by Paul Cutler | Oct 16, 2023 | Uncategorized
Is there a section 48A bar arising from the following facts:
- The Applicant applied for a protection visa in 2013;
- The application was refused in 2014;
- In September 2017, the AAT affirmed the delegate’s decision;
- On 12 September 2017 (the day following the AAT decision) the Assistance Minister used the power in s417(1) to grant a three month visitor visa with a no further stay condition on it; and
- On 12 October 2017 the Applicant applied for a second protection visa.
That second application was found to be invalid on the basis that there was a section 48A bar which had not been waived. An application for judicial review was made in the Federal Circuit and Family Court of Australia where Judge Laing found that there was a s48A bar. The matter then went to the Full Federal Court (see Fel17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 153).
It was a 2:1 majority decision in the Full Court:
- In seven succinct paragraphs Justice Snaden found that: “There is nothing about the subject matter, scope or purpose of the Act that should require or suggest that the exercise of power under s 417(1) operates so as to revive the by-then-extinguished legal effect of the decision whose affirmation the Minister has seen fit to replace with something more favourable.”; and
- Unfortunately, Justices Halley and Abraham found that: “In short, s 48A of the Migration Act prohibits the making of a further protection visa application where one has already been made and refused. That is subject only to s 48B, where the Minister can personally exercise his power to consider another application if it is considered in the public interest to do so. That power was not exercised. The Assistant Minister substituting the Tribunal’s Decision and granting a different visa, a three month visitor visa, pursuant to s 417(1) of the Migration Act, does not mean that the appellant has no longer been refused a protection visa for the purposes of s 48A.”
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by Paul Cutler | Sep 27, 2023 | Uncategorized
Even those of us who didn’t do very well at constitutional law know that having a matter is a pre-requisite for federal jurisdiction. In AZC20 v Minister [2023] HCA 26 the High Court found that there had been no matter before the Full Federal Court.
The facts
The facts of AZC20 (which are a bit complicated and involve several sets of proceedings and appeals) were that:
- AZC20 is an Iranian gentleman who arrived in Australia by boat in 2013;
- His protection visa application was unsuccessful and he has been held in immigration detention ever since his arrival;
- He commenced proceedings in the FCA seeking orders that the Minister remove him as soon as practicable to an offshore processing facility (s198AD);
- He was successful in obtaining that order, together with an order that as an interim step he be moved to home detention (in the home of one of his supporters)
- On the day that the home detention was to take effect, two things happened. Firstly, Nauru advised it would not take AZC20 and secondly the Minister used the power under 198AE (to waive the requirement for removal under 198AD).
That resulted in the Commonwealth making an application in the FCA to vacate the orders, while AZC20 sought to vary them to ensure compliance with the home detention orders. Those applications were both refused. The Commonwealth appealed. AZC20 then started the “s198 mandamus proceeding” which was eventually moved into the FCA where it was adjourned pending the appeal. During the hearing, the Full Court raised the issue about whether the utility of the appeals was of general wider importance but unrelated to AZC20. It proceeded by considering the questions before it as one of “discretion” not “jurisdiction” and allowed both of the Commonwealth appeals.
By the time the matter gets to the High Court, the issue is whether there was a “matter” before the Full Court.
What’s a matter?
A matter has two elements:
- the subject matter itself as defined by reference to the heads of jurisdiction [in ss 75 and 76], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy
- The second requirement to identify some “immediate right, duty or liability” to be established by the determination of the court “reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy”. That requirement applies in both original and appellate jurisdiction.
The decision
The High Court explained (at [35]-[36]):
[35] On appeal, therefore, the question is not whether the party can establish the claimed legal right, duty or liability, as that question has been determined. The question is not whether the party continues to have the interest necessary to obtain relief, because that question has been overtaken by the grant of relief or by the refusal of relief. The question on appeal and for determination on appeal is whether the orders of the primary judge should be affirmed, varied or reversed – that is, whether the appeal should be allowed and, if so, what orders should be made in the place of the primary judge’s orders. But the appellate court’s supervisory function over the exercise of original jurisdiction by the primary judge is not an end in itself. The second element required to form a “matter” still applies – there must be a controversy over some immediate right, duty or liability. Usually, there is a live controversy because the orders of the primary judge continue to have effect in determining the parties’ rights, duties or liabilities, unless set aside on appeal. In seeking to appeal the orders made at first instance, one or more of the parties are seeking to challenge the continuing effect of the orders on the determination of their respective rights, duties or liabilities. As will be explained, that critical feature – any controversy over the continuing effect of the orders on the parties’ rights, duties or liabilities – was absent in the appeals before the Full Federal Court.
[36] The appellant submitted before this Court that there was no “matter” before the Full Federal Court because the orders that the Commonwealth parties sought to appeal had no operative legal effect by the time the Full Court determined the appeals. At the time the appeals were filed, Nauru had informed Australia it would not accept the appellant and the Minister had voluntarily engaged s 198AE such that s 198AD did not apply to the appellant. Since the home detention order was dependent on the s 198AD mandamus order, the events rendering the s 198AD mandamus order inoperative similarly made the home detention order inoperative. Even if there was a “matter” when the appeals were filed, there ceased to be a “matter” from the moment during the hearing when the Commonwealth parties undertook not to seek the costs of the trial or the appeals.
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by Paul Cutler | Sep 15, 2023 | Uncategorized
Giving weight to the serious of offending is important in character cancellation matters but double counting is easy to do and not permissible.
Mr Jama was a NZ citizen who arrived in Australia as a 17 year old in 2008. His visa was cancelled in 2019 after a conviction for aggravated armed robbery. Needless to say his 444 visa was cancelled.
Clearly the seriousness of his offending and how it was considered in the context of Direction 65 was an important factor in his challenge to the cancellation.
Mr Jama’s argument was that the Tribunal was double counting the weight it attributed to the seriousness of his offending: first by weighing it against the “strength, nature and duration of ties”; and secondly, by concluding that the factors in favour of revocation (including the “strength, nature and duration of ties”) were outweighed by the seriousness of his offending.
In Ali v Minister [2018] FCA 1895, Bromwich J found that the Tribunal could assess the strength and nature of ties to Australia holistically and to examine how the quality of those ties was affected by the offending. However, in Jama v Minister for Immigration [2023] FCAFC 148, the Full Court found that this is not how the decision maker had approached the issue. The Full Court found:
[31]….. [the decision maker] applied a discount to the weight to be given to the evident strength, nature and duration of Mr Jama’s ties by reason of the nature and seriousness of his offending. That discount was then applied again in the Tribunal’s evaluation of the weight of the primary and other considerations at Reasons
[32] With respect to the primary judge, it is difficult to accept that the Tribunal’s reasoning at Reasons [197] can be read other than as recording that the Tribunal had already found that the strength, nature and duration of ties had been found to weigh only slightly because the Tribunal had already discounted that “other circumstance”, at [175], on account of the seriousness of Mr Jama’s offending. It is readily apparent from a reading of the Reasons as a whole that the Tribunal did indeed “double count” the seriousness of Mr Jama’s offending.
In other words, Mr Jama was successful.
The Ministerial Directions on cancellations and revocations can be more nuanced than they first appear. It is certainly worthwhile reading Ali and also BOE21 which are referred to in the Jama judgment.
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by Paul Cutler | Aug 30, 2023 | Uncategorized
An application to the AAT has to be accompanied by the prescribed fee pursuant to section 347(1)(c) of the Migration Act. Despite my initial view “how hard can it be?” there have been at least two cases on this topic this year!
Fee reduction application
In the first case, Hanna v Minister [2023] FCA 604, the Applicant applied for a fee reduction at the time application was lodged. No actual fee was paid (in the prescribed period) and the Tribunal found it was without jurisdiction. On appeal the argument was that no fee was payable until the Tribunal decided if there would be a fee reduction.
Cheeseman J noted that: “In this appeal, the appellant had to navigate the twin shoals of the 2011 amendment, by which the possibility of outright waiver of the prescribed fee had been removed, and his failure to pay at least 50% of the prescribed fee within the prescribed period.”
Her Honour did not accept the Appellant’s arguments, but left open the question about what would have happened if 50% of the fee had in fact been paid. I wouldn’t advise testing it!
Payment of wrong amount
In the second case, BXS20 v Minister for Immigration [2023] FCAFC 20 the wrong amount was paid, leaving a shortfall of $58. That shortfall was eventually paid, but after the expiry of the prescribed period. Once again, the AAT treated the application as invalid (and it had no jurisdiction).
Although the Full Court considered the relevant cases on payments (by credit card) and the meaning of “accompanied” (which has some flexibility), the preferable construction of 347(1) was that both lodgement and payment had to occur in the prescribed period. In a separate (but not dissenting) judgment, Stewart J threw out a lifeline for future applicants when he observed that rectification (which wasn’t argued) acts retrospectively. So, had been rectification been raised, depending on the facts, the case may have succeeded.
Conclusion
I certainly understand that the prescribed fee is a considerable amount for some applicants, but paying the correct amount is a lot cheaper than fighting about it in the courts afterwards.
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by Paul Cutler | Aug 15, 2023 | Uncategorized
The Minister has to be satisfied that: “the grant of the visa is in the national interest” (clause 790.227 of Schedule 2 of the Migration Regulations) before granting a Safe Haven Enterprise visa
In ENT19 v Minister [2023] HCA 18 the applicant was an Iranian gentleman who had been convicted of people smuggling (section 233C Migration Act). He was sentenced to 8 years in prison. Notwithstanding that problem he was otherwise found to have met the requirements for a protection visa. It was accepted that he was not of good character. However, the basis for the visa refusal was not meeting the national interest (790.227) requirement.
The appeal was brought in the original jurisdiction of the High Court. There was a narrow 4:3 majority judgment in favour of the Applicant.
In the decision making process, the Minister expressly decided that PIC 4001 was satisfied (i.e. exercised her discretion not to refuse the visa even though the character test was not met). In addition, the Minister also disavowed any reliance on 501(1) (the Minister’s discretion to refuse the visa on character grounds).
The majority (Gordon, Edelman, Steward and Gleeson JJ) found that in those circumstances, “something extra” (apart from the obvious character issues) would have to be relied on for a finding that the visa grant wasn’t in the national interest. This is effectively saying the Minister can’t have it both ways. The following two extracts from the majority judgment make that clear:
[97] Clause 790.227 was not intended to be a trump card for the Minister or delegate to use to refuse a visa under s 65 without needing to consider, or be constrained by, any of the other criteria and powers relevant to that decision.
And
[106] Unlike s 501 of the Act, cl 790.227 is not a special visa refusal power conferred by the Act. It is a positive visa criterion in the Regulations to be satisfied for all grants of a protection visa by the Minister and delegates alike. It cannot be treated as if it were a personal dispensing power.
The appeal was successful and the refusal decision was quashed. The matter was remitted to the Minister to be determined by law.
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