CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: MORTIMER J
• Judgment Date: 12 June 2020
• Neutral Citation: [2020] FCA 825
• Date: 12 June 2020

FEDERAL COURT OF AUSTRALIA

CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825

File number:	VID 378 of 2020
Judge:	MORTIMER J
Date of judgment:	12 June 2020
Catchwords:	PRACTICE AND PROCEDURE – application for interlocutory injunction restraining removal of applicant from Australia – where applicant requested ministerial intervention in relation to visa cancellation under s 351 of the Migration Act 1958 (Cth) – where request not referred to Minister by departmental officer – whether departmental officer’s determination not to refer applicant’s request legally unreasonable – application dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth ) s 23 Migration Act 1958 (Cth) ss 91X, 195A, 198, 351, 417
Cases cited:	Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457 Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; 82 ALR 499 EHW18 v Minister for Home Affairs [2018] FCA 1350; 262 FCR 27 Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 FRM17 v Minister for Home Affairs [2019] FCAFC 148 GLD18 v Minister for Home Affairs [2020] FCAFC 2 Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; 34 FCR 169 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 Tait v The Queen [1962] HCA 57; 108 CLR 620 XAD by her Litigation Guardian XAE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1550
Date of hearing:	9 June 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	82
Counsel for the Applicant:	Mr A Krohn
Solicitor for the Respondents:	Mr D Brown of the Australian Government Solicitor

ORDERS

		VID 378 of 2020
BETWEEN:	CPK20 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; SECRETARY, DEPARTMENT OF HOME AFFAIRS Second Respondent ; KAREN, IN HER CAPACITY AS HOLDER OF POSITION NUMBER 60008218, IN THE MINISTERIAL INTERVENTION OFFICE, DEPARTMENT OF HOME AFFAIRS Third Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	12 JUNE 2020

THE COURT ORDERS THAT:

1. The applicant’s claim for interlocutory relief be dismissed.

2. The applicant pay the respondents’ costs of the interlocutory application, to be fixed by way of a lump sum.

3. In the absence of any agreement between the parties within 28 days of these orders, the question of an appropriate lump sum pursuant to paragraph 2 of these orders be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1. This application for interlocutory relief came on as a matter of urgency, on the basis that the applicant had been given notice he was liable to be removed from Australia at any time after 10 June 2020. It is proposed that the applicant will be removed to the United Kingdom. The Minister’s legal representatives confirmed to the Court the applicant would not be removed prior to the morning of 15 June 2020. The interlocutory relief sought was to restrain the Minister personally or by his delegates, officers, servants or agents from taking any step to remove the applicant from Australia until the conclusion of this proceeding or until further order. The applicant was represented by counsel on the hearing of the application, after a referral made at counsel’s request under r 4.12 of the Federal Court Rules 2011 (Cth). The Minister was also represented, and did not oppose the making of the referral.

2. The interlocutory hearing was conducted by telephone on 9 June 2020, in accordance with the Court’s COVID-19 policies. While it may be debatable whether the terms of s 91X of the Migration Act 1958 (Cth) are engaged, out of an abundance of caution an order suppressing the applicant’s identity was made, given the fact that the applicant has applied for a protection visa in the past, and his appeal concerning that protection visa was relatively recently determined.

3. The proceeding filed on 5 June 2020 seeks review of the decision of an officer of the Department of Home Affairs not to refer the applicant’s request for ministerial intervention in relation to the cancellation of his visa to the Minister. The applicant currently does not hold a valid visa which is in force, but has sought ministerial intervention pursuant to the power given to the Minister under s 351 of the Migration Act. There is a similar power in s 417 of the Migration Act.

4. 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.

2. In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

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.

5. A statement made under subsection (4) is not to include:

(a) the name of the applicant; or

(b) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.

6. A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

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.

5. The powers in both s 351 and s 417 are reposed in the Minister personally and are exercisable after adverse decisions of the Administrative Appeals Tribunal. Each power authorises the Minister to substitute a more favourable decision to that made by the Tribunal, and in substance authorises the Minister to grant a non-citizen a visa of any class, irrespective of whether the person meets the criteria for that visa, and irrespective of whether the Tribunal could have done so. As the text makes clear, the powers are available in circumstances where the Minister considers it is in public interest to exercise that power. Each of s 351 and s 417 expressly states that the Minister has no duty to consider whether to exercise the power conferred by those provisions. That feature of each of the provisions affects the...