AFX17 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: FLICK J
• Judgment Date: 10 June 2020
• Neutral Citation: [2020] FCA 807
• Date: 10 June 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

AFX17 v Minister for Home Affairs [2020] FCA 807

File number:	NSD 550 of 2020
Judge:	FLICK J
Date of judgment:	10 June 2020
Catchwords:	MIGRATION – consideration of application for protection visa – whether delay unreasonable PRACTICE AND PROCEDURE – privative clause decision – jurisdiction PRACTICE AND PROCEDURE – mandamus – discretionary refusal of relief PRACTICE AND PROCEDURE – submission that an earlier decision is plainly wrong and should not be followed – principles to be applied
Legislation:	Migration Act 1958 (Cth) ss 5, 5E, 36, 65, 476A, 474, 501, 501A
Cases cited:	Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 65 AMQ18 v Minister for Immigration and Border Protection [2019] FCAFC 27, (2019) 268 FCR 424 BAL19 v Minister for Home Affairs [2019] FCA 2189 BFW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 Bray v Hoffman-La Roche Ltd [2003] FCAFC 153, (2003) 130 FCR 317 Fountain v Alexander (1982) 150 CLR 615 Mehmood v Attorney-General (Cth) [2013] FCA 287, (2013) 217 FCR 544 Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109 Thornton v Repatriation Commission (1981) 52 FLR 285
Date of hearing:	4 June 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	67
Counsel for the Applicant:	Ms M Yu
Solicitor for the Applicant:	Human Rights for All
Counsel for the Respondents:	Mr G Kennett SC with Mr G Johnson
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		NSD 550 of 2020
BETWEEN:	AFX17 Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	10 JUNE 2020

THE COURT DECLARES THAT:

1. The Respondents have failed to make a decision with respect to the Applicant’s application for a Safe Haven Enterprise (Class XE) visa within a reasonable time.

AND THE COURT ORDERS THAT:

1. Leave is granted to the Applicant to amend the Originating Application in the form dated 3 June 2020, subject to Particular (xiii) to Ground 1 being amended to read “… the Applicant was provisionally assessed as meeting all the criteria for the grant of a Safe Haven Enterprise visa”.

2. Leave is reserved to the parties to apply for further orders to give effect to the reasons of the Court in the present proceeding.

3. The Respondents are to pay the costs of the Applicant, either as agreed or taxed.

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

REASONS FOR JUDGMENT

FLICK J:

1. The Applicant in the present proceeding, identified by the pseudonym AFX17, is from Iran. He arrived in Australia by boat in July 2013. Although initially detained in immigration detention, he was granted a bridging visa and was released in August 2013.

2. Over three years later, namely on 1 December 2016, the Applicant’s visa was cancelled and he was again placed in immigration detention. On 19 December 2016, he applied for a protection visa. That application was rejected by a delegate of the Minister in August 2018. Review of the delegate’s decision was sought. In October 2018, the Administrative Appeals Tribunal set aside the delegate’s decision and remitted the matter to the Minister with a finding that the Applicant passed the character test under s 501 of the Migration Act 1958 (Cth) (the “Migration Act”). Written reasons for that decision were published in November 2018.

3. Between May and November 2019 inquiries were made as to the progress of the outstanding visa application. In the absence of any progress, an Originating Application was filed in this Court in December 2019, alleging unreasonable delay in the making of a decision. The Respondents to that proceeding were named as the Minister for Home Affairs and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. Thereafter, on 25 February 2020, the Minister for Home Affairs decided to set aside the October 2018 decision of the Tribunal and further decided to refuse to grant the Applicant a protection visa. The Originating Application before this Court was then amended.

4. On 26 March 2020, this Court made orders by consent. Those orders quashed the decision made on 25 February 2020, dismissed the Originating Application and ordered the Ministers to pay costs. There was a notation that the Respondents conceded there was jurisdictional error in the making of the decision.

5. On 16 April 2020, the Applicant made a further inquiry seeking an update on the progress of the protection visa application, but no response was received.

6. It was in those circumstances that a new Originating Application was filed in this Court on 19 May 2020. On 2 June 2020, the Applicant was notified of an intention to consider the refusal of his protection visa application under s 501A(2) of the Migration Act. At the outset of the hearing on 4 June 2020 the Applicant sought leave (and, subject to a minor variation, was granted leave) to amend the Originating Application.

7. In summary form, the Applicant contends that:

• any consideration by the Minister of the exercise of the discretion conferred by s 501A of the Migration Act would be contrary to BAL19 v Minister for Home Affairs [2019] FCA 2189 (“BAL19”), a decision of this Court published on 24 December 2019;

• there has been unreasonable delay in the making of a decision in respect to the application for a protection visa; and

• the Court has jurisdiction to make and should make a mandatory order requiring the Respondents “to determine according to law the Applicant’s application for a safe haven enterprise visa … on the basis that ss 501(1) and 501A(2)(a) of the Act do not empower the refusal of the application”.

No order is presently sought by the Applicant:

• requiring the Respondents to make a decision by a particular time.

Again, in very summary form, the Respondents contend that:

• the decision in BAL19 was “plainly wrong” and should not be followed;

• there has been no unreasonable delay in the consideration of the Applicant’s protection visa application; and

• the Court has no jurisdiction to review any decision in respect to the protection visa application or to direct the Respondents to consider the protection visa application.

8. Albeit not following the order in which the Amended Originating Application sets forth the Relief sought and the Grounds upon which reliance is placed, it is concluded that:

• the decision in BAL19 is not “plainly wrong” and should be followed and applied in the present proceeding;

• there has been unreasonable delay in the making of a decision under s 65 of the Migration Act in respect to the application for a protection visa;

• the Court has both jurisdiction to grant declaratory relief that ss...