FUD18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 30 July 2021
• Neutral Citation: [2021] FCAFC 132
• Date: 30 July 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

FUD18 v Minister for Home Affairs [2021] FCAFC 132

Appeal from:	FUD18 v Minister for Home Affairs [2020] FCA 48; (2020) 168 ALD 474
File number:	NSD 205 of 2020
Judgment of:	wigney, lee and wheelahan jJ
Date of judgment:	30 July 2021
Catchwords:	MIGRATION – appeal from orders of a single judge declining to make an order restraining the Minister from refusing to grant the appellant a visa on the basis of character grounds under s 501(6)(h) of the Migration Act 1958 (Cth) – Vietnamese national alleged to have deliberately acted against national regulations – Interpol red notice issued by the Vietnamese government in relation to appellant – where prohibition sought is pre-emptory in nature – consideration of the discretionary nature of constitutional writs – preferable that the administrative decision-making process run its natural course – relief sought refused in the exercise of discretion – appeal dismissed
Legislation:	Constitution s 75 Migration Act 1958 (Cth) ss 65, 189, 476A, 501, 501E, 501F, 503A Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) sch 1 Criminal Code of Vietnam art 165
Cases cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 2009) 239 CLR 27 FUD18 v Minister for Home Affairs [2020] FCA 48; (2020) 168 ALD 474 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 R v Federal Court of Australia; Ex parte Western Australia National Football League Inc (1979) 143 CLR 190 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; (2012) 301 ALR 420 R v Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2015] HCA 3; (2015) 255 CLR 231
	Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Division:	General Division
Registry:	New South Wales
National Practice Area:	N/A FCC, FCoA
Number of paragraphs:	162
Date of hearing:	13 November 2021
Counsel for the Appellant:	Mr T Brennan SC with Ms C Winnett and Ms K Lindeman
Solicitor for the Appellant:	Kinslor Price Solicitors
Counsel for the Respondent:	Mr G Johnson SC with Mr M Cleary
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 205 of 2020
BETWEEN:	FUD18 Appellant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	WIGNEY, LEE AND WHEELAHAN jj
DATE OF ORDER:	30 July 2021

THE COURT ORDERS THAT:

1. Leave be granted to the appellant to file an amended notice of appeal and the amended notice of appeal annexed to the affidavit of David Kenneth Brooks sworn 20 July 2020 may be taken to have been filed in accordance with that leave.

2. The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1. The appellant, who I will refer to as Mr H, is a long-time resident of Australia but a citizen of Vietnam. In a bureaucratic saga which has played out over the last 10 years, Mr H has been endeavouring to obtain a visa so he can permanently reside in Australia with his wife and daughters, all of whom are Australian citizens. After a lengthy period of apparent obfuscation and lamentable delay, the respondent, the Minister for Home Affairs, eventually gave Mr H notice that he intended to consider refusing Mr H’s visa application on the basis that, at least according to the Minister, Mr H failed to meet the character test in s 501(6) of the Migration Act 1958 (Cth). That was said to be because it was reasonable to infer from an Interpol notice which was in force in relation to Mr H that Mr H “would present a risk to the Australian community or a segment of that community”: s 501(6)(h) of the Act.

2. In an application that Mr H filed in this Court he sought, amongst other things, a writ of prohibition, the effect of which would have been to restrain the Minister from refusing his visa application on the basis that he did not pass the character test by reason of s 501(6)(h) of the Act. The primary judge refused to grant that relief and dismissed Mr H’s application. His Honour held, amongst other things, that Mr H had not demonstrated that it would not be open to the Minister to conclude that it was reasonable to infer from the relevant Interpol notice that Mr H would present a risk to the Australian community, or a segment of it: FUD18 v Minister for Home Affairs [2020] FCA 48 (Judgment) at [62].

3. Mr H appealed the primary judge’s dismissal of his application. The relief sought by Mr H, should his appeal be allowed, included relief which was to the same or similar effect as the relief refused by the primary judge. It included a writ of prohibition restraining the Minister from refusing his visa application on the basis of s 501(6)(h) of the Act.

4. I have had the advantage of reading, in draft, the reasons for judgment to be published by Lee and Wheelahan JJ. I agree with their Honours that Mr H’s appeal should be dismissed, primarily on the basis that the relief sought by Mr H should be refused on discretionary grounds. In short, the anticipatory or pre-emptive nature of the relief sought by Mr H was and is inappropriate in all the circumstances. Rather, Mr H’s visa application should be permitted to run its course. If the result is that Mr H’s visa application is refused, it would then be open to Mr H to challenge that decision in judicial review proceedings.

5. While I agree with Lee and Wheelahan JJ that the appeal should be dismissed on that basis, my views differ to some extent from their Honours’ views as to some of the other issues that were raised...