Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A

• Jurisdiction: Australia Federal only
• Judge: BESANKO J
• Judgment Date: 08 May 2020
• Neutral Citation: [2020] FCA 615
• Date: 08 May 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615

Appeal from:	BFW20 by his Litigation Representative BFW20A v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562
File number:	SAD 70 of 2020
Judge:	BESANKO J
Date of judgment:	8 May 2020
Catchwords:	PRACTICE AND PROCEDURE — application for a stay pending the determination of an appeal to the Full Court of the Federal Court of Australia — whether the grounds of appeal are arguable — whether the subject matter of the appeal will be destroyed if a stay is not granted — whether the respondent will be deprived of the fruits of his success at first instance if a stay is granted — whether the appellants have engaged in disentitling conduct — whether the appeal should be expedited — where the appellants have proffered an undertaking as to damages — where the respondent is in immigration detention
Legislation:	Migration Act 1958 (Cth) ss 36, 65, 501 Migration Regulations 1994 (Cth) cl 790.227 of Sch 2
Cases cited:	BAL19 v Minister for Home Affairs [2019] FCA 2189 Mitolo Wines Aust Pty Ltd v Vito Mitolo & Son Pty Ltd (No 3) [2019] FCA 2116
Date of hearing:	4 May 2020
Registry:	South Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	24
Counsel for the Appellants:	Mr P Herzfeld with Mr D Reynolds
Solicitor for the Appellants:	Australian Government Solicitor
Counsel for the Respondent:	Mr S McDonald
Solicitor for the Respondent:	Camatta Lempens Pty Ltd

ORDERS

		SAD 70 of 2020
BETWEEN:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Appellant ; THE COMMONWEALTH OF AUSTRALIA Second Appellant
AND:	BFW20 BY HIS LITIGATION REPRESENTATIVE BFW20A Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	8 May 2020

THE COURT NOTES that the appellants give an undertaking to pay any damages occasioned by the stay in the event that the appellants’ appeal is unsuccessful

THE COURT ORDERS THAT:

1. Paragraphs 2 and 3 of the orders made by Colvin J in SAD 53 of 2020 on 30 April 2020 be stayed until the determination of the appeal or until further order of the Court.

2. The hearing of the appeal be expedited.

3. The costs of the application for the stay be costs in the appeal.

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

REASONS FOR JUDGMENT

BESANKO J:

1. This is an application by the appellants in an appeal for a stay of orders made by a judge of this Court on 30 April 2020 until the determination of the appeal from those orders. I heard argument on the application on Monday, 4 May 2020 and at that time I made an order for an interim stay so that I could consider the submissions which have been put to me. For the reasons which follow, I will make an order for a stay until the determination of the appeal or until further order of the Court. I will note the undertaking as to damages proffered by the appellants. I will also order that the hearing of the appeal be expedited, although precisely what that means in terms of a hearing date will depend upon the ability of the parties to be ready for hearing and the availability of the Court to hear the matter. The costs of the application for the stay should be costs in the appeal.

2. The appellants are the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) and the Commonwealth of Australia, and the respondent is BFW20 by his litigation representative BFW20A.

3. At the risk of some oversimplification, the broad nature of the issue raised by the appeal may be illustrated by the following example. Section 501 of the Migration Act 1958 (Cth) (the Act) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. A non-citizen who makes an application for a protection visa must satisfy, inter alia, the criteria in s 36 of the Act. Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa. If the Minister is not so satisfied, he or she is to refuse to grant the visa. The Minister decides in the course of considering an application for a protection visa that he or she wishes to consider whether the visa should be refused under s 501(1) of the Act. Is the Minister entitled to refuse to grant the protection visa under s 501(1) of the Act?

4. In a decision of a single judge of this Court (BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19)), it was decided that the Minister could not do this and said (at [90]):

… the application for a protection visa must be assessed in accordance only with the mandatory criterion s 36 and cl 785.227 and the Minister cannot refuse the grant of a visa under s 501(1) or any other provision in Pt 9 of the Act.

5. The Minister has lodged an appeal in BAL19. That appeal does not presently have a listing. There is another appeal before the Court in which the correctness of the single judge’s decision in BAL19 is raised and that appeal is listed for hearing on 21 May 2020 (KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, WAD 397 of 2019, (KDSP)). As I understand it, in the matter of KDSP, the appellant has been given leave to raise the BAL19 decision as a new ground of appeal. The appellant in KDSP claims that the delegate lacked jurisdiction to refuse his protection visa application under s 501(1); the Tribunal therefore lacked jurisdiction to set aside that decision under s 501(1); and accordingly, the Minister lacked jurisdiction to set aside the Tribunal’s decision and refuse the visa under s 501A.

6. There is, in addition, a further issue in the appeal in the present matter which may more properly be described as a sub-issue. This issue is whether the primary judge should have refused the relief sought by the respondent on the basis that the Minister was entitled not to proceed further with the respondent’s application for a safe haven enterprise visa (SHEV) until his challenge to the correctness of BAL19, either in that case or in KDSP, had been determined.

7. The two issues are raised by the appellants in their Notice of appeal. The grounds of appeal are as follows:

1. The primary judge erred in holding that, since the decision in BAL19 v Minister for Home Affairs [2019] FCA 2189, the Appellants (the Respondents below) have not been legally permitted to rely on a possible future exercise of power under s 501 of the Migration Act 1958 (Cth) in defence of ground 1 of the amended application.

2. The primary judge erred in following BAL19 to hold that the power to refuse a visa under s 501(1) of the Act is unavailable in respect of a protection visa.

8. The primary judge described the relief originally sought by the respondent as a writ of mandamus requiring the Minister or his delegate to determine, forthwith and according to law, the respondent’s application for a SHEV made on 23 December 2015 on the basis that s 501 of the Act does not prevent the grant of the visa within the meaning of s 65 of the Act. The respondent also sought in his application, in the alternative, a writ of mandamus requiring the Minister or his delegate to determine, forthwith and according to law, the respondent’s application for a SHEV made on 23 December 2015. Finally, in terms of substantive relief, the respondent sought a declaration that his current and continuing detention is not authorised...