by Paul Cutler | Apr 30, 2025 | Uncategorized
Consent orders are often made in civil commercial litigation if the parties reach an agreement to settle. Generally the Courts will accomodate the wishes of the parties and make orders to reflect the settlement. Usually there are no issues about those types of orders being within the jurisdiction of the court.
The position in administrative law (i.e. migration) litigation is a little bit different. On judicial review applications the issue for the court is whether or not there has been a jurisdictional error either in the ART or on the lower Court. This does not mean that migration matters never settle. It does happen that the Minister concedes and the parties agree that there has been a jurisdictional error made.
High Court
The High Court was recently faced with an application to amend an application to include a new ground of appeal (see Plaintiff M19A/2024 v Minister for Immigration and Multicultural Affairs [2025] HCA 17). The ground was that the decision of the delegate of the Minister under s 116(1AA) of the Migration Act 1958 (Cth) is vitiated by jurisdictional error by reason of the delegate having given weight to the fact that the first appellant did not respond to a “Notice of Intention to Consider Cancellation” of that visa in circumstances where there was no legal obligation on the first appellant to respond to such a notice. In written submissions filed in support of the appeal, the appellants sought leave to raise this new issue on the basis that it could not have been the subject of any additional evidence at first instance and did not involve any “fresh consideration of facts that are neither admitted nor beyond controversy” (Bird v DP (a pseudonym) (2024) 98 ALJR 1349).
In response to the application for leave to raise the new issue, the Minister consented to the making of orders allowing the appeal, setting aside the judgment and substituting orders which include the issue of a writ of certiorari and a declaration. The basis of the Minister’s concession is consistent with the Minister’s concession in an earlier proceeding before a single judge of this Court, where a writ of certiorari was issued: see Lazenby v Minister for Home Affairs (S51/2022) but that no reasons for that earlier decision were published and “only the Minister and not the [a]ppellants were aware of that conceded issue of principle at first instance”.
In these circumstances, and where the issue was not raised by the appellants below because they were not and could not reasonably have been aware of the relevant authority, it is necessary in the interests of justice that the appeal be determined on the basis of the concession as to jurisdictional error by the delegate now properly made by the Minister.
The Court noted that its power to make orders in the exercise of its appellate jurisdiction is to “affirm reverse or modify the judgment appealed from” and to “give such judgment as ought to have been given in the first instance”.The proper exercise of that power in an appeal from a judgment given in the original jurisdiction of the Court under s 75(v) of the Constitution necessitates that the Court on appeal be satisfied that such orders as it makes are appropriate. That is so even if those orders are sought and made by consent.
That constraint on the making of orders by consent in an appeal from a judgment given in the original jurisdiction of the Court under s 75(v) of the Constitution arises because the original jurisdiction exists to ensure that “officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them” and because the law declared and enforced in the exercise of the original jurisdiction is incapable of alteration by agreement.
The Minister’s concession is correct. The decision of the delegate being affected by jurisdictional error, it follows that the consent orders founded on the Minister’s concession are appropriate to be made.
Public interest and older authorities
There is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. It is necessary for this to occur because it is not a matter for the parties to determine by agreement whether the extent of executive authority has been exceeded. Constitutional integrity requires that the limits upon the extent of judicial power to confine or constrain the exercise of executive power are carefully observed.
The Court must itself be satisfied of the alleged jurisdictional error and the appropriateness of exercising its jurisdiction to grant the relief sought: Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323 at [11]-[12] per French J, approved in Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; 174 FCR 574 at [13]-[15] per Downes, Greenwood and Tracey JJ. This is so even if the proper contradictor to an application for judicial review consents to that relief: VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921; 181 ALD 49 at [3] per Colvin J
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by Paul Cutler | Dec 9, 2024 | Uncategorized
Cancellation of visas on security grounds can raise many complicated issues about review rights and procedural fairness. This can be particularly difficult if the cancellation occurs offshore.
The case of Almassri v Minister [2024] FCA 1352 illustrates some of these points. Mrs Almassri is a 69 year old woman from Gaza who has 6 Australian citizen children living in Australia. In November 2023 she was granted a visitor visa. For whatever reason, she hadn’t entered Australia by April 2024. Unfortunately by that time ASIO had conducted a security assessment of her and decided that she was a risk to security.
Judicial Review Proceedings
She started judicial review proceedings in the FCFCOA (“the Circuit Court”) and applied for an order to transfer the proceedings to the Federal Court. This was because the Circuit Court had jurisdiction in relation to the cancellation but not in respect of the ASIO assessment. The Federal Court on the other hand could review the ASIO assessment but had no jurisdiction in respect of the cancellation decision unless it was transferred to it by the Circuit Court. The matter was transferred.
Initially the proceedings sought to review the ASIO assessment and the Director General of Security was joined as a party. This part of the case was ultimately dropped.
Competing cancellation powers
The case amongst other things, highlights the differences between a cancellation under s116 as opposed to s128 Migration Act. Those two separate cancellation powers are not limited or affected by each other (s 118).
Section 116 (which can apply in or out of Australia) requires the visa holder to be given notice of the proposed cancellation and the opportunity to make submissions before the decision is made.
Section 128 (which applies outside of Australia) provides that the cancellation is made without notice to the visa holder but then provides a procedure where a revocation of the decision can be sought. The exception to that statement is that a revocation can’t occur if there are prescribed circumstances (s131(2)). Unfortunately, an adverse ASIO assessment is a prescribed circumstance because of the operation of regulations 2.48 and 2.43(2). In other words, there is no mechanism to revoke the decision.
How serious was the security issue?
The two remaining grounds of review were that the delegate didn’t take into account the nature and severity of the security risk and/or acted unreasonably. These grounds were dealt with in the following way:
61 While I accept that the nature and severity of the security risk may be regarded as an obvious matter for inquiry, I consider that it was within the legally permissible approach to the exercise of the discretion in s 128 for the delegate to choose to give such weight as he thought appropriate to the very fact that ASIO had made the adverse security assessment, without attempting to weigh the nature and severity of the risk.
62 For these reasons, I do not accept that Ms Almassri’s first ground of judicial review is established. For the avoidance of doubt, if I am wrong in my conclusion that the delegate was not legally required to have regard to the nature and severity of the particular risk posed by Ms Almassri, I would accept that the delegate did not take that matter into account.
And
75 …. the approach of the delegate has an intelligible justification and I do not think it can be characterised as illogical or legally unreasonable. Given the role and expertise of ASIO and the function served by security assessments, as well as the fact that the security assessment itself included a recommendation that the visa be cancelled, it was not irrational or unreasonable for the delegate to give the fact of the security assessment itself significant weight in favour of the cancellation of the visa.
The net result is effectively that the security assessment speaks for itself an that there is no way to revoke the decision. Administrative law decisions can be lawful but still unfair (at least in a “lay sense”).
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by Paul Cutler | Oct 10, 2024 | Uncategorized
Which Ministerial Direction applies when a new one comes into operation after a review application is lodged and before a decision is made? The general rule is that the Tribunal should apply the law as it exists at the time making it’s decision.
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119, the Applicant’s partner visa was refused on s501 character grounds. At the time he lodged his application Ministerial Direction 65 was in force. By the time of the hearing Ministerial Direction 90 had come into effect. The Tribunal proceeded to apply the new Ministerial Direction. By the time the matter was heard by the Full Court two further Ministerial Directions had been made (numbers 99 and 110).
Timing matters like this can often cause difficult issues.
Right, privilege or obligation?
Although there were several arguments, the main one was based on section 7(2)(c ) of the Acts Interpretation Act. That section says if there is a repeal or amendment of any legislation then it does not: “affect any right, privilege, obligation or liability acquires, accrued or incurred under the affected Act or part”.
In short, Mr Kahlil said that he had an accrued right to have his review conducted on the basis of Ministerial Direction 65 and not 90. One of the obstacles to success was a previous Full Court decision of Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48. Jagroop had also considered the “accrued right” argument although it was in the context of a cancellation not a refusal.
Jagroop
In Jagroop the Full Court found:
- The first was that the source of the right of an applicant to an exercise of the discretion by the Tribunal was not Direction 55 itself but ss 25 and 43 of the Administrative Appeals Tribunal Act 1977 (Cth) (AAT Act), read with s 500 of the Migration Act.
- the Tribunal’s obligation to comply with a Ministerial Direction was said to be contrary to the terms of s 499(2A), which requires a person or body to whom the direction is given to comply with the direction in operation at the time the decision is made.
- Ultimately, in the application of both Directions, each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
The judgment in Kahlil is quite detailed. There were clearly many arguments raised. Mr Kahlil failed in his attempt to convince the Full Court to distinguish Jagroop. Once that failed the argument was then about whether Jagroop should be overturned. For that to occur, the Court had to be satisfied that the decision was “plainly wrong”.
Not plainly wrong
Unfortunately, for Mr Kahlil he failed on this argument as well for two reasons. Firstly, there were a number of practical considerations which weighed against overturning Jagroop. Secondly there is a quite a detailled discussion of the bases on which Jagroop was wrong. The conclusion was that: There are sound reasons in favour of the conclusion reached by the Full Court in Jagroop. Although it may be accepted that there are reasonable arguments that can be mounted in favour of the contrary conclusion, for the reasons given above, I am not convinced that the decision in Jagroop is plainly wrong (in the sense discussed at [62] above). This is an instance where, if there is to be any departure from the conclusion reached in that earlier decision, it is not appropriate that that step be taken by this Court. This Court should decline to overrule Jagroop. [129]
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by Paul Cutler | Aug 29, 2024 | Uncategorized
It goes without saying that making a valid application is a very important first step in the review process at the AAT. Filing the application on time and paying the application fee are fundamental. However, there are other requirements. Section 29 of the AAT Act sets out the manner of applying for review. Section 29(1) makes it clear than an application: (b) must be accompanied by any prescribed fee; and (c ) …. must contain a statement of the reasons for the application
I have previously blogged about invalid applications where the prescribed fees haven’t been paid.
No statement of reasons
In Mr Miller’s case (a 501 cancellation case) the problems all started when his migration agent used the wrong form and didn’t provide a statement of reasons. The AAT proceeded as on the basis that it had jurisdiction despite the error. However, it affirmed the decision to cancel Mr Miller’s visa. Mr Miller sought judicial review in the Federal Court. Derrington J accepted the Minister’s submission that the AAT did not have jurisdiction (because there was no statement of reasons) and quashed the decision. Mr Miller’s appeal was dismissed by the Full Court.
The High Court decision
Things didn’t go well for the Minister in the High Court (see Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024]) HCA 13). The High Court found that to invalidate the application because no reasons were provided would be to (at [38]) “attribute to the legislature an intention wholly at odds with the express legislative imposition on the Tribunal of the obligation in s 2A(a) and (b) of the AAT Act to pursue the objective of providing a mechanism for review that is accessible, fair, just, economical, informal, and quick. Antithetically to each of those legislative aspirations, invalidity of an application for non-compliance with s 29(1)(c) would result in a mechanism for review which would shut out persons adversely affected by reviewable decisions who might have substantial reasons for seeking review of those decisions but who, through mistake or misfortune or lack of education or linguistic skills, failed to express those reasons in their written application”.
The new ART
For applications in the new ART, the amended s347(2) Migration Act says that the application must: (a) include prescribed information (if any) and be accompanied by the prescribed documents (if any) and prescribed fee (if any)(see (b) and (c )). Meanwhile s34 ART Act says that the application has to be in writing (34(1)), include information specified in practice directions (34(2)). Section 34(3) says that a failure to comply with 34(2) won’t affect the validity of the application.
Clearly there is a lot of administrative law ahead of us when the new ART commences operation.
Photo by Thomas Lefebvre on Unsplash
by Paul Cutler | Jul 31, 2024 | Uncategorized
The Migration Act character test is well known and notorious. It is the subject of a large number of cases in both the AAT and in the Federal Court. It has been the subject of this blog on many occasions…. but not this month.
Many permanent residents (who survive the character test) will one day want to apply for Australian citizenship by conferral. They must meet the residence requirement of having lived in Australia on a valid visa for 4 years and with one of those years being on a permanent visa. There is also a citizenship character test.
Definition of the citizenship character test
The citizenship character test is contained in section 21(2)(h) of the Australian Citizenship Act. The applicant has to be “of good character” at the time that the application is decided. For the vast majority of people this won’t present a problem. However, there can be issues when there is conduct which is below the threshold for s501 or which occurred a long time ago.
Good character for the purpose of citizenship is not defined. However, there is a common law meaning. The Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432 contains the following: Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion… .
Citizenship policy
The Australian Citizenship Policy Statement (Policy) and the Citizenship Procedural Instruction 15 (CPI 15) says the phrase ’enduring moral qualities’ encompasses (a) characteristics which have endured over a long period of time; (b) distinguishing right from wrong; and (c) behaving in an ethical manner, conforming to the rules and values of Australian society. Relevantly, CPI 15 provides that a person who is of good character would generally be expected to exhibit certain characteristics. These include to abide by the law in Australia, not practice deception or fraud in dealings with the Australian Government, or other organisations and to not cause harm to others through their conduct.
A more recent summary of the requirements is set out in BOY19 [2019] FCA 574:
The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. ….. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.
Citizenship – a privilege
Finally, I note the words of Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]: The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
Creative commons acknowledgment for the photograph.
Consent orders are often made in civil commercial litigation if the parties reach an agreement to settle. Generally the Courts will accomodate the wishes of the parties and make orders to reflect the settlement. Usually there are no issues about those types of orders being within the jurisdiction of the court.
