EFX17 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Judgment Date: 16 December 2019
• Neutral Citation: [2019] FCAFC 230
• Date: 16 December 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230

Appeal from:	EFX17 v Minister for Immigration [2018] FCCA 3179
File number(s):	QUD 871 of 2018
Judge(s):	GREENWOOD, RARES AND LOGAN JJ
Date of judgment:	16 December 2019
Catchwords:	MIGRATION – consideration of the scope of the conferral of jurisdiction upon the Federal Circuit Court of Australia by s 476 of the Migration Act 1958 (Cth) (the “Act”) – consideration of whether the contended failure on the part of the Minister’s delegate to discharge the obligations arising under s 501CA(3)(a) and (b) engages matters in relation to a decision under s 501(3A) notwithstanding no jurisdictional error challenge to the principal cancellation decision under s 501(3A) ; MIGRATION – consideration of whether the things required of the Minister (and his delegate) under s 501CA(3)(a) and (b) engage a “decision” for the purposes of s 474(2) and (3) of the Act and in particular s 474(3)(g) – consideration of whether the things required of the Minister (and his delegate) under s 501CA(3)(a) and (b) are merely steps along the way to a “decision” under s 501CA(4) – consideration of whether a “decision” for the purposes of s 501CA(3) is a decision of an “administrative character” for the purposes of s 474 of the Act ; MIGRATION – consideration of whether the reasoning in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 is necessarily inconsistent with the reasoning of the Full Court in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 ; MIGRATION – consideration of the content of the obligation arising under s 501CA(3) of the Act – consideration of whether the Minister’s delegate discharged the obligations arising under s 501CA(3) by causing documents to be handed to and signed for by an illiterate person in custody in the circumstances described in the reasons of the presiding judge – consideration of the irreducible minimum standard required by s 501CA(3)(a) and (b) – consideration of the extent to which s 497(2) of the Act operates to confer authority on a person to do those things required of the Minister by s 501CA(3) in circumstances where the person holds a delegation of the power to cancel a visa but not a delegation to do those things required of the Minister (and his delegate) under s 501CA(3) – consideration of the notion of the term “task” in s 497(2) of the Act – consideration of the Carltona principle
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3 Constitution ss 75(v), 120, 122 Corrective Services Act 2006 (Qld) s 66 Criminal Code 1899 (Qld) s 317 Crimes Act 1914 (Cth) s 19A Electronic Transactions Act 1999 (Cth) s 9 Federal Court of Australia Act 1976 (Cth), s 27 Migration Act 1958 (Cth) ss 5, 425, 474, 476, 476A, 477, 494A, 494B, 496, 497, 501, 501CA Migration Regulations 1994 (Cth) regs 2.55
Cases cited:	Aciek v Minister for Immigration and Border Protection (2017) 327 FLR 412 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 Buck v Bavone(1976) 135 CLR 110 BYN18 v Minister for Home Affairs [2019] FCA 1033 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 EFX17 v Minister for Immigration [2018] FCCA 3179 EKU17 v Minister for Immigration and Border Protection[2019] FCA 782 Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Griffith University v Tang (2005) 221 CLR 99 Johnson v Buttress(1936) 56 CLR 113 Maye v Colonial Mutual Life Assurance Society Ltd (1924) 35 CLR 14 Mazhar v Minister for Immigration and Multicultural Affairs(2000) 183 ALR 188 Metropolitan Borough and Town Clerk of Lewisham v Roberts [1949] 2 KB 608 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR(2003) 128 FCR 553 O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Golden Chemical Products Ltd [1976] Ch. 300 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 R v Anunga (1976) 11 ALR 412 Sinanovic v R(1998) 72 ALJR 1050 SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 TTY167 v Republic of Nauru (2018) 93 ALJR 111 WACB v Minister for Immigration, Citizenship and Multicultural Affairs(2004) 79 ALJR 94
Date of hearing:	8 May 2019
Date of last submissions:	8 May 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	259
Counsel for the Appellant:	Mr D Fuller
Solicitor for the Appellant:	Prisoners’ Legal Service
Counsel for the Respondent:	Ms AL Wheatley QC with Ms S Forder
Solicitor for the Respondent:	Clayton Utz

ORDERS

		QUD 871 of 2018
BETWEEN:	EFX17 Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGES:	GREENWOOD, RARES AND LOGAN JJ
DATE OF ORDER:	16 DECEMBER 2019

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the Federal Circuit Court of Australia on 7 November 2018 be set aside and in lieu thereof, it be ordered that:

   1. it be declared that the respondent has not performed his duties under s 501CA(3) of the Migration Act 1958 (Cth) (“the Act”) in relation to the decision of the respondent, by his delegate, made on 3 January 2017 to cancel the applicant’s protection visa under s 501(3A) of the Act.

   2. a writ of mandamus issue requiring the respondent to perform his duties under s 501CA(3) of the Act according to law.

   3. The respondent pay the applicant’s costs.

3. The respondent pay the appellant’s costs.

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

REASONS FOR...