the shared accommodation in his case. He contended that his compulsory housing with Mr Hewett made him vulnerable because he was required to sleep in a setting which was intimate.

The argument put for Mr Schokman misapprehends what was said in Prince Alfred College. In the passage from that case on which the argument relies, it was said that the appropriate enquiry concerning the sexual abuser was whether his role as a housemaster placed him in such a position of power and intimacy that the performance of his role could be said to give the occasion for his wrongful acts such that they could be said to have been committed in the course or scope of the employment. No such enquiry is presented by the circumstances of this case. Mr Hewett was not assigned any special role concerning Mr Schokman and no part of what Mr Hewett was employed to do was required to be done in the accommodation.

The most that could be said to arise from the circumstance of shared accommodation was that it created physical proximity between the two men. It therefore provided the opportunity for Mr Hewett's drunken actions to affect Mr Schokman. But, as has been seen, the cases hold that mere opportunity provides an insufficiently strong connection with the employment to establish vicarious liability.

An analogy with Bugge v Brown?

Mr Schokman also contended that an analogy might be drawn between this case and the case of Bugge v Brown. The two circumstances which he identifies as common to both cases are that the tortious act of the employee occurred whilst he was on a break from his employment and that each employee was fulfilling the requirements of his employment when carrying out the tortious act.

In the present case, Mr Hewett was at leisure and not at his place of work when he committed the tortious act. He was on a "break" only in the sense that it occurred outside the carrying out of his duties or in the period between carrying them out. The functional, geographical and temporal aspects of Mr Hewett's course or scope of employment were absent. In Bugge v Brown, the employee's act, lighting a fire, was in preparation for the employee's midday meal whilst working remotely. It occurred whilst he was carrying out his work. These comparisons may be put to one side.

Central to the case in Bugge v Brown was that the act of lighting the fire was itself a requirement of, and authorised by, the employment. By contrast in this case, Mr Hewett could only be said to be acting in accordance with his employment contract by sharing the accommodation provided for and being present in it. As has been explained, that does not provide a proper connection to the employment.

Isaacs J held it to be beyond question that the cooking of the meal was "intimately connected" with the performance of the day's task. The cooking of the meal by the employee was done "in the line of [his] employment". He was not on a "frolic of his own" in cooking the meal and that act was not so remote from the employment as directed that the employee could be regarded as a stranger in doing so. The most that could be said was that he lit the open fire in the paddock in disregard of an instruction.

Conclusion:-

The appeal should be allowed with costs. 

Disorganized Developments Pty Ltd v South Australia [2023] HCA 22 (2 August 2023)

Intro:-

This is an appeal from the Supreme Court of South Australia.

Facts:-

Section 83GD(1) of the Criminal Law Consolidation Act 1935 (SA) ("the 1935 Act") makes it an offence for a participant in a criminal organisation to enter or attempt to enter a "prescribed place". For the purposes of that offence, the Hells Angels motorcycle club is a criminal organisation. The second and third appellants, Mr Stacy and Mr Taylor, are members of that motorcycle club and, accordingly, they are participants in a criminal organisation for the purposes of s 83GD(1).

This appeal from a decision of the Court of Appeal of the Supreme Court of South Australia concerns the validity of two Regulations[3] ("the Cowirra Regulations") which each purport to declare a portion of land in Cowirra, east of Adelaide in South Australia ("the Cowirra land"), as a "prescribed place" for the purposes of the 1935 Act. The first appellant ("Disorganized Developments") is the registered proprietor of the two parcels of land that comprise the Cowirra land. Mr Stacy and Mr Taylor are the directors and only shareholders of Disorganized Developments and are occupiers of the Cowirra land.

Issue:-

Is the declaration power conditioned by a duty to afford procedural fairness to the appellants as owners and occupiers of the Cowirra land? Was the presumption displaced by statute?

Consideration:-

Appellants' rights and interests in the Cowirra land

As owners and occupiers, the appellants have property rights in the Cowirra land. Mr Stacy and Mr Taylor seek access to the Cowirra land in order to exercise their rights as occupiers including, from time to time, to reside on the land. Disorganized Developments also has interests in accessing the Cowirra land through its directors in order to maintain it and otherwise to discharge its obligations as owner of the land. The obligations include statutory obligations under various South Australian statutes and regulations and common law duties to protect invitees and trespassers from harm or injury arising from conditions on the land.

Decisions made in the exercise of statutory powers that affect the rights of individuals with respect to property are a category of cases that has a long history of attracting a duty of procedural fairness as a matter of "fundamental justice", "long-established doctrine" and a "deep-rooted principle of the law", subject to displacement by Parliament through express words or necessary implication in the relevant statute. Even so, the Court of Appeal found that the declaration power was not conditioned by a duty of procedural fairness.

Court of Appeal's reasons

In the Court of Appeal, the appellants contended that they were owed procedural fairness as owners and occupiers and as members of the Hells Angels motorcycle club as the criminal organisation associated with the Cowirra land. In this Court, the appellants relied only on their rights and interests as owners and occupiers.

The Court of Appeal acknowledged that the effect of declaring land to be a prescribed place may be to interfere severely with rights and obligations of ownership and occupation, and accepted that the appellants' rights were directly affected in a manner sufficient to give them standing to challenge the Cowirra Regulations, but did not consider that this was determinative of the question whether procedural fairness was required.

The Court of Appeal concluded that the legislature did not intend that there should be an obligation to afford procedural fairness to an owner or occupier of land, whether or not the owner or occupier is a participant in a criminal organisation, having regard to: (1) the "general and preventative policy [of Div 2] of disruption of an apprehended sphere of criminal activity", which the Court considered may be undermined by a duty of procedural fairness; (2) the incidental nature of the interests of owners and occupiers to the prohibition in s 83GD(1), and the lack of any necessary correspondence between these interests and interests of persons to whom the prohibition is directed; (3) the indeterminacy of the class of persons who are the subject of s 83GD(1), that is, participants in a criminal organisation; and (4) Parliament's initial determination by the 2015 Regulations to declare 16 places as prescribed places, in an exercise of "unequivocally legislative power that did not require procedural fairness to any person, such that it could not be inferred to have intended a differential obligation to owners and occupiers of places in the exercise of delegated legislative power to make further declarations.

Procedural fairness applies

The existence of a duty to afford procedural fairness is a question of statutory interpretation. In Twist v Randwick Municipal Council, Barwick CJ described the common law rule that a statutory authority having power to affect the rights of a person is bound to hear her or him before exercising the power as "both fundamental and universal", although subject to legislative displacement. Barwick CJ explained that, if it appears that the legislature "has not addressed itself" to the question of natural justice, the court will approach the task of statutory interpretation "with a presumption that the legislature does not intend to deny natural justice to the citizen", and "may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice".

Since Twist, the law has evolved to include an established and "strong" common law presumption, generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness. Consistent with the historical scope of the duty of procedural fairness, the core operation of the presumption requires the provision of procedural fairness where the relevant power directly affects the rights or interests of a particular individual. In such a case, the presumption operates "unless clearly displaced by the particular statutory scheme".

Notwithstanding the breadth of the stated presumption, there remain statutory powers that are not conditioned upon a duty to give procedural fairness. In particular, powers that affect individuals in an undifferentiated way from the general public may not attract an obligation of procedural fairness. Thus, in Kioa v West, members of this Court emphasised the need for people to be affected as individuals for procedural fairness to apply where a decision affects many people. Mason J adopted a distinction between a decision which directly affects the person individually and one which simply affects her or him as a member of the public or of a class of the public. Brennan J considered that (subject to displacement by the text of the statute, the nature of the power and the administrative framework created by the statute) the presumption "applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public". Deane J referred to a direct effect on, relevantly, rights and interests of a person in her or his individual capacity, as distinct from a member of the general public or of a class of the general public.

This is not a case that requires consideration of the scope of procedural fairness in relation to a power liable adversely to affect a large group of persons. In this Court, the appellants' case was based squarely upon their individual property rights and interests that would be directly affected by a valid declaration of the blocks comprising the Cowirra land as prescribed places. Declarations of land as prescribed places affect owners and occupiers of the land to a significant degree, and in a manner markedly different from other persons who might be adversely affected by such a declaration, in the sense envisaged in Kioa. The possible interests of a broader class of participants in criminal organisations do not detract from the application of the presumption in this case.

South Australia argued that several features of the 1935 Act supported a conclusion that the declaration power is not conditioned by a duty to afford procedural fairness despite its capacity to affect the rights and interests of owners and occupiers of land, being: (1) the Governor in Council as the repository of the power; (2) the unfettered nature of the declaration power; (3) the Parliament's power to make regulations by statute, as evidenced by the 2015 Regulations; and (4) the provisions for parliamentary oversight of the declaration power. There was no suggestion that the rights and interests of the appellants were not a permissible consideration. Significantly, and contrary to the Court of Appeal's view, South Australia did not press that the legislative purpose of disrupting activities of criminal organisations might be frustrated or compromised by the affording of that procedural fairness.

The features of the 1935 Act identified by South Australia are insufficient, individually and cumulatively, to establish an intention to displace the common law presumption.

Since FAI Insurances Ltd v Winneke, it has been established that the mere vesting of decision-making authority in the Governor in Council is not a sufficient manifestation of a legislative intention to exclude the duty of procedural fairness.

In South Australia v O'Shea, Mason CJ did not discern a legislative intention to exclude a duty to act fairly by the vesting of authority in the Governor in Council, at least where the relevant decision was not to be made principally by reference to issues of general policy. In concluding that the critical question was whether Mr O'Shea had an adequate opportunity to make submissions, Mason CJ rejected an argument that the political or policy aspects of the decision placed it outside the ambit of procedural fairness. Rather, there were issues on which Mr O'Shea was not entitled to be heard. Wilson and Toohey JJ, and Brennan J, focused on the nature of the decision and the political responsibility attaching to the determination of the public interest, rather than the repository of the power. Writing in dissent, Deane J rejected the identity of the decision maker as a relevant factor.

In O'Shea, Mason CJ also addressed the significance of the participation by Cabinet in the process by which the South Australian Governor in Council exercises statutory power. He rejected a submission that the primarily political, social and economic concerns of Cabinet would deny the existence of a duty to act fairly in a matter which turned on considerations "peculiar to the individual". He also rejected the further objection that the private and confidential nature of Cabinet processes precludes the imposition of a duty to act fairly, observing that, in an appropriate case, a requirement that there be placed before Cabinet submissions of an individual affected by the relevant decision would not intrude upon Cabinet's control of its own proceedings.

Contrary to South Australia's submission, in the absence of any clear words that would displace the presumptive obligation to afford procedural fairness, the broad scope of the regulation‑making power conferred by s 370 has no significance. While there are earlier decisions supportive of the view that the unfettered nature of a power is inconsistent with a duty of procedural fairness, requirements of procedural fairness conditioning the exercise of unfettered statutory powers are now commonplace.

There is no reason to conclude that the scope of the regulation-making power is unconstrained by a duty of procedural fairness simply because the exercise of legislative power is not so constrained. Similarly, the general and limited oversight of the regulation‑making power by a Parliamentary Committee and the availability of disallowance are not a source of an implication to exclude procedural fairness: South Australia did not suggest that oversight of this kind was likely to afford procedural fairness to owners or occupiers, or that it would involve consideration of matters that might be raised by an owner or occupier if procedural fairness was afforded and that might avoid the arbitrary exercise of the regulation‑making power.

Content of the obligation to afford procedural fairness

A distinction is sometimes drawn between exercises of statutory power that concern considerations personal to an individual and those that concern issues of general policy. Undoubtedly, the focus of the scheme which includes the declaration power is the disruption of criminal activity. In that context, considerations personal to the owners and occupiers of land ordinarily can be expected to be secondary to broader policy considerations. However, the proper exercise of the declaration power requires the identification of facts to connect the proposed prescribed place with the purpose of disruption. In this way, the exercise of the declaration power is an application of the policy to disrupt criminal activity, rather than the formulation of policy.

There is no reason to doubt that an owner or occupier may have something to say of relevance about the characteristics of the land or its uses, or about possible adverse impacts of declaring a place as a prescribed place, which might affect an assessment of whether to make such a declaration.

Procedural fairness under this scheme requires reasonable notice to an owner or occupier of a proposal to declare a place a prescribed place, to give them an opportunity to supply information or make submissions as to matters within their knowledge as an owner or occupier that may be relevant to a decision to exercise the declaration power. It does not require an opportunity to make more general submissions as to the likely efficacy of the exercise of the declaration power in disrupting serious criminal activity. Accordingly, this is not a case where procedural fairness would require owners or occupiers to be informed of the nature or content of information that might form the basis of a recommendation to the Governor to declare a place to be a prescribed place.

Orders:-

The appeal should be allowed. The orders of the Court of Appeal should be set aside and, in lieu thereof, it should be declared that the Cowirra Regulations are invalid. South Australia should pay the appellants' costs in this Court and below.

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (14 June 2023)

Intro:-

The Full Court of the Federal Court of Australia concluded that the appellant's decision under s 501CA(4) of the Migration Act 1958 (Cth) refusing to revoke a decision to cancel the respondent's visa gave rise to jurisdictional error because the appellant took into account a consideration made irrelevant by s 85ZR(2) of the Crimes Act 1914 (Cth) – namely the respondent's offending as a child for which no conviction was recorded – when, under s 184(2) of the Youth Justice Act 1992 (Qld), the respondent was taken never to have been convicted of any of those offences committed as a child.

Facts:-

The respondent, Mr Thornton, is a citizen of the United Kingdom who arrived in Australia with his family in 1999 on an Australian parent visa when he was three years old. He has lived in Australia since that time on a succession of temporary visas, the last of which was a Class BB Subclass 155 Five Year Resident Return visa, granted in 2011.

At the age of 16, Mr Thornton appeared three times in the Queensland Childrens Court and was found guilty of five offences: "failure to appear in accordance with undertaking", for which he was reprimanded; three offences – "going armed so as to cause fear", "serious assault police biting/spitting/applied bodily fluid/faeces", and "assault or obstruct police officer" – for which he was placed on a probation period of six months; and "assault or obstruct police officer", for which he was placed on a good behaviour bond for a period of six months. When he was 17, Mr Thornton appeared in a Queensland Magistrates Court and was found guilty of an offence of "commit public nuisance", for which he was ordered to pay a fine.

No conviction was recorded for any of those offences.

From when Mr Thornton turned 18 in September 2014 up until February 2018, at the age of 21, he was found guilty of a range of offences, including possessing dangerous drugs and property suspected of being connected with drugs offences, public nuisance, assaulting or obstructing police officers, failure to appear, drunk and disorderly behaviour, domestic violence offences, and several contraventions of domestic violence orders. He received various sentences for those offences, ranging from fines with community service or good behaviour periods without any conviction being recorded, to periods of imprisonment ranging from two to 18 months.

On 21 February 2018, Mr Thornton's visa was cancelled under s 501(3A) of the Migration Act as a delegate of the Minister was satisfied that he did not pass the character test because he had a substantial criminal record, and he was serving a sentence of imprisonment on a full-time basis ("the cancellation decision"). In the Minister's notice of visa cancellation, Mr Thornton was invited to make representations about revocation of the cancellation decision under s 501CA(4) of the Migration Act.

Minister's decision

Before stating that conclusion, the Minister made several observations concerning Mr Thornton's offending, including his childhood offending. The Minister first noted that he had assessed all of the information in the attachments to his reasons, which included Mr Thornton's juvenile criminal history, and in particular Mr Thornton's representations, which included acknowledgment of his childhood offending. The Minister noted that although he held the view that the Australian community might afford a higher tolerance of Mr Thornton's criminal conduct given that he had lived in Australia most of his life since he was three years old, he thought that "would be offset to at least some degree by the fact that he began offending as a minor and had a number of offences recorded before reaching adulthood". The Minister noted that Mr Thornton "has a history of mainly drug-related and violent offences since he was 16 years old" and referred to Mr Thornton having been fined and placed on probation, including as a result of his appearances in "juvenile courts", for offences "without any convictions being recorded". The Minister also stated that he considered that the fact that Mr Thornton had "repeatedly committed offences of or related to domestic violence, and other assault offences add[ed] more gravity to his offending" (emphasis added). Finally, in his concluding remarks, the Minister stated that he "gave significant weight to the serious nature of the crimes committed by Mr THORNTON, that are of a violent nature". As Mr Thornton's criminal history makes clear, the majority of his juvenile offences involved some form of violence.

Unsurprisingly, there was no dispute that the Minister had taken into account findings of guilt in relation to offences committed when Mr Thornton was a child for which no convictions were recorded. That concession was properly made.

Irrelevant consideration

The next question was whether that consideration – findings of guilt in relation to offences committed when Mr Thornton was a child for which no convictions were recorded – was an irrelevant consideration.

The requirement to read, identify, understand and evaluate the representations does not detract from established principle in respect of the types of errors that may be jurisdictional, including where a decision-maker took into account an irrelevant consideration. Accordingly, although the Minister was required to consider Mr Thornton's representations, which included references to his juvenile offending, if Mr Thornton's childhood offences for which no convictions were recorded were an irrelevant consideration for the purpose of the Minister coming to his decision as to whether to revoke the cancellation decision, he would be in error to consider those offences. Determining whether such an error occurred turns on the proper construction of s 85ZR(2) of the Crimes Act read with s 184(2) of the Youth Justice Act.

The task of construction must start with the text of each provision, having regard to its context and purpose. Further, the context is to be considered "at the first stage of the process of construction", where context is to be understood in its widest sense as including "surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole".

Issue:-

Is s 184(2) of the Youth Justice Act a law of a State under which a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State?

Consideration:-

Relevant legislation

Section 85ZR(2) of the Crimes Act provides that:-

"Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:

(a) the person shall be taken, in any Territory, in corresponding circumstances or for a corresponding purpose, never to have been convicted of that offence; and

(b) the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence."

Section 184(2) of the Youth Justice Act provides that:-

"Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose."

Intersection of s 85ZR of the Crimes Act and Youth Justice Act

Section 184 of the Youth Justice Act engages s 85ZR of the Crimes Act. The "particular circumstance[]" – the condition – referred to in s 85ZR(2) is found in s 184(2): a finding of guilt against a child has been made, and the court has decided, or been mandated, under s 183 not to record a conviction. Section 184(2) deems a person never to have been convicted of an offence and takes away the adverse consequences which attend a conviction. In sum, consistent with s 85ZR of the Crimes Act, ss 183 and 184 of the Youth Justice Act prescribe a particular circumstance in which a person – a child – is taken never to have been convicted of an offence under the law of Queensland.

Accordingly, s 85ZS(1)(d)(ii) of the Crimes Act engages s 184(2) of the Youth Justice Act so that the Minister could not take into account under s 501CA(4) of the Migration Act any of the findings of guilt made against Mr Thornton when he was a child for which no convictions were recorded, and, having regard to the express wording of s 85ZS(1)(d)(ii) and the expanded definition of when "a person shall be taken to have been convicted of an offence", the Minister could not take into account that Mr Thornton had been charged with offences committed when he was a child for which no convictions were recorded. The Minister therefore took into account an irrelevant consideration.

Jurisdictional error

The next question is whether the Minister's error in taking into account the irrelevant consideration of the findings of guilt made against Mr Thornton when he was a child, for which no convictions were recorded, was "material" in the sense that it deprived Mr Thornton of a realistic possibility that the decision made by the Minister could have been different if that irrelevant consideration had not been taken into account, so as to give rise to jurisdictional error.

The starting point, and what is critical, is the nature of the error in this case. Consideration of the nature of the error involves identifying the relevant "historical facts" as to what occurred in the making of the Minister's decision.

There is no bright line to be drawn to determine whether the particular error in a given case falls into one of the categories of error identified by the principal joint judgment in MZAPC v Minister for Immigration and Border Protection which necessarily result in "a decision exceeding the limits of decision‑making authority without any additional threshold [of materiality] needing to be met" by an applicant. The nature of the error has to be worked out in each case in the context of a particular decision under a particular statute; that is, a determination of whether the decision could have been different had the error not occurred "cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made".

The error in this case was "relevant to the actual course of the decision‑making". It was not suggested that it was an error that was, without any additional threshold, necessarily material. In this case, the course of the Minister's decision-making reveals that his taking into account of the findings of guilt made against Mr Thornton as a child, without convictions being recorded, infected the whole of his reasoning in coming to the conclusion that there was not "another reason" why the cancellation decision should be revoked.

Conclusion:-

The appeal be dismissed with cost.

Did visa criterion in cl 790.227 of Sch 2 of the Migration Regulations 1994 (Cth) permit Minister to refuse to grant visa solely on ground that it is not in national interest to grant SHEV visa to person convicted of people smuggling?

ENT19 v Minister for Home Affairs [2023] HCA 18 (14 June 2023)

Intro:

The plaintiff sought judicial review of the Decision in the original jurisdiction of this Court, seeking various remedies on different grounds, including writs of habeas corpus, mandamus and certiorari, and declarations relating to the validity and construction of cl 790.227. During the oral hearing, the plaintiff also sought a declaration that he satisfies the criteria for the grant of a SHEV.

Facts:

The plaintiff, a citizen of Iran, arrived in Australia by boat in December 2013 and was immediately detained under s 189 of the Migration Act 1958 (Cth). On 3 February 2017, the plaintiff made a valid application for a temporary protection visa – a Safe Haven Enterprise (Class XE) Subclass 790 visa (a "SHEV")[34].

In October 2017, the plaintiff was convicted after pleading guilty to the aggravated offence of people smuggling

on 27 June 2022. The first defendant, the Minister for Home Affairs, purportedly made a decision under s 65 of the Act to refuse the plaintiff's application because she was not satisfied of the visa criterion in cl 790.227 of Sch 2 of the Migration Regulations 1994 (Cth) that the grant of the SHEV was in the national interest ("the Decision"). The Minister's reasons reveal that the criterion in cl 790.227 was not met because in her view it was not in the national interest to grant a protection visa to a person convicted of a people smuggling offence.

Non-satisfaction of cl 790.227 was the sole basis for refusing the plaintiff's application. Satisfaction of the visa criteria other than that in cl 790.227 was not in issue. The defendants accepted that at the time of the Decision all of the criteria for the grant of the visa, apart from cl 790.227, were satisfied.

Minister's refusal to grant the SHEV

The second brief attached a draft Statement of Reasons for personally refusing the SHEV under s 65 relying on cl 790.227, which the Minister signed on 27 June 2022 without amendment. In that Statement of Reasons, the Minister set out her reasons for her decision that she was not satisfied that granting the SHEV to the plaintiff was in the national interest.

Relevantly, under the heading "Other factors taken into account in determining whether the grant of the visa would be in the national interest", the Minister stated that she did "not accept [the plaintiff's] submission that refusing to grant him a SHEV on the basis of clause 790.227 would be a refusal to grant the visa 'on character grounds', a matter dealt with by s 36(1C) of the Act". The reasons did not refer to PIC 4001 or s 501. The Minister stated that "a refusal to grant [the plaintiff] a SHEV on the basis of clause 790.227 is because of my assessment of other adverse impacts that granting a protection visa to a person who has been convicted of people smuggling would have on Australia's border protection regime, and the policy that underpins it".

Next, the Minister stated:-

"I regard protecting and safeguarding Australia's territorial and border integrity, which includes measures to combat people smuggling, to be matters that clearly go to the national interest. In my view, granting a protection visa to a person who has been convicted of people smuggling would send the wrong signal to people who may be contemplating engaging in similar conduct in the future, thereby potentially weakening Australia's border protection regime. It is not in the national interest for a person convicted of people smuggling to be seen to get the benefit of a protection visa." (emphasis added)

This statement is, in effect, a statement of general policy that it is not in the national interest for convicted people smugglers to get protection visas.

The Minister then set out what she described as an "additional reason" why she considered that granting the SHEV to the plaintiff would not be in the national interest:-

"I also consider it is in the national interest to maintain the confidence of the Australian community in the protection visa program. People smuggling can be seen to conflict with the values underlying the protection visa program since it involves taking advantage of, and exploiting, those seeking protection by smuggling them across borders. The grant of a protection visa to a non‑citizen who has been convicted of people smuggling may erode the community's confidence in the program." (emphasis added).

Issue:-

Was the Decision authorised by cl 790.227, properly construed?

Consideration:-

Regulations are to be construed according to the ordinary principles of statutory construction. The starting point for the ascertainment of the meaning of a provision is its text, while at the same time regard is to be had to its context and purpose. Of course, the statutory context of regulations includes the Act under which the regulations were made and are sustained. Context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense, including by reference to legislative history and extrinsic material. As Kiefel CJ, Nettle and Gordon JJ explained in SZTAL v Minister for Immigration and Border Protection[98]:-

"This is not to deny the importance of the natural and ordinary meaning of a word ... Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."

The context of the words, consideration of the consequences of adopting a provision's literal meaning, the purpose of the statute and principles of construction may lead a court to adopt a construction that departs from the literal meaning of the words of a provision. One such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. As expressed by Gageler J in SAS Trustee Corporation v Miles, "statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means". Where conflict appears to arise in construing an Act, "the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions", and this "will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'". Ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended.

Clause 790.227 was inserted by Parliament into the Regulations

Unusually, cl 790.227 was not made by the Governor‑General in the exercise of the regulation-making power under s 504 of the Act. Instead, it was inserted by Parliament into the existing Regulations by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which also amended the Act to introduce the SHEV as a new class of protection visa[104]. Clause 790.227 was inserted into the Regulations at the same time as all of the other criteria in the Regulations for the new SHEV class, including cl 790.226 which prescribed PIC 4001 as a criterion for the visa.

That is, Parliament did not create a statutory visa criterion by inserting cl 790.227 into the Act – for example, by amending s 36. Rather, Parliament made cl 790.227 in the form of an amendment to the Regulations, which were made by the Governor-General under s 504 of the Act. In doing so, Parliament made it clear that the Governor‑General was able to amend or repeal the Regulations as amended[106]. When the Regulations as amended were registered under the then Legislative Instruments Act 2003 (Cth), s 5(3) of that Act provided that, by virtue of the registration, the instrument was taken to be a "legislative instrument", defined as an instrument of a legislative character "that is or was made in the exercise of a power delegated by the Parliament"[107]. In short, cl 790.227 cannot be construed as if it were a provision of the Act, because it is not and never has been part of the Act, and the amending Act which inserted it into the Regulations did not express such an intention. It is a clause of the Regulations.

The subordinate status of cl 790.227 to the Act does not mean the clause is less binding in law than a statutory provision. However, it may, and here does, indicate that in reconciling provisions that otherwise present issues of inconsistency or incoherency, Parliament intended the clause to give way more readily or be adjusted if necessary to ensure a harmonious interpretation.

Proper construction of cl 790.227

The construction put forward by the plaintiff that should be accepted is that cl 790.227 does not operate to permit the Minister or delegate to reconsider or revisit, under the criterion of "the national interest", those matters that have already been considered as part of the decision-making process under s 65 (some of which are committed to the Minister personally) and to treat those matters as sufficient to form the opinion that the Minister or delegate is not satisfied that the grant of the visa is in the national interest.

That is not to say that cl 790.227 has no work to do. The concept of "the national interest" as used in the Act is undoubtedly broad and the possible considerations it may encompass cannot be catalogued. In this context, as cl 790.227 is a general visa criterion to be satisfied for all visa decisions for that class, "the national interest" must be informed in part by consideration of the nature of visas of that class, specifically, protection visas. The satisfaction of the criteria that are set out in the Act for protection visas, in particular the satisfaction of one of the criteria in s 36(2), is the primary basis on which Parliament expects that the Minister or delegate will be satisfied that the grant of the visa is in the national interest. That said, of course there might be other considerations that weigh against the general expectation in cl 790.227 that the grant of protection visas to persons to whom Australia owes protection obligations is in the national interest. For example, such a scenario might be where Australia is at war with the country from which the applicant seeks refuge. It is for this reason that, although the expression of cl 790.227 is in positive terms – as a criterion for grant of a visa, not for refusal of a visa – the parties were right to describe it in its negative sense because it is not a criterion that sits independently of all the others; the premise that it is in the national interest to grant a visa when a person is owed protection obligations and meets the other criteria can only be displaced by other national interest matters.

Again, put in different terms, it can be accepted, as the defendants submitted, that cl 790.227 is a cumulative requirement for the grant of a SHEV operating in addition to the other visa criteria and powers – cl 790.227 provides an additional basis to refuse the visa if the Minister considers, for some other reason, that the grant of the visa is not in the national interest. But that reason must be "another" reason. Determining whether that is the case will depend on an evaluation of the Minister or delegate's reasons.

As has been said, cl 790.227 was not intended to be a trump card for the Minister to use to refuse the visa under s 65 without needing to consider, or be constrained by, any of the other criteria and powers relevant to the decision. Unlike s 501 of the Act, cl 790.227 is not a special visa refusal power conferred by the Act. It is a positive visa criterion in the Regulations to be satisfied for all grants of a protection visa by the Minister and delegates alike. It cannot be treated as if it were a personal dispensing power. The Decision should be quashed.

Orders:-

In the circumstances, a writ of certiorari should issue quashing the decision of the first defendant made on 27 June 2022 to refuse to grant the plaintiff a SHEV and a writ of mandamus should issue commanding the first defendant to determine the plaintiff's visa application according to law within 14 days of the date of this order. The Minister has conceded that, at the date of the Decision, the plaintiff met all of the criteria for the SHEV other than cl 790.227. These reasons explain the proper construction and application of cl 790.227. The Court's power to grant declaratory relief is limited by the scope of the issues in the proceeding and a declaration as to the position conceded by the Minister is unnecessary.

The defendants should pay the plaintiff's costs.

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 (17 May 2023)

Intro:

This is an appeal from a decision of the Full Court of the Federal Court of Australia.

Facts:-

The matter before the Full Court was an appeal by the present appellant, who is a citizen of Burkina Faso. The respondents to the appeal were the present respondents, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ("the Minister") and the Administrative Appeals Tribunal ("the AAT"). The appeal was from a decision of a single judge of the Federal Court dismissing an application by the appellant for judicial review of a decision of the AAT. The decision of the AAT had affirmed a decision of a delegate of the Minister not to revoke the cancellation of the appellant's visa.

Under the Migration Act 1958 (Cth) ("the Act"), the Minister is obliged to cancel a person's visa if the Minister is satisfied that the person does not pass the "character test" and if the person is serving a full-time sentence of imprisonment. The Act provides that a person does not pass the "character test" if the person has "a substantial criminal record", which exists if the person has been sentenced to a term of imprisonment of 12 months or more. Upon notice to the person and upon representations being made by the person, the Minister has a discretion to revoke the cancellation decision if, relevantly, satisfied that there is "another reason" (apart from the person passing the character test) why that decision should be revoked. A decision of a delegate of the Minister made in the exercise of that discretion is reviewable on its merits by the AAT.

Following a trial on indictment in the County Court of Victoria in 2013, the appellant was convicted of a drug importation offence under the Criminal Code (Cth). He was sentenced to a term of imprisonment of ten years with a non-parole period of seven years. He appealed against his conviction to the Victorian Court of Appeal, which in 2014 dismissed the appeal.

In 2017, while the appellant was serving the sentence of imprisonment, a delegate of the Minister made the decision to cancel his visa on the basis that he did not pass the "character test" by reason of the sentence of imprisonment. In 2019, another delegate of the Minister decided not to revoke that cancellation decision. The decision not to revoke the cancellation of the appellant's visa was affirmed by the AAT in 2020. The appellant applied for judicial review of that decision of the AAT and was unsuccessful before the primary judge, leading to the appeal to the Full Court.

The appellant was unrepresented before the primary judge and at the time of filing the original notice of appeal from the decision of the primary judge to the Full Court. The appellant subsequently obtained legal representation, resulting in a written application to the Full Court for leave to amend the notice of appeal to raise grounds which had not been advanced before the primary judge. The proposed grounds were to the effect that the decision of the AAT was legally unreasonable and that certain findings of the AAT were not supported by probative evidence. The application for leave to amend was listed for hearing at the time scheduled for hearing of the appeal.

The appeal was scheduled to be heard on the morning of 17 August 2021 before a Full Court constituted by McKerracher, Griffiths and Bromwich JJ. It is a matter of public record that, from 2012 until his appointment to the Federal Court in 2016, Bromwich J held the office of Director of Public Prosecutions under the Director of Public Prosecutions Act 1983 (Cth).

Minutes before the commencement of the hearing on that day, the associate to Bromwich J sent an email to the legal representatives of the parties. The email stated that his Honour had asked the associate to advise the parties that he had appeared for "the Crown" in the appellant's unsuccessful conviction appeal in the Victorian Court of Appeal in 2014. The fact that his Honour had appeared as senior counsel for the respondent in that appeal was apparent from the record of the decision of the Victorian Court of Appeal, which was included in the appeal book for the Full Court proceedings. The email said that his Honour did not consider that circumstance to give rise to an apprehension of bias as the appeal "related to a pure legal question" but nonetheless wished to draw it to the attention of the parties "in order that any application for his Honour to recuse himself" could be made.

At the commencement of the hearing of the appeal before the Full Court, counsel for the appellant announced that he had instructions to apply for Bromwich J "to recuse himself". Counsel for the appellant proceeded to make that application orally, relying solely on the circumstances disclosed in the email. At the conclusion of the oral submissions of counsel for the appellant there was a short adjournment, following which the Full Court reconvened.

Upon the Full Court reconvening, McKerracher J invited Bromwich J to "deal with the application". Bromwich J explained that he declined to recuse himself from sitting on the appeal for reasons he proceeded to elaborate. McKerracher J then invited counsel for the appellant to continue and the hearing resumed. At the conclusion of the hearing, the Full Court reserved its decision.

The decision of the Full Court was delivered on 15 September 2021. By that decision, the Full Court granted the appellant leave to rely on the ground that the decision of the AAT was legally unreasonable, refused the appellant leave to rely on the proposed ground that findings of the AAT were not supported by probative evidence, and dismissed the appeal.

Joint reasons for judgment then published by McKerracher and Griffiths JJ comprehensively addressed the merits of the application for leave to amend the notice of appeal and the appeal. Those reasons said nothing about the application which had been made orally at the hearing.

In separate reasons for judgment, Bromwich J agreed with McKerracher and Griffiths JJ as to the merits and went on to recapitulate the reasons he had given during the hearing for considering that the circumstances outlined in the email from his associate did not give rise to an apprehension of bias. Those reasons, in essence, were that: as Director of Public Prosecutions his practice was to appear only in appeals which raised issues of principle; the appellant's appeal against conviction to the Victorian Court of Appeal was an appeal of that character, turning wholly on a legal question as to the admissibility of evidence; by virtue of his appearance in that appeal, he had acquired no knowledge of the criminal history of the appellant beyond that which was apparent to all members of the Full Court from the record of the decision of the Victorian Court of Appeal contained in the appeal book for the Full Court proceedings; the fact of the conviction was not in issue in the appeal before the Full Court, it being common ground that the appellant failed the "character test"; and the contents of the decision of the Victorian Court of Appeal did not feature in the appeal before the Full Court in any way, the record of that decision having been included in the appeal book only because it had been part of the material which had been before the AAT.

His Honour also made clear what was in any event to be inferred from the timing of his associate's email: that he had only noticed that he had appeared in the conviction appeal during the course of his final preparation on the morning of the hearing before the Full Court on 17 August 2021. His Honour acted prudently in accordance with standard judicial practice by promptly notifying the parties of circumstances properly recognised by him to have the potential to be seen to give rise to an apprehension of bias.

Issue:-

Whether challenged judge's appearance as senior counsel for the Crown in the appellant's appeal against his convicton for drug importation offense was sufficient to have given rise to reasonable apprehension of bias on the part of challenged judge?

Consideration:-

The Full Court should have decided the objection

The application made to the Full Court by counsel for the appellant at the commencement of the hearing, although framed as an application that Bromwich J "recuse himself", was in substance an objection to the Full Court as then constituted hearing and determining the appeal. Was the application appropriately left by McKerracher and Griffiths JJ to be considered and determined by Bromwich J alone? Or should it have been considered and determined by the Full Court constituted by all three of them?
...

The question arising in the circumstances of the present case falls to be resolved at the level of principle within the framework established in Ebner v Official Trustee in Bankruptcy. Foundational to that framework are two propositions. One is that impartiality is an indispensable aspect of the exercise of judicial power. The other is that "[b]ias, whether actual or apprehended, connotes the absence of impartiality". Leaving to one side exceptional circumstances of waiver or necessity, an actuality or apprehension of bias is accordingly inherently jurisdictional in that it negates judicial power.

Once the jurisdictional significance of bias is appreciated, it becomes apparent that responsibility for ensuring an absence of bias – whether actual or apprehended – lies with a court as an institution and not merely with a member of that court whose impartiality might be called into question. The duty, indeed the "first duty", of any court is to be satisfied of its own jurisdiction. The upshot of that duty, as elaborated by Gibbs J in The Queen v Federal Court of Australia; Ex parte WA National Football League, is that:-

"When the question is raised before a court of limited jurisdiction whether a condition of its jurisdiction has been satisfied, that court is not obliged immediately to refrain from proceeding further. It can and should decide whether the condition is satisfied and whether it has jurisdiction to proceed, but its decision is not conclusive."

Thus, an objection to a multi-member court as constituted hearing and determining a matter based on an allegation of bias on the part of one or more of its members (including an objection brought by way of an application for recusal or disqualification) raises a question of jurisdictional fact which that court can and must determine for itself in order to be satisfied of its own jurisdiction. The determination of that question of jurisdictional fact is not antecedent to the performance of the curial function, but part of that function. The determination ought to be reflected in a curial order which embodies the court's formal resolution of the objection, subject to applicable procedures for appeal or review for jurisdictional error.

In the case of the Full Court of the Federal Court, precisely who constitutes "the court" for the purposes of hearing and determining an appeal is spelt out in the Federal Court of Australia Act 1976 (Cth). Subject to presently immaterial exceptions, the appellate jurisdiction of the Federal Court is required to be exercised by a Full Court consisting of three or more judges sitting together. The making of arrangements about which judges are to constitute the Full Court in a particular matter or class of matters lies within the responsibility of the Chief Justice. The process by which the Chief Justice makes arrangements can be expected to be tailored to minimise the risk of any issue of bias arising on the hearing of a matter, including by allowing a legitimate concern about bias on the part of a judge to be raised and addressed administratively as an aspect of that process. But once a Full Court consisting of three or more judges is constituted and is seized of the hearing of an appeal, responsibility for the discharge of the judicial power involved in hearing and determining the appeal devolves to those three or more judges acting institutionally as the Full Court. The institutional responsibility of the Full Court as so constituted includes the consideration and determination of an objection to its jurisdiction. The Full Court as so constituted has a duty to hear and determine the appeal unless the court as so constituted determines that the objection to jurisdiction is well-founded.

The view that an allegation of bias on the part of a member of an appellate or collegiate court can and should be considered and determined by the court as distinct from the impugned member alone was cogently developed by Sir Anthony Mason, writing soon after Kartinyeri. Sir Anthony concluded that the court has an institutional responsibility to ensure that it is constituted "in accordance with the provisions of the law governing the judicial process, the exercise of judicial power and natural justice". He pointed out that that institutional responsibility of the court as constituted was entirely congruent with what then was, and remains, the common practice in Australian courts according to which judges at first instance hear and determine allegations of bias raised against themselves. The rationale for that practice he explained to be that "[a]t first instance, the judge who is the target of the objection determines the objection because [that judge] constitutes the court".

To require an allegation of bias on the part of a member of a multi-member court to be considered and determined by the court as constituted should not be thought to place an undue strain on judicial collegiality. In the context of explaining the appropriateness of appellate review of non-recusal decisions, it was emphasised in Livesey that the determination of questions of apprehended bias can involve evaluations of degree on which reasonable minds might differ and that a conclusion of apprehended bias on the part of an individual judge implies no criticism of that judge. As for sensitivities between judges at different levels of the judicial hierarchy, so for sensitivities between judges within a multi-member court.

The application that Bromwich J "recuse himself" ought therefore to have been considered and determined by the Full Court.

Apprehended bias should have been found

The basis on which apprehended bias should have been found remains to be explained.

The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability".

Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

...

In the present case, close adherence to the logic of the Ebner analysis has greater utility.

Although the appellant placed some emphasis on the fact of Bromwich J having held the statutory office of Director of Public Prosecutions at the time of the appellant's conviction appeal, and by inference at the time of his indictment, trial and conviction, the appellant failed to articulate how that factor alone might logically be said to lead to an apprehension that his Honour might not resolve the questions in the appeal to the Full Court on their legal and factual merits. None is apparent.

The appellant is on firmer ground in relying on the fact that Bromwich J had appeared as counsel against him in his conviction appeal. It will be recalled that becoming aware of that fact had prompted Bromwich J correctly to cause the parties to be notified of the potential for an apprehension of bias to have arisen.

In articulating the logical connection between that factor and an apprehension that Bromwich J might not bring an impartial mind to the resolution of the legal questions before the Full Court on their merits, the appellant relied on the observation of Gageler J in Isbester that "a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person".

His Honour's appearance as counsel against the appellant in his earlier conviction appeal was sufficient to give rise to a reasonable apprehension on the part of a fair-minded lay observer of the possibility that his Honour had formed and retained an attitude to the appellant incompatible with the degree of neutrality required dispassionately to resolve issues in a subsequent proceeding to which the appellant was a party. The circumstance that the conviction led to the cancellation of the appellant's visa so as to be causally related to the subject-matter of the appeal concerning the non-revocation of the cancellation decision reinforced the reasonableness of that apprehension in the circumstances of the case. The facts that his Honour had been concerned as counsel only to argue a question of law and had acquired no knowledge of the criminal history of the appellant not apparent from the record of the decision of the Victorian Court of Appeal were not to the point. Neither that nor any other of the considerations referred to by his Honour was sufficient to allay the apprehension of bias which reasonably arose.

The effect of apprehended bias

The Solicitor-General of the Commonwealth, who appeared for the Minister, conceded that it followed from a conclusion of apprehended bias on the part of Bromwich J that the Full Court was deprived of jurisdiction to hear and determine the appeal even though the decision was in fact unanimous. Despite being prepared to concede that bias on the part of one out of three members of a multi-member court was sufficient to deprive the court of jurisdiction, the Solicitor-General sought to reserve to a future case whether bias on the part of one out of, say, five or seven members of a multi-member court would have that effect. The attempted reservation indicates that something needs to be said about the basis on which the concession is correct.

Once it is accepted that absence of bias is inherent in the exercise of judicial power and that the jurisdiction of a multi-member court is to be exercised by all of the judges who constitute the court for the hearing and determination of a matter, it becomes apparent that bias on the part of any one of those judges deprives the court as so constituted of jurisdiction to proceed with the hearing and determination of that matter. Where bias on the part of an individual judge is established, that is the end of the jurisdictional inquiry. No numerical exercise is involved. It is not a question of counting apples in a barrel[84]. Nor is it to the point to inquire into whether the outcome of the exercise of jurisdiction by the court as so constituted would or could have been different if the judge was not biased or if the biased judge did not participate.

That jurisdictional consequence of bias on the part of any of its members has an important practical dimension for a multi-member court. Each member of the court has an individual duty to give effect to his or her own true view of the facts and applicable law. In the discharge of that duty, however, members of the court can properly be expected to confer together in private in order to obtain the benefit of each other's views and to agree where they can. For the public to be able to have confidence in the outcome of such a closed deliberative process, the public must be confident that each participant in the process is free from bias. The process and the outcome would be tainted were a biased judge "in the room".

Conclusion:-

The appeal should be allowed. The decision of the Full Court should be set aside. The matter should be remitted to the Federal Court to be heard and determined by a differently constituted Full Court. The Minister should pay the appellant's costs of the appeal and of the hearing to date of the appeal to the Full Court.

McEwan v Clark & Ors [2023] QCA 120 (2 June 2023)

Intro:-

This is an appeal from the Supreme Court of Queensland at Brisbane.

Facts:-

In 2019, the appellant was charged with 30 offences, alleged to have been committed under the Criminal Code (Cth) and the Criminal Code (Qld), which include allegations that she attempted to dishonestly obtain a financial advantage from the Australian Taxation Office (ATO), dishonestly influenced a Commonwealth official, and engaged in forgery and uttering.

The appellant is currently being prosecuted in the Magistrates Court with respect to those offences.

On 12 December 2022, Magistrate Saggers made two relevant orders:

(a) the first was that there be a disclosure hearing in the Magistrates Court on 9 March 2023; and
(b) the second was that the committal hearing on the charges be set down for five days commencing on 8 May 2023.

On 13 December 2022, the appellant filed an Originating Application in the Supreme Court seeking relief which can be characterised in the following way:

(a) Order 1: that the committal hearing in the Magistrates Court be delisted;

(b) Order 2: the ATO proceedings and the committal proceedings in the Magistrates Court be adjourned until a final determination is made on the appellant’s application for a permanent stay of the prosecutions in proceeding No. 9181/2022;

(c) Order 3: all outstanding disclosure listed in the Disclosure Request served on the CDPP, ATO, and the Queensland Director of Public Prosecutions (DPP) under the directions of Judge Moynihan KC dated 4 November 2022, and again served on 21 November 2022 and 9 December 2022, be provided within seven days by 20 December 2022;[3]

(d) Order 4: all outstanding disclosure listed in the Disclosure Request served on the QPS dated 9 December, and again 13 December 2022, be provided directly to the appellant within seven days by 20 December 2022;

(e) various other orders relating to disclosure in the Magistrates Court; and

(f) Order 6: the ATO proceedings be placed on the Supreme Court Supervised Case List.

On 21 December 2022, the Originating Application came before the learned primary judge.

During oral submissions before the learned primary judge, the appellant sought to join Magistrate Saggers and Magistrate Merrin. That was based on assertions of “abuse and fraud and being shut down in the Magistrates Court”.[4]

The learned primary judge:-

(a) dismissed the application for the committal proceeding to be delisted;

(b) dismissed the applications for disclosure;

(c) ordered that the appellant not file any further application in the Supreme Court, in relation to the committal proceeding presently being heard in the Magistrates Court Brisbane, without the leave of that Court; and

(d) ordered the appellant pay the Eighth and Ninth Respondents’ costs of the application.

The primary judge's approach

His Honour then expressed his findings in this way:-

“Having considered the material, I am satisfied it is not appropriate to make any of the orders sought by the applicant.

First, this Court does not use any supervisory jurisdiction to interfere with committal proceedings being conducted in another Court. That is to fragment proceedings, and it is contrary to the interests of justice.

Second, the matter of disclosure is specifically to be the subject of a determination by the Magistrates Court, prior to the hearing of that committal proceeding. It would equally be to fragment the process for this Court to interfere in that process.

In those circumstances, the application for the committal proceeding to be delisted and/or adjourned and the applications for disclosure are dismissed.”

Issue:-

Did primary judge deny Appellant natural justice and procedural fairness by not allowing the appellant a hearing for the Court to determine if there are exceptional circumstances warranting the committal proceedings be fragmented?

Consideration:-

For the reasons which follow, the appellant’s contentions must be dismissed.

First, it is true to say that the essential elements of procedural fairness traditionally encompass two requirements, fairness and detachment, which relevantly involve “the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity of being heard”.

Having read the transcript of the hearing below, it cannot be concluded that there was an absence of fairness or detachment on the part of the learned primary judge. The appellant’s written submissions and affidavits were considered, she was able to make such oral submissions as she wished, and the primary judge’s engagement with her did not suggest any lack of fairness or lack of detachment. The appellant was afforded a fair hearing.

Secondly, what the appellant sought below was to have the Supreme Court interfere in the proceedings of the Magistrates Court. More particularly, the substantive proceedings below are of essentially an administrative kind, namely the conduct of a committal hearing into charges on an indictment. The appellant wrongly characterises that as an application to have the committal proceedings “uplifted to the Supreme Court for supervision”. No such application was made. The application was to have the committal proceedings delisted and adjourned pending the determination of a permanent stay application.

An application for a permanent stay had been made in the Magistrates Court, but refused by Magistrate Merrin on 1 August 2022. Whilst the stay application in the Supreme Court has previously been set for hearing, it has been adjourned pending the determination of an appeal concerning the issuing of subpoenas in that application.

Thirdly, in so far as the application below sought orders concerning disclosure relevant to the committal, both the Magistrates Court and the District Court had made relevant orders, and most importantly, a hearing had already been set in the Magistrates Court to deal with disclosure issues. The appellant was thus seeking that the Supreme Court (and now, this Court) interfere in another court’s conduct concerning matters of practice and procedure.

It is apparent that orders have been made as to disclosure in the Magistrates Court, and a hearing in that respect was set for 9 March 2023, though then adjourned. While the Magistrates Court is seized of those issues, it would be wrong of this Court to intervene absent some clear evidence warranting such a rare course of action. There is none beyond mere assertion by the appellant.

Fourthly, in so far as the orders sought below, and in this Court, concern the delisting of the committal proceeding, a permanent stay has been sought in the Supreme Court. As noted above, that application had previously been set for hearing, but adjourned pending the determination of an appeal concerning the issuing of subpoenas in that application. The orders sought from this Court would unjustifiably interfere with the due hearing of that relief.

Fifthly, the orders sought below, and in this Court, seek to overturn interlocutory orders made by the Magistrates Court. Section 222 of the Justices Act 1886 (Qld), which is the statutory source of the right to appeal orders of the Magistrates Court, does not apply to interlocutory orders.

Sixthly, beyond mere assertion by the appellant, there was no evidence of anything approaching the sort of exceptional circumstances that might justify the Supreme Court interfering in such a way that it would fragment criminal proceedings in another court. It is well established that courts should not interfere with or fracture the course of a criminal proceeding except “where the need for such interference is absolutely plain and manifestly required”. In Obeid, Gageler J adopted what was said by Kirby J in Frugtniet:

“This Court has more than once ... emphasised how rare it is to make orders which would have the effect of interfering in the conduct of a criminal trial. No case has been brought to my notice where the Court has made a stay order equivalent to the one sought on this summons. Although I do not doubt that, in a proper case, the Court would have the jurisdiction to make such an order to protect the utility of its process, it would be truly exceptional for it to do so. The Court expressed its attitude of restraint most recently in its decision in R v Elliott. There are many earlier such cases. They evidence the strong disposition of appellate courts in Australia – and especially of this Court – not to interfere in the conduct of criminal trials except in the clearest of cases where the need for such interference is absolutely plain and manifestly required. Analogous principles apply ... to the provision of a stay to prevent the commencement of a trial so as to permit a constitutional point to be argued. That point will not be lost to the plaintiff. If need be, at a later stage, it can be raised again.”

Seventhly, the appellant’s approach wrongly assumes that the Supreme Court’s supervisory jurisdiction over inferior courts is at large or unconstrained. It is not. It extends to cases where the decision of the inferior court is affected by jurisdictional error in the sense discussed in Kirk v Industrial Court (NSW)[16] and Craig v South Australia.No such jurisdictional error has been identified. A potentially erroneous decision of an inferior court acting within jurisdiction will not ordinarily be amenable to the Court’s supervisory jurisdiction.

Eighthly, the decision of the learned primary judge was made in the exercise of his Honour’s discretion. In order to succeed, the appellant would have to show error of the kind referred to in House v The King; that is to say that the learned primary judge acted on wrong principle, allowed extraneous or irrelevant matters to affect him, mistook the facts, failed to take a material consideration into account, or that the decision was plainly unreasonable or unjust, thereby bespeaking error. No such error has been demonstrated.

Conclusion:-

The appeal is dimissed.

El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 (26 April 2023)

Intro:

The applicants invoke this Court’s supervisory jurisdiction seeking to quash development consent granted by the Land and Environment Court over the first respondent’s neighbouring land because they have established on evidence which was not before that Court that the development exceeds a height restriction applicable to the land. Following a remitter at which facts were found, the principal and dispositive issue is one of statutory construction, namely, whether compliance with the height restriction is a jurisdictional fact which can be reviewed by this Court on the basis of evidence not before the Land and Environment Court. For the reasons which follow, I have concluded that it is not a jurisdictional fact.

Facts:-

Gemaveld applied for approval of development comprising demolition works and the construction of a multi-level dwelling house, swimming pool, front fence, landscaping and site works. The plans approved for Gemaveld’s land are for a residence with four levels, numbered 0 (which is street level), -1, -2 and -3.

The land is zoned residential. The Kogarah Local Environmental Plan 2012 (Kogarah LEP) imposes a height restriction of 9m over all three blocks.

The Council refused development consent, and Gemaveld commenced proceedings in Class 1 of the jurisdiction of the Land and Environment Court. One of the issues identified in the litigation was the height of the building proposed by Gemaveld, and it seems that Gemaveld obtained new plans showing the building envelope sitting wholly within a line drawn 9m from ground level, on both the northern and southern elevations of the proposed development.

Pursuant to s 34 of the Land and Environment Court Act 1979 (NSW), a conciliation conference was conducted and agreement was reached between Gemaveld and the Council. Section 34(3) provides as follows:
(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner—

(a) must dispose of the proceedings in accordance with the decision, and

(b) must set out in writing the terms of the decision.

In April 2022, a Commissioner of the Land and Environment Court satisfied himself that the agreed decision was one that the Court could have made in the proper exercise of its functions and accordingly made orders granting consent: Gemaveld Pty Ltd v Georges River Council [2022] NSWLEC 1182. The Commissioner was explicitly satisfied that “[t]he proposed development complies with the height of building standard of 9m at cl 4.3 of the [Kogarah] LEP”: at [7(3)].

By summons filed in this Court on 6 July 2022, shortly before three months after the Commissioner’s decision, the applicants sought judicial review of the Commissioner’s decision. The fact that they did so within three months means that it is unnecessary to consider the effect of the privative clause in s 3.27 of the Environmental Planning and Assessment Act 1979 (NSW) or the time limitation in r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW). The second and third grounds of the summons were based on a failure to notify and a failure to afford procedural fairness. Those grounds were abandoned after the Council served its evidence. The first and only ground which was pressed was that:-

"The Court had no power to make the decision to grant consent to the DA because it was not a decision that the Court could have made in the proper exercise of its functions, within the meaning of s 34(3) ... in that the height of the proposed development exceeded the relevant height control in the Kogarah [LEP] and there was no request to vary that standard as required by cl 4.6 of that LEP."

It will be clear from the state of the evidence summarised above that the proceedings raised the question of jurisdictional fact acutely. It was common ground in this Court that the 9m height control was exceeded by the proposed developments. But the position before the Commissioner was precisely the opposite. It was common ground before the Commissioner, and the entirety of the evidence pointed in one direction, that there was no exceedance of that height control.

Thus, it is clear that the Commissioner formed the opinion that the proposed building did not exceed the 9m height limit, and it is clear that he did so properly in a manner which is not susceptible to challenge based on the evidence before him. On the other hand, if the power to issue consent turns not on the opinion that the building did not exceed the height control, but on the fact that the building did not exceed the height control, then plainly that fact is not established.

Issue:-

Was the height of the proposed building a jurisdictional fact necessary to enliven the LEC's power undef Section 34(3) of the Land and Environment Court Act?

Consideration:-

The starting point is to construe the power whose exercise is impugned in this proceeding.

Section 34(3) of the Land and Environment Court Act is reproduced above. There is no issue that agreement was reached between Gemaveld and the Council so as to engage the subsection. The Commissioner was thereupon under an obligation to dispose of the proceedings in accordance with the agreed decision, subject only to the words in brackets: “being a decision that the Court could have made in the proper exercise of its functions”.

As Basten JA explained in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [16]:

"If a decision of the Land and Environment Court could be set aside or declared invalid by this Court, it is not “a decision that the Court could have made in the proper exercise of its functions”. Nor would it make sense to read s 34(3) as implicitly authorising such a decision. If the development application lacked essential elements, the deficiencies could render a consent one which could not have been granted in the proper exercise of the Court’s functions."

Jurisdictional fact

When reference is made to a “jurisdictional fact”, the issue is whether a precondition to the exercise of statutory power has been satisfied. The High Court has described jurisdictional facts as “an essential condition of the jurisdiction of the magistrate” (Ridley v Whipp [1916] HCA 76; (1916) 22 CLR 381 at 385; [1916] HCA 76), “an essential preliminary or a condition precedent” to the jurisdiction (Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 385; [1938] HCA 7), “any event or fact or circumstance” which is “made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend” (Parisienne Basket Shoes at 391), a “condition of jurisdiction” (R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 399; [1970] HCA 8), and “a preliminary question on the answer to which ... jurisdiction depends” (R v Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60; (1978) 142 CLR 113 at 125; [1978] HCA 60). Many of the more modern decisions have arisen in the context of challenges to decisions under planning and environmental laws, including Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8, Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2002] NSWCA 422 and Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3. However, there is nothing peculiar to the principles governing jurisdictional facts in decisions made under planning and environmental laws. In Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43]- [44], the High Court noted that the term could be used imprecisely, and gave the following description:-

"The expression “jurisdictional fact” was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

The concept appears from the following passage in the reasons of Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd:-

“The subject matter with which the Industrial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act – it is a condition of jurisdiction.”

One reason for difficulty is terminological. The precondition may be a question of fact. Alternatively it may be merely that the donee of the power be satisfied of or hold the opinion that the precondition is satisfied. There is a difficulty of nomenclature here, because the attainment of a state of satisfaction or the holding of an opinion is itself a question of fact as to the state of mind of the donee of the power.

Application to a consent granted by the Land and Environment Court following a conciliation conference

Significantly, the development consent challenged in the present appeal was granted by the Land and Environment Court constituted by a Commissioner exercising the power conferred by s 34(3) of the Land and Environment Court Act , rather than by the local council exercising the powers and functions under ss 4.15 and 4.16 of the Environmental Planning and Assessment Act, as had been the case in Ross v Lane. It was primarily on this basis that the applicants sought to distinguish the result reached in Ross v Lane.

However, the only issue for the Commissioner was whether the decision to which Gemaveld and the Council had agreed during the conciliation conference was one which could have been made by the Land and Environment Court in the proper exercise of its functions. That involves a notional inquiry. But it involves the same considerations, and the same powers, as if there had been a hearing by that Court in the exercise of Class 1 of its jurisdiction, and that in turn involves the same powers and functions of the consent authority, including ss 4.15 and 4.16. In order for the Commissioner to determine whether the decision to which the parties had reached agreement was one which “the Court could have made in the proper exercise of its functions” within the meaning of s 34(3), it was necessary to identify the powers and functions of the Court determining an appeal from the refusal of Gemaveld’s application under s 8.7 of the Environmental Planning and Assessment Act, which included at least by reason of s 8.14 “all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal”, and that picked up the obligations to have regard to the matters in s 4.15(1) and to exercise the power in s 4.16(1).

Thus on the reasoning upheld by this Court in Ross v Lane, compliance with cl 4.3 of the Kogarah LEP being a matter to which regard was required pursuant to s 4.15(1)(a) was not a jurisdictional fact.

Conclusion:-

For those reasons, there is no material difference for the purposes of jurisdictional facts, between a development consent granted “on the merits” whether by the consent authority or by the Land and Environment Court after hearing an appeal, and a development consent granted under s 34(3) following a successful conciliation conference. In both cases, environmental planning instruments are a mandatory consideration by reason of s 4.15(1)(a). In the case of a determination on the merits, that occurs at the time the power is exercised. In the case of a successful conciliation conference, that occurs when the Court forms the opinion required by s 34(3) that the agreed decision is one which the Court could have made in the proper exercise of its functions. But in neither case is compliance with the environmental planning instrument a jurisdictional prerequisite to the power to grant consent.

It is plain that the Commissioner had regard to cl 4.3 of the Kogarah LEP. He expressly formed the only view that was open to him on the evidence which was available to him, namely, that there was compliance with the height requirement. That decision is not vitiated merely because the applicants can establish, by evidence not made available to the Commissioner, that there was not compliance with that clause.

Accordingly, the amended summons filed on 2 August 2022 must be dismissed.

Parry v Secretary, Department of Health [2023] HCA 9 (16 March 2023)

Intro:-

By way of an application for a constitutional writ filed on 20 December 2022, the plaintiffs seek a writ of certiorari quashing the respondent Secretary's decision (or decisions) under the Therapeutic Goods Act 1989 (Cth) ("the TG Act") in relation to use of the SPIKEVAX (elasomeran) COVID-19 vaccine in children six months of age and older. The plaintiffs alternatively seek a declaration that the Secretary's decision was made unlawfully. A writ of mandamus was originally sought but that part of the application is no longer pressed. The plaintiffs request expedition.

Facts:-

There is some ambiguity as to whether the plaintiffs seek to challenge the Secretary's provisional determination made on 9 November 2021 with respect to the SPIKEVAX vaccine, being a decision made under s 22D of the TG Act; the Secretary's decision made on 19 July 2022 to provisionally register the SPIKEVAX vaccine for use in children, being a decision made under s 25(3)(a) of the TG Act; or both. For present purposes, nothing turns on that ambiguity and it is sufficient to proceed on the basis that the plaintiffs are challenging whichever decisions by the Secretary concerning the SPIKEVAX vaccine are open to challenge by them.

The plaintiffs' application is made on two grounds. The first is that the Secretary's decision was unreasonable. The plaintiffs allege that is so because the Secretary could not have reasonably been satisfied of the safety and efficacy of the vaccine, or that its apparent benefits outweighed the associated risks, having regard to the evidence viewed properly and in context. The second is that the Secretary failed to comply with s 30C(2) of the TG Act, which requires the Secretary to give written notice to the Gene Technology Regulator if the therapeutic good is or contains a genetically modified product or organism, and that the decision is therefore invalid. The application is supported by a number of supporting affidavits totalling more than 2,000 pages. Applications for leave to intervene have been filed by Toni Reihana and William Anicha Bay.

Issue:-

Where significant case management and fact finding required, is the matter suitable to be heard in original jurisdiction of High Court of Australia or should the matter be remitted to the Federal Court?

Consideration:-

Section 44(1) of the Judiciary Act 1903 (Cth) empowers the Court on application or by its own motion to remit any matter pending before the Court, subject to exceptions not presently relevant, to another court that has jurisdiction with respect to the subject-matter of and the parties to the proceeding. Section 44(4) provides that such order may be made without an oral hearing. Whilst no formal application has been filed by a party seeking remittal of the matter to another court, the plaintiffs' application anticipated the possibility of remittal and made submissions opposing that course. In the Secretary's response filed 9 February 2023, the Secretary submitted the matter should be remitted to the Federal Court of Australia. In their reply filed 27 February 2023, the plaintiffs responded to the Secretary's submissions on remittal. Accordingly, both parties have had the opportunity to make, and have made, submissions on the issue of remittal, to which I now turn.

The Secretary submits the proceeding should be remitted to the Federal Court, which would have jurisdiction over the subject-matter of the proceeding under s 39B(1) or (1A)(c) of the Judiciary Act. In opposing remittal, the plaintiffs submit that this Court is the only appropriate forum for determination of the proceeding because their claim invites the Court to identify and apply a new category of standing based on the special interest said to arise "[w]here the fabric of human life might be compromised or adversely impacted". Although the plaintiffs acknowledge that "the subject matter of these proceedings is extremely complex (involving issues of modern science)" and that factual disputes may arise, they submit that the nature of any such disputes will be limited to genetically modified medicines and that in any event that factor should not be determinative.

The power to remit is discretionary, "to be exercised after due consideration of all the circumstances of the case". It has been observed that whether the Court exercises that power or permits a proceeding to continue in this Court is a matter "not just for the parties, but for the Court". In that regard, the statement of Brennan CJ in Ravenor Overseas Inc v Readhead as to the purpose of the remittal power is instructive:

"The power of remitter contained in s 44 of the Judiciary Act 1903 (Cth) is designed to ensure that this Court is not diverted from its principal functions by the need to hear and determine matters in the original jurisdiction which could properly be brought in an Australian trial court."

This matter is not suitable to be heard in the original jurisdiction of this Court. It is evident from the parties' submissions that they are unlikely to reach agreement on a set of agreed facts, raising the prospect that significant fact finding will be required. From the parties' respective positions there can be discerned a series of factually intensive issues on which they are, or are likely to become, in dispute, including the nature and extent of the plaintiffs' interest and its sufficiency for purposes of establishing standing, which is acknowledged to be a question of "fact and degree"; whether the vaccine at issue is or contains a genetically modified product or organism (a showing required to be made for the second ground to succeed); and the factual findings of the Secretary's delegates that supplied the basis for the challenged decision. Lay and expert evidence may be required to resolve those issues. The vaccine is sponsored by Moderna Australia Pty Ltd, and it is foreseeable that a question as to its joinder as a party might arise.

Having regard to these considerations, significant case management and fact finding are likely to be required to conduct a hearing of the kind contemplated by the application. Undertaking that task would unduly divert the Court from its principal functions. By contrast, a trial court will be better positioned to case manage the proceeding appropriately and determine contested questions of fact. If the first-instance decision were to be appealed or the subject of an application for judicial review, the appellate court would have the benefit of the trial judge's findings of fact.

I am satisfied that this matter is one "arising under" the TG Act for purposes of s 39B(1A)(c) of the Judiciary Act, and that the Federal Court has jurisdiction over its subject-matter and the parties on that basis. I am also satisfied, for the reasons set out, that this Court should exercise its discretion under s 44(1) of the Judiciary Act to remit the matter to the Federal Court.

Finally, the issues of intervention and expedition and the need for any extension of time for the plaintiffs to seek certain forms of relief are not for this Court to decide, but rather matters for the Federal Court on remitter.

Conclusion:-

The matter be remitted to the Sydney Registry of the Federal Court of Australia.

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10 (12 April 2023)

Intro:-

Two appeals are brought from a decision of the Full Court of the Federal Court of Australia.

Facts:-

Each arises out of an application in the original jurisdiction of the Federal Court for judicial review of a decision of a departmental officer not to refer to a Minister a request to exercise the power conferred on that Minister by s 351(1) of the Migration Act 1958 (Cth) ("the Act") to substitute in the "public interest" a more favourable decision for a decision made or taken to be made by the Administrative Appeals Tribunal ("the Tribunal") under s 349(2)(a) of the Act affirming a refusal by a delegate of the Minister to grant the applicant a visa. The Full Court dismissed an appeal from the dismissal of each application.

Each departmental decision not to refer a request to the Minister was made in purported compliance with instructions issued in 2016 by the then Minister for Immigration and Border Protection ("the 2016 Ministerial Instructions")[2]. The 2016 Ministerial Instructions relevantly instructed departmental officers not to refer a request to exercise the power conferred by s 351 of the Act to a Minister in any case which departmental officers assessed not to "have unique or exceptional circumstances". Each departmental decision not to refer turned on the departmental officer assessing the case in relation to which the request was made not to meet that criterion for referral.

Issue:-

Did the 2016 Ministerial Instructions purport to instruct departmental officers to make decisions required to be exercised personally by Minister?

Consideration:-

The nature and content of the statutory power

Section 351 provides:

"(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
..

(3) The power under subsection (1) may only be exercised by the Minister personally.

(4) If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

(a) sets out the decision of the Tribunal; and

(b) sets out the decision substituted by the Minister; and

(c) sets out the reasons for the Minister's decision, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.

...

(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances."

The references throughout s 351 to "the Minister" encompass any of the Ministers who from time to time administer that section in accordance with Administrative Arrangements Orders issued by the Governor-General[6] as well as any other Minister who might be authorised to act on behalf of such a Minister.

Section 351(1) is a conferral of power on the Minister. Section 351(3) and s 351(7) explain the nature of the power so conferred. The prescription in s 351(3) that the power may only be exercised by the Minister personally means that the power is neither delegable by the Minister under s 496 of the Act nor exercisable on the Minister's behalf by any officer of the Department administered by the Minister under s 64 of the Constitution The prescription in s 351(7) that the Minister does not have a duty to consider whether to exercise the power in any circumstances means exactly what it says. Under no circumstances can the Minister be compelled to exercise the power.

But the power conferred by s 351(1) to make the procedural decision not to consider making a substantive decision in a class of case is not unbounded. The power is bounded by the exclusivity which s 351(3) attaches to the totality of the power which s 351(1) confers on the Minister and which s 351(3) attaches in particular to the assessment of the public interest. Plainly, it would not be open to the Minister to decide not to consider making a substantive decision in a class of case defined by reference to whether a departmental officer or any other person might think it to be not in the public interest to substitute a more favourable decision for a decision of the Tribunal. For the Minister to do so would be for the Minister to abdicate to that other person the core aspect of the substantive decision-making power under s 351(1) which s 351(3) makes clear can be exercised by no one but the Minister.

The statutory power limits the exercise of executive power

The unanimous reasons for judgment of this Court in Brown v West contain the following statement of constitutional principle:

"Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute. A valid law of the Commonwealth may so limit or impose conditions on the exercise of the executive power that acts which would otherwise be supported by the executive power fall outside its scope."

The principle is central to the relationship between the Commonwealth Parliament and the Executive Government of the Commonwealth within the system of representative and responsible government established by Chs I and II of the Constitution. The principle was applied in Brown v West to hold that a "necessary implication" of the statutory fixing of the expenditure able to be incurred by a parliamentarian using a postal credit card was to deny the existence of executive power to increase the level of expenditure. The principle is applicable here.

Section 64 of the Constitution requires that Ministers be appointed to administer departments, although it permits several Ministers to be appointed to administer the one department. Section 67 of the Constitution makes clear that departmental officers, like Ministers, are "officers of the Executive Government of the Commonwealth"[.

The relationship between a Minister and the department administered by the Minister which can ordinarily be taken to be contemplated by the Parliament when conferring a discretionary statutory power on a Minister is that described by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:-

"The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a Department's function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and précis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision."

When conferring on a Minister a discretionary statutory power unaccompanied by any duty to consider its exercise, the Parliament can ordinarily be taken to contemplate that the Minister will be able to task the department administered by that Minister with sorting the wheat from the chaff so as to bring to the personal attention of the Minister only those requests for exercises of discretionary statutory powers which departmental officers assess to warrant the Minister's personal consideration. The Parliament can be taken to contemplate that, in undertaking such assessments, departmental officers will comply with instructions issued by or under the authority of the Minister or the Secretary of the department.

All of this accords with the general observation that "when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his department". The "underlying principle" throughout is that "where a power or function is conferred on a Minister, in circumstances where, given administrative necessity, Parliament cannot have intended the Minister to exercise the power or function personally, an implied power of delegation (or agency) may be inferred". But the availability of such an inference must ultimately depend on the precise statutory scheme.

In enacting s 351 of the Act, the Parliament has seen fit to entrust to the Minister alone the evaluation of the public interest in substituting a more favourable decision for a decision of the Tribunal. A necessary implication of the exclusivity imposed by s 351(3) on the power which s 351(1) confers on the Minister is to deny the existence of executive power to entrust the dispositive evaluation of the public interest in substituting a more favourable decision to an executive officer other than the Minister.

Put another way, the extension by s 61 of the Constitution of the executive power of the Commonwealth to "the execution and maintenance ... of the laws of the Commonwealth" does not authorise a Minister or any other officer of the Executive Government of the Commonwealth to undertake any non-statutory action that is expressly or impliedly excluded by a law of the Commonwealth. By confining evaluation of the public interest for the purpose of s 351(1) to the Minister personally, s 351(3) of the Act effects such an exclusion.

That is the statutory limitation on executive power which will be seen to be transgressed by the 2016 Ministerial Instructions and by the two impugned departmental decisions made in purported compliance with the 2016 Ministerial Instructions.

Conclusion:-

Appeal is allowed and the First Respondent is to pay costs of the Appellants.

GWRV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 39 (15 March 2023)

Intro:-

This is an appeal against a decision of the primary judge to refuse to grant constitutional writ relief against a decision of the Administrative Appeals Tribunal (the Tribunal) to uphold a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), to refuse to grant a protection visa to the appellant. The Tribunal’s refusal was on the ground that the Serious Crime Exclusion applied and that accordingly, the appellant was not considered a refugee by operation of s 5H(2)(b) of the Migration Act.

Facts:-

To be granted a protection visa, an applicant must satisfy at least one of the criteria specified in s 36(2) of the Migration Act 1958 (Cth) (Migration Act); the refugee criterion: s 36(2)(a) and (b), and the complementary protection criterion: s 36(2)(aa) and (c). In respect to each, the criterion cannot be met if the decision-maker determining the visa application forms the view that there are serious reasons for considering that the person seeking the visa has committed a serious non-political crime before entering Australia (Serious Crime Exclusion). Although located in different sections of the Migration Act, a substantively identically worded Serious Crime Exclusion disentitling an applicant to refugee and complementary protection applies in respect to each: see s 5H(2)(b) and s 36(2C)(a)(ii).

The appellant is a citizen of Mongolia who arrived in Australia in 2017 on a tourist visa and then moved onto a series of bridging visas. In 2018, his bridging visa was cancelled and he was detained in immigration detention. He applied for the relevant protection visa in 2018. His application was refused by a delegate who found that the appellant was not a refugee within the meaning of s 5H(1) of the Migration Act. Following a successful application for review in the Tribunal (heard within the Migration and Refugee Division of the Tribunal), the appellant's visa application was remitted for consideration with a direction that he is a refugee within the meaning of s 5H(1).

Subsequently, a decision was made by a delegate of the Minister to refuse to grant the appellant a protection visa under s 65 of the Migration Act. The delegate expressly found the Serious Crime Exclusion applied in the context of both the refugee criterion (s 5H(2)(b)) and in the event that the complementary protection criterion was satisfied (s 36(2C)(a)(ii)). The delegate also found that the appellant did not meet the complementary protection criterion because the delegate formed the view that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Mongolia, there was a real risk that the appellant would suffer significant harm (s 36(2)(aa)).

The Tribunal’s Decision

The Tribunal found that the appellant did not meet the refugee criterion because the Serious Crime Exclusion in s 5H(2)(b) of the Migration Act applied.

Relevantly, the Tribunal was satisfied that there were serious reasons for considering that the appellant had committed the crimes of murder and the procurement of murder, and that each of these were serious non-political crimes. On this basis, the Tribunal found that the appellant did not meet the meaning of refugee by operation of s 5H(2)(b). Accordingly, the appellant was not entitled to a protection visa under s 36(2)(a).

It was accepted by both parties that the Tribunal, unlike the delegate, did not go on to consider separately whether the appellant satisfied the complementary protection criterion in s 36(2)(aa). Further, the Tribunal did not separately consider whether the Serious Crime Exclusion also applied in the context of complementary protection. Nor did the Tribunal discuss whether the Serious Crime Exclusion was substantively identical in the context of protection for refugees and complementary protection and therefore, whether it was of the view that the Serious Crime Exclusion would necessarily apply for complementary protection.

The proceeding before the primary judge

The appellant then applied for constitutional writ relief before the primary judge, who dismissed the application: GWRV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 602 (Primary Judgment). The appellant argued in substance the same sole ground of appeal before the primary judge as he argues before this Court, namely that the failure to consider the complementary protection criterion was a jurisdictional error. The primary judge ultimately found at [26] that:-

there could be no error in the Tribunal when sitting in its General Division failing to consider the aspects of the complementary protection criterion that did not concern the Serious Crime Exception. Review of that aspect was outside its jurisdiction. However, it was obliged to consider whether the Serious Crime Exception applied to complementary protection.

Relevantly, the primary judge also found at [29] that the failure to consider complementary protection was not material, because the appellant had conceded that had the Tribunal considered complementary protection, the appellant could not have succeeded on that ground given the finding that the Serious Crime Exclusion applied.

Issues:-

Where first decision maker found complementary protection criterion in s 36(2)(aa) of the Migration Act not satisfied, did bifurcated system of review require Tribunal to also consider s 36(2)(aa)?

Was failure to consider s 36(2)(aa) a material error?

Consideration:-

For the reasons that follow, we are of the view that the Tribunal correctly exercised its decision-making authority when it did not separately consider the complementary protection criterion in s 36(2)(aa) of the Migration Act. It erred, however, in failing to consider the Serious Crime Exclusion in the context of that criterion, because in this case the refusal of complementary protection was, at least in part, based on the Serious Crime Exclusion. But it was necessary for the error to be material in order to be a jurisdictional error, and it was not material.

In that context, before addressing the issues it is appropriate to recall that the Serious Crime Exclusion that disentitles an applicant to refugee and complementary protection is relevantly in substantively identical terms. Section 5H(2) operates to negate a finding that a particular person is a refugee under s 5H(1):

5H Meaning of refugee

...

(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:

(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(b) the person committed a serious non‑political crime before entering Australia; or

(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.

(emphasis added)

Section 36(2C)(a) operates to negate a finding that a person satisfies the complementary protection criterion under s 36(2)(aa):

36 Protection visas—criteria provided for by this Act

...

(2C) A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

(a) the Minister has serious reasons for considering that:

(i) the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(ii) the non‑citizen committed a serious non‑political crime before entering Australia; or

(iii) the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

(emphasis added)

As readily apparent from the text of those provisions, the exclusion is based on the assessment of the offending conduct, and therefore, satisfaction of one provision necessarily would also result in satisfaction of the other. It would disentitle the applicant to a protection visa on either criterion.

Given that the Tribunal did not turn its mind to and consider separately whether the Serious Crime Exclusion applied to complementary protection, it must follow that it erred to that extent. However, that does not mean that the Tribunal did not consider, as a matter of fact and substance, whether the Serious Crime Exclusion applied to the circumstances of the applicant’s case on review. Thus, the matter comes down to materiality, to which we now turn.

Materiality

We are of the opinion that the materiality requirement that ordinarily applies (MZAPC at [33]) means that the error made was not jurisdictional. Further, as the primary judge concluded, if it had been an error for the Tribunal not to have considered satisfaction of the complementary protection criterion at all, that would not have been material either.

Properly understood, the High Court in MZAPC, enunciated a test for the consideration of jurisdictional error (assuming materiality has been raised as an issue) that has two aspects. First, the reviewing court must consider whether the decision-maker fell into any error. We note that in this case we have found that there was such an error on the part of the Tribunal. Second, if error is identified the reviewing court must consider whether it was material. The majority in MZAPC held that:-

"the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition."

(italics in original)

It is true that the High Court in MZAPC contemplated that there might be some categories of error to which the ordinary threshold of materiality does not apply. The majority said:-

"There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another."

(citations omitted)

However, we are of the view that neither the type of error we have found occurred, nor the type of error alleged by the appellant, is of such a nature. In relation to the first, the Tribunal did perform the essence of the task conferred on it by s 500(1)(c) and, in fact and substance, considered the Serious Crime Exclusion, albeit not in the context of complementary protection. And as the primary judge similarly reasoned in relation to the second, alleged error: the Tribunal did conduct a review but, on the appellant's case, misunderstood the extent of its jurisdiction. The ordinary requirement of materiality applies to an alleged error of that kind.

As to whether the error we have found was material, there is an artificiality in the position that the Tribunal was required to separately consider the Serious Crime Exclusion in respect to complementary protection. It is difficult to discern, as a matter of practicality, what separate consideration of the Serious Crime Exclusion would entail. An additional sentence in the Tribunal's decision to the effect that the Serious Crime Exclusion would equivalently apply in the context of the complementary protection criterion, had that criterion been established, would have sufficed. This is the case, noting also that there is no challenge to the finding that the Serious Crime Exclusion applied in respect to the refugee criterion. So if the Tribunal had turned its mind to the question in the context of complementary protection, it would inevitably have found that the exclusion also negated satisfaction of that criterion.

It is also perfectly clear what would have happened if the Tribunal's reasoning had been unaffected by the other, alleged error. Having determined that the appellant was not a refugee because of the operation of the Serious Crime Exclusion in s 5H(2), the Tribunal, if it separately considered the complementary protection criterion, would have refused to grant the protection visa because of the Serious Crime Exclusion in s 36(2C)(a)(ii). This would have been so regardless of whether the Tribunal formed the view that the complementary protection criterion was satisfied: s 36(2)(aa). No such finding could survive the operation of the Serious Crime Exclusion in s 36(2C)(a)(ii) and cause the Tribunal to grant the appellant a protection visa. So much was conceded by the appellant below. As the primary judge correctly concluded, given that concession, the failure to consider complementary protection was not material and there was no jurisdictional error.

The concession was properly made. While it is true that each of s 36(2)(a) and (aa) provide independent criteria, the satisfaction of which can result in the grant of a protection visa, they are both subject to the same Serious Crime Exclusion. As explained above, the Serious Crime Exclusion is worded in substantively identical terms with respect to both criteria. There is no possibility that had the Tribunal proceeded to consider whether the appellant was entitled to complementary protection that it would have granted him a protection visa, because he would have been disentitled under the Serious Crime Exclusion in s 36(2C)(a)(ii). So much was accepted by the appellant.

Accordingly, even if the Tribunal did err in failing to separately consider the complementary protection criterion, we would find that the appellant has not discharged his burden to show that error to be material. Further, we do not consider that any error has been identified in the primary judge’s reasons on materiality.

Conclusion

For the reasons above, the appellant has failed to identify any error in the Primary Judgment and the appeal must be dismissed. There is no reason why costs should not follow the event and, accordingly, we order that the appellant pay the first respondent’s costs.