Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 7 (15 January 2022)

Intro:-

On 6 January 2022, a delegate of the Minister for Home Affairs purported to decide that the applicant’s visa be cancelled and he be removed from Australia (first decision). To that end, the applicant was immediately placed in detention.

In proceeding No MLG35/2022 wherein Novak Djokavic was applicant and the Minister for Home Affairs was respondent, orders were made on Monday, 10 January 2022 quashing the purported first decision to cancel the visa and that the applicant be released from detention forthwith. The parties were agreed in the making of those orders. The applicant’s visa took effect upon that Order becoming operative and the applicant was released from detention thereafter.

When that Order was made on 10 January 2022, counsel for the respondent informed the Court of his instructions that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs may consider whether to exercise a personal power of cancellation pursuant to sub-section 133C(3) of the Migration Act 1958.

The applicant has furnished submissions and supporting documentation to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs against the exercise of the personal power to cancel his visa.

At about 5:45 p.m., on Friday, 14 January 2022, the respondent, made a decision, purportedly pursuant to s 133C(3) of the Migration Act 1958, to cancel the applicant’s visa, doing so on the stated ground that the power conferred by par 116(1) of the Migration Act 1958 was engaged “on health and good order grounds, on the basis that it was in the public interest to do so” (second decision). The applicant contends that the reasons assigned by the respondent for the making of the second decision are substantively different from those of the delegate who made the first decision.

In a proceeding commenced this day, the applicant seeks to contend that the second decision, purportedly made under s 133C(3) of the Migration Act, is also tainted by material jurisdictional error and should be quashed. The respondent to this proceeding also disputes those contentions.

Facts:-

The applicant, a Serbian citizen, is a professional tennis player of international renown.

On 18 November 2021, the applicant was issued his temporary activity visa.

It does not appear that any provisions or conditions (of the kind which are not uncommonly located, for example, in the Migration Regulations 1994 (Cth) or ministerial directions as may be authorised and made pursuant to s 499 of the Migration Act 1958), expressly proscribed the applicant from travelling to, entering or remaining temporarily in Australia where he had not been vaccinated against Covid-19. The search for any such express proscription lay elsewhere.

Any general express requirement for such vaccination may be located in various documents promulgated by the Australian Technical Advisory Group on Immunisation (ATAGI), a body established by the Commonwealth Department of Health. The first is entitled “ATAGI expanded guidance on acute major medical conditions that warrant a temporary medical exemption relevant for Covid-19 vaccines” that was updated on 26 November 2021. This guidance was augmented by further advice furnished by ATAGI on 14 December 2021 in relation to the definition of the expression “fully vaccinated” as applied, it seems, to “people returning from overseas travel”. While the status of this ‘guidance’ remains to be determined, the court takes judicial notice of the significant impact which the outbreak of this pandemic has had worldwide and in particular, on the Australian economy, its peoples, their livelihoods, their physical and mental health and that these are matters for government policy. So much was accepted by the parties: Evidence Act 1995 (Cth), ss 144(1)(a)-(b), 144(4).

Interim relief was granted to the applicant late on 6 January 2022 and the matter was set down for final hearing to commence on Monday, 10 January 2022 (with a number of interim hearings being conducted on 8-9 January 2022). Ultimately, the parties to that proceeding were agreed in orders quashing the cancellation decision made on 6 January 2022 and for the applicant’s immediate release from detention. However, at the time when those orders were pronounced, counsel for the Minister for Home Affairs quite candidly and properly disclosed to the court his instructions that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had under active consideration whether the personal power conferred by s 133C(3) of the Migration Act 1958 to cancel the applicant’s visa would be exercised.

At a time that is presently not disclosed by the evidence, the parties to this proceeding engaged in further communications, including that the applicant made detailed submissions (and supplied supporting documentation) to the respondent in relation to the exercise of power pursuant to s 133C(3) of the Migration Act 1958. The respondent took some time to consider those submissions. At about 5:45 p.m. on Friday, 14 January 2022, the respondent made a decision to cancel the applicant’s visa, purportedly doing so in the exercise of power under s 133C(3).

In a media statement made by the respondent, the Minister advised that the exercise of his power under s 133C(3) “on health and good order grounds, on the basis that it was in the public interest to do so.” The Minister further advised that his decision followed orders made by this court on 10 January 2022, quashing the first decision on procedural fairness grounds alone (and as to which it may be noted the parties were agreed in the making of those orders). The Minister further stated that in making his decision he had “carefully considered information provided to me by the Department of Home Affairs, the Australian Border Force and Mr Djokovic.” The Minister expressed the government’s firm commitment “to protecting Australia’s borders, particularly in relation to the Covid-19 pandemic.” Upon the principles considered below he is liable to be placed in detention immediately. In that connexion the applicant would be being treated no differently from any other person who, for the purposes of the Migration Act 1958, answers the description of an unlawful non-citizen.

Having regard to the urgency of the matter, no formal application was filed and upon the undertaking of his senior counsel to file and serve such a document, the court was amenable to the application proceeding on the basis of an oral application.

Judicial Review

Part 8 of the Migration Act 1958 is entitled Judicial review, and comprises ss 474-484. Within Div. 1 of Pt. 8, s 474(1) provides that a “privative clause decision” is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called into question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. In s 474, the expression “privative clause decision” has the meaning given to it by s 474(2) and includes a decision, relevantly cancelling a consent or permission (including a visa): Migration Act 1958, par 474(3)(c). Further, sub-ss 474(4)-(5) of the Migration Act 1958, identify, by a process of exclusion, certain kinds of decisions made pursuant to specified provisions of the Act and regulations which are not privative clause decisions.

A decision, or a purported decision, made under s 133C(3) to cancel a visa is not excluded and so falls within the definition of a privative clause decision under Pt 8 of the Migration Act 1958.

Subject to s 476 of the Migration Act 1958, this court has the same original jurisdiction in relation to migration decisions as the High Court has under par 75(v) of the Constitution. However, it has no jurisdiction in relation to a primary decision or a privative clause decision.

Being a privative clause decision, the respondent’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error: Migration Act 1958, ss 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision: Migration Act 1958, s 476(2).

The judicial review of an administrative decision is confined to an examination of the legality of the decision under review. It is not a procedure in the nature of an appeal which permits a general review of the decision or a substitution of the decision which the court considers ought to have been made: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41-42; Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [23] (French CJ, Bell, Keane and Gordon JJ).

The applicant bears the onus of demonstrating that the approach taken by the decision-maker manifested a legally erroneous view as to what the application for merits review was about such that the decision-maker thereby lacked authority to make the decision that was made: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [24] (French CJ, Bell, Keane and Gordon JJ) citing Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, [55] (Gleeson CJ and McHugh J).

The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). The court’s role on judicial review is supervisory and confined: “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.” Attorney-General (NSW) v Quin (1990) 170 CLR 1, [36] (Brennan J); see also, Minister for Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408, [51] (Gageler J).

Applicable principles – visas to travel to, enter and remain in Australia

The object of the Migration Act 1958 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. In the advancement of that object, the Act provides for visas permitting non-citizens to enter or remain in Australia, it being intended that the Act be the only source of a non-citizen’s right to so enter or remain in this country and that the Act should provide for the removal or deportation from Australia of non-citizens whose presence in Australia is not, or is no longer, permitted: Migration Act 1958, s 4.

Within Pt. 2 of the Act, Arrival, presence and departure of persons, Sub-div D of Div. 3, Visas for non-citizens, provides that Visas may be cancelled on certain grounds and comprises ss 116-118. A visa may be cancelled when a non-citizen is in immigration clearance: Act, par 117(1)(b). Section 116, which is of particular import to the present application confers power on the Minister to cancel a visa in certain circumstances and relevantly provides:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)-(c) . . .

(d) if its holder has not entered Australia or has so entered but has not been immigration cleared – it would be liable to be cancelled under Subdivision C (information given by holder) if its holder had so entered and been immigration cleared; or

(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i) the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii) the health or safety of an individual or individuals; or

(f)-(g) . . . .

(1AA)-(2) . . .

(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

It is convenient to observe s 116 is structured so as to provide, disjunctively, for a series nine broad categories of circumstance in which the statutory power conferred by that section may be engaged. For the purposes of the Act, the term ‘prescribed’ means prescribed by the regulations: Act, s 4. It does not appear that any other provisions in s 116 are relevant.

Ministerial cancellation of visas

Within Div. 3 of Pt. 2, Sub-div. FA, which comprises ss 133A-133F, addresses the subject, Additional personal powers for Minister to cancel visas on section 109 or 116 grounds.

By way of overview, amongst the several personal powers conferred on the Minister under this subdivision of the Migration Act 1958, the provisions are structured in a manner which distinguish between those actions by the Minister to which the rules of natural justice will apply, and to those other actions to which any natural justice requirements are expressly excluded. Repeated features of the provisions of this Sub-div FA include that: (a) the powers to cancel a visa are conferred in imperative terms which require the Minister to exercise the power personally (i.e. such powers are non-delegable); (b) the provisions are expressed in terms making it clear that the power of cancellation is not coupled with a duty to consider whether to exercise certain other powers; (c) in some cases, the scope of the cancellation power is not limited by s 138(4) (and which, although immaterial, removes power in the Minister to vary or revoke a decision to cancel a visa after a record of such decision has been made).

Section 133C is entitled Minister’s personal powers to cancel visas on section 116 grounds and is structured under three subheadings: Action by Minister – natural justice applies; Action by Minister – natural justice does not apply, and; Ministers exercise of power.

Relevantly, ss 133C(3)-(6), each of which fall within the second category above (Action by Minister – natural justice does not apply), read:

(3) The Minister may cancel a visa held by a person if:

(a) the Minister is satisfied that a ground for cancelling the visa under section 116 exist; and

(b) the Minister is satisfied that it would be in the public interest to cancel the visa.

(4) The rules of natural justice, and the procedures set out in Subdivisions E and F do not apply to a decision under subsection (3).

(5) The Minister may cancel a visa under subsection (3) whether or not:

(a) the visa holder was given a notification under section 119 in relation to the ground for cancelling the visa; or

(b) the visa holder responded to any such notification; or

(c) the Administrative Appeals Tribunal . . .

(i) . . .

(ii) . . .

(d) a delegate of the Minister decided to revoke, under subsection 131(1), a cancellation of the visa in accordance with section 128 in relation to the ground.

(6) If a decision was made as mentioned in paragraph 5(c), the power under subsection (3) to cancel a visa is a power to set aside that decision and cancel the visa.

Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section)

In the result, the personal power conferred on the Minister to cancel the visa under s 133C(3) is a power: (a) to which the rules of natural justice do not apply; (b) to which the procedures set out in Sub-div E (notice of cancellation and provision of particulars coupled with invitation to comment within prescribed period et cetera), do not apply; (c) to which the procedures set out in Sub-div F (cancellation for visa holders outside of Australia, provision of particulars coupled with invitation to comment within prescribed period et cetera), do not apply. Where the power is engaged, it may be exercised whether or not the visa holder was: (i) notified pursuant to s 119 that cancellation of the visa was under consideration; (ii) given particulars of the grounds under s 116 upon which it appeared to exist that the Minister may be satisfied the visa might be cancelled, or; (iii) invited to show, within a specified time that such ground did not exist or there was good reason why the visa should not be cancelled.

Above the heading to ss 133C(7)-(10), Minister’s exercise of power, provision is made that the power of cancellation is non-delegable and is not coupled, relevantly, with a duty to consider whether to do so. Further, s 117 which makes provision for the circumstances “When visa may be cancelled” applies, so far as is material to the conferral of power under s 133C(3) and so applies “in the same way as it applies to the cancellation of a visa under section 116.”

Section 133F confers power on the Minister to revoke certain cancellation decisions, including those made under s 133C(3).

As the text of s 133C(3) makes clear, and as is confirmed by its context within the broad range of other cancellation powers conferred by Div. 3 of Pt 2 and the other cancellation powers conferred by the Migration Act 1958 more broadly (including, for example, s 500), the personal discretionary power of cancellation is confined by its express terms.

It is beyond the scope of the present application to determine whether or not the limitations on the power conferred by s 133C(3) serve to magnify or diminish the importance of demonstrating the existence of facts and circumstances upon which the Minister could properly determine that he or she should or should not be satisfied that: (a) a ground for cancelling the visa under s 116 exists, and; (b) it would be in the public interest to cancel the visa. For immediate purposes the self-evidently significant and immediate consequences of cancellation to the visa holder should be observed. But it is in the context of those significant and immediate consequences that demonstration of the existence of facts and circumstances capable of supporting a conclusion that each of the criterion in s 133C(3)(a) and (b) (namely, the existence of a valid ground under s 116 for cancellation together with a conclusion it would be in the public interest to cancel the visa fall for examination) are of such importance.

Upon cancellation, a person who held a valid visa becomes an unlawful non-citizen. Persons who are unlawful non-citizens are to be detained and removed from Australia as soon as is reasonably practicable, including where the non-citizen asks the Minister, in writing, to be so removed: Migration Act, ss 14, 189, 198.

Issue:-

1) Whether the minister's decision is a privative clause decision for the purposes of the Migration Act, 1958 (Cth)?

2) where Minister for Immigration cancels applicant's visa pursuant to personal powers conferred by Section 133C(3) of Migration Act 1958 (Cth), whether Minister is satisfied that a ground for cancelling the visa under section 116 exists and whether it is in the public interest to do so?

3) Whether it was in the administration of justice to transfer the proceeding to the Federal Court?

Consideration

Ground 1

The respondent’s cancellation decision is a privative clause decision for the purposes of s 476 of the Migration Act 1958 and accordingly this court’s jurisdiction is confined by that section.

Unless the applicant, who bears the onus of proof, is able to demonstrate that the respondent’s cancellation decision is tainted by jurisdictional error, the court has no jurisdiction to quash it, or to grant relief in relation to it, and the decision is thus final and conclusive. However, and despite the very wide terms in which it is expressed, a statutory, non-delegable, discretion to cancel a visa pursuant to s 133C(3) is by nature, neither unfettered nor at large.

Ground 2

In NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, 123 FCR 298, French J (as his Honour then was), stated:-:

"In determining whether a decision made in purported exercise of a statutory power is invalid for exceeding that power, it is necessary to consider the provision conferring the power and its constitutional and statutory setting. There is no such thing as an absolute or unlimited statutory power. Every Commonwealth statute and every power it confers is confined by constitutional limits. It must be a law with respect to one of the subjects on which the Commonwealth Parliament may make laws under the Constitution. It cannot confer upon an administrative body the judicial power of the Commonwealth. It cannot transgress constitutional prohibitions. Nor, can it reduce the jurisdiction conferred directly on the High Court by the Constitution although it may, by the width of the powers conferred or duties imposed, affect the range of actions in respect of which that jurisdiction may be invoked. A statute conferring a power which apparently exceeds any of these limits must be read down, if that be possible, so that its operation will be confined within the boundaries of validity - s 15A of the Acts Interpretation Act. In the case of the Migration Act there is additional provision in s 3A for the severance of valid from invalid applications, if any, of an offending provision."

Every statutory power, whether subject to an express condition or not, is confined by the subject matter, scope and purpose of the legislation under which it is conferred - Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 (Dixon J), see also 496 (Latham CJ); R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49-50; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 368 (Mason J); Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40 (Mason J); O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 84 (Gaudron and Gummow JJ). A privative clause, however widely expressed, cannot affect those defining attributes of the statute in which it appears, a fortiori where there is, as in the Migration Act, an express statement of its objects. In addition to these general parameters there may be particular conditions on powers expressly imposed by the terms of the statute.

The Migration Act and the Regulations made under it are replete with powers conferred on the Minister and his officers, as well as upon the Tribunals which the Act establishes. Those powers are variously subject to different kinds of conditions which may be classified as follows:

1. A condition precedent requiring the existence of a fact before the power can be exercised.

2. A condition precedent which requires the decision-maker's reasonable belief or suspicion that a fact exists before the power can be exercised.

3. A condition precedent that requires the decision-maker's state of satisfaction as to the existence of a fact before the power can be exercised.

4. A condition which defines the content of the power by reference to its subject matter.

5. A condition which prescribes procedures incidental to or governing the manner of exercise of the power."

Later, his Honour addressed the nature of a condition which turned upon the formation of ministerial satisfaction stating:

An example of the third kind of condition is the Minister's state of satisfaction that the various criteria for the grant of a visa have been satisfied (s 65). So too is the requirement for ministerial satisfaction of certain matters before a visa can be cancelled (s 116). Indeed the formation of the relevant opinion or state of satisfaction will be a jurisdictional fact (discussed below) so that the power is not validly exercised if it does not exist - Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 ("Eshetu") at 653-657 (Gummow J):

"A determination that the decision-maker is not `satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution." (651)

Where a condition on a statutory power requires formation of an opinion or a state of satisfaction as to a matter it is necessary that the opinion or state of satisfaction be based upon a correct interpretation of the relevant statute. In R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, Latham CJ said at 430:

"Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power."

And at p 432:

"If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of the power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide."

See also Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, at 118-119 for a similar statement by Gibbs J and Foley v Padley [1984] HCA 50; (1984) 154 CLR 349, for approval of Latham CJ's opinion by Gibbs CJ at 353 and Brennan J at 370. These and related authorities were cited by Gummow J in Eshetu at 652. Where an official or ministerial opinion or state of satisfaction as to a fact is not expressly required to be reasonably based in fact the Court would not ordinarily review it on the ground of the non-existence of the fact that is its subject. But where it can be shown that the opinion or state of satisfaction rests upon error of law such as misconstruction of the statute then it is not the opinion or state of satisfaction required for the exercise of the power. In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, at 208-209 Gleeson CJ, Gaudron and Hayne JJ also referred with approval to what Latham CJ said in Hetton Bellbird Collieries when they observed that the Full Bench of the Commission would have committed jurisdictional error if, inter alia, it "misunderstood the nature of the opinion it was to form". See also Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421, at 438-439 per Gleeson CJ and Gummow J and Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 182 ALR 657, at 676 (Gaudron J), 698 (Gummow and Hayne JJ) and 742 (Kirby J).

Those principles were applied in AZAFX v Federal Circuit Court of Australia [2016] FCA 1139; (2016) 244 FCR 401, [77]-[78] (Charlesworth J)."

More recently, the High Court has confirmed it to be well-settled that the “satisfaction of the Minister or delegate required to meet that precondition is a state of mind formed reasonably and on a correct understanding and application of the applicable law”: Shrestha v Minister for Immigration and Border Protection [2018] HCA 35, [2] (Kiefel CJ, Gageler and Keane JJ) (citing Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at 35 [33]), [33] (Nettle and Edelman JJ); see also Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69.

These principles are applicable whether one is concerned with the question of ministerial “satisfaction” for the purposes of ss 116, 133C(3) or cognate provisions of the Migration Act 1958.

For obvious and good reason, satisfaction of health criteria may be made essential to the grant or refusal, respectively, of a visa: see, e.g., Migration Act 1958, 65(1)(a)(i). For the purposes of statutory interpretation, words in the singular include the plural. Further, where in any Act a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings: Acts Interpretation Act 1901 (Cth), ss 18A, 23. In the Migration Act 1958, the expression “health criterion” is given a particular meaning and for the purposes of statutory interpretation of that Act, the expression “health criterion” bears the meaning which provided by s 5. Although it has not been the subject of argument, it is unclear whether the combined effect of the requirement for ministerial satisfaction as expressed in par 65(1)(a)(i), coupled with the definitions of “health criterion” and “prescribed” in s 5, confine the issue of ‘health criteria’ as including only those criteria prescribed by regulation.

By 116(1) of the Migration Act 1958, no less than nine alternative generic grounds are provided the satisfaction of which engages a discretionary statutory power in the Minister to cancel a visa. However, in each case, the discretionary power to do so is not enlivened unless the Minister is satisfied of the existence of such a ground.

Upon the basis of the decision announced at about 5:45 p.m. on Friday, 14 January 2022, for the purposes of engaging s 133C(3), the head of power relied upon under s 116 was the ground specified in par (1)(e) of that provision, being the health of the Australian community. Further, as I understood it, the respondent also considered it to be in the public interest to cancel his visa, by reason of a perceived need to quell the risk, as it seemed to be said, of so-called ‘anti-vaxers’, deploying the applicant’s presence in Australia as some sort of vehicle upon which to rally in support of their cause. Without the benefit of argument it was more difficult to locate the source of this discrete head of power in s 116.

It is not necessary to examine in detail the nature of ministerial satisfaction or to finally determine the relative merits of the parties’ competing contentions whether a ground exists under s 116 of the Migration Act 1958 for the respondent to cancel the applicant’s visa, or whether the criterion for ministerial satisfaction whether it would be in the public interest for the respondent to cancel the applicant’s visa pursuant to s 133C(3). That is because in my view, it is sufficient to record my conclusion I am satisfied that the applicant has demonstrated there is a reasonably arguable case; that is, there is a serious question to be tried whether a ground for cancellation existed under s 116 to do so. Stated in other terms, if no such ground existed, the primary and essential criterion for engagement of the personal power to cancel a visa as expressed in par 133C(3)(a) might not exist. In that event, the discretionary power conferred by s 133C to cancel the visa would not be enlivened. That is because ministerial satisfaction respecting the matters in each limb of s 133C(3)(a) and (b) is essential to the existence of the Minister’s statutory discretionary personal power to consider cancellation. Further, if facts and circumstances capable of supporting the precondition to par 133C(3)(a) were not demonstrated, no occasion would arise to address whether the secondary, and equally, essential, criterion expressed in par 133C(3)(b) was satisfied. In each case, the nature of the satisfaction of the Minister that is necessary and sufficient to engage the power in s 133C(3) “is a state of mind formed reasonably and on a correct understanding and application of the applicable law.”

Ground 3

It cannot be overlooked that the rights which inhere in a visa are of real and substantial value. The destruction of such rights, as by cancellation, are to be considered from that perspective. Upon the foregoing principles, it is appropriate to grant relief in this case. It is then necessary to address the relief that is appropriate to be granted in the case.

It is also desirable that the proceeding be transferred to the Federal Court of Australia. It is necessary to explain, however briefly, why this conclusion has been reached. As stated above, limited jurisdiction is conferred on this court to grant relief by way of judicial review where an administrative decision made under the Migration Act 1958 is shown to be tainted by jurisdictional error. It will not do so unless the error is shown to be material in the requisite sense.

By s 137(1) of the Federal Circuit and Family Court of Australia Act 2021, jurisdiction of Div. 2 of this court is to be exercised by the court constituted by a single Judge. When called upon to exercise jurisdiction, the Judge may give directions under s 192(1). Included in the directions that the court is empowered to give in a civil proceeding is a direction requiring things to be done: see par 192(2)(a). Relatedly, s 153(1) confers a discretionary and qualified power in the court to transfer a proceeding to the Federal Court of Australia.

While the court may transfer the proceeding of its own initiative, a non-exhaustive list of matters that the court must have regard to are detailed s 153(3). An order for transfer is qualified by s 153(3) inasmuch as the order is not operative and does not take effect until it has been confirmed pursuant to s 32AD(1) of the Federal Court of Australia Act 1976 (Cth). Section 32AD addresses matters relevant to the exercise of discretion to confirm a transfer.

An ancillary order was required directing that the parties forthwith do all things and take all steps were reasonably necessary to make application seeking confirmation of the transfer of the proceeding pursuant to s 32AD(1) of the Federal Court of Australia Act 1976. Should the Federal Court of Australia determine not to confirm the transfer of the proceeding, it will be remitted immediately to this court for hearing and determination.

I have concluded that it is in the interests of the administration of justice to make an order for the transfer of the proceeding. The objects and requirements stated in ss 5(a), 139(d) and 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), are: to ensure that justice is delivered by federal courts effectively and efficiently; to ensure all matters in controversy between the parties may be completely and finally determined (and, in particular, that all multiplicity of proceedings concerning such matters may be avoided). Overarching purposes of civil practice and procedure provisions of that Act are to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible including by the efficient use of the judicial and administrative resources available in a timely manner.

In my view it is consistent with the furtherance of those objects, including to minimise the application of further resources and incurring of significant costs to each of the parties (including appeals), for the matter to be transferred without delay.

Notwithstanding the jurisdiction conferred by s 476 the Migration Act 1958 upon this court to hear and determine proceedings by way of judicial review, an additional power conferred by s 26(1) of the Federal Court of Australia Act 1976 (Cth), allows for the referral to a Full Court of questions that may be reserved for its consideration.

It does not appear, and having regard to the divisional nature of this court, I would not expect to locate, any correlative provision in the Federal Circuit and Family Court of Australia Act 2021. To say as much is only to underline the importance of achieving the object that justice is delivered by federal courts effectively and efficiently and this should occur in a manner that secures the just resolution of the parties’ disputes according to law, as quickly, inexpensively and efficiently as possible and in a timely manner.

Further, the court was satisfied it was in the interests of the administration of justice that, pending the order for the transfer of the proceeding being confirmed, and necessary, within the meaning of s 153(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), for these orders to be made.

Conclusion:-

1) The applicant have leave, now for then, to make oral application for judicial review of the decision of the respondent made purportedly pursuant to s 133C(3) of the Migration Act 1958 (Cth) to cancel his Temporary Activity (Subclass 408) visa.

2) Pursuant to s 153(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the proceeding be transferred to the Federal Court of Australia.

3) The parties and each of them forthwith do all things and take all steps as may be reasonably necessary to make application seeking confirmation of the transfer of the proceeding to the Federal Court of Australia pursuant to s 32AD(1) of the Federal Court of Australia Act 1976 (Cth).

4) The costs of and incidental to this application be reserved.