AXG18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 865

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant, born 11 September 1982, is a citizen of Iraq who arrived in Australia by boat in May 2013 and made an application for a Safe Haven Enterprise (subclass 790) visa (SHEV application) in 2016 to the then Department of Immigration and Border Protection (now Department of Home Affairs (Department)). He was a "fast track applicant" as defined in the Migration Act 1958 (Cth) (the Act) at that time.
2. The applicant, a Shia Muslim who lived in Zubair, around Basra, claimed to have been targeted by the Iraqi Islamic Party (IIP), after his friend was found dead with a gunshot to the head. The friend was a Sunni Muslim and member of the IIP. The applicant claimed that he was targeted by the IIP as they suspected he informed on his friend to local Shia militia. The applicant also claimed that his friend's tribe was seeking retribution against him for the killing.
3. The applicant claimed to have fled to Baghdad for three months following the killing, and thereafter lived between Baghdad and Zubair until he left Iraq in 2013.
4. On 14 August 2017, a delegate of the then Minister for Immigration and Border Protection (now Minister for Immigration and Citizenship) (Minister) refused the applicant's application. By letter dated 18 August 2017, the Department then referred the refusal decision to the then Immigration Assessment Authority (IAA) (now Administrative Review Tribunal (ART)). On 5 February 2018, the IAA affirmed the decision to refuse the applicant's SHEV application (the IAA decision).
5. On 27 February 2018, the applicant commenced the present application under s 476 of the Act against the Minister and the IAA.
6. On 12 November 2024, the applicant lodged an amended application abandoning the grounds in the originating application and substituting three new grounds.
7. The first respondent now concedes that the IAA decision is affected by jurisdictional error and the parties were agreed that the IAA decision should be quashed and remitted for reconsideration by the ART.
8. Where the parties join to seek a particular outcome in proceedings from the Court, the Court does not act as a mere rubber stamp, to use the language of French J (as he then was) in Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79; [1999] FCA 18 at [1]. Rather, the Court must scrutinise what is proposed by the parties to determine whether it is both within the power of the Court, and satisfy itself that it is appropriate.
9. In those circumstances, the following two questions arise for determination:

(1) Is there a proper basis for the exercise of the Court's power in the manner that the parties have agreed; and

(2) If so, what orders should the Court make.

1. The latter question gives rise to some complication given the disestablishment of the IAA with the establishment of the ART in October 2024.
2. Those questions are addressed in turn below.

1. The Court's jurisdiction under s 476 of the Act may be exercised for the correction of jurisdictional error.
2. In the present matter, the parties are agreed that the IAA decision was affected by error, being illogicality in its reasoning. That agreement was recorded in a note attached to the minute of proposed orders provided by the parties to the Court, as follows:

The first respondent concedes that the decision of the second respondent (Authority) dated 5 February 2018 is affected by jurisdictional error. Specifically, it was illogical for the Authority to find at [9] that the applicant's evidence was inconsistent with the evidence given at the applicant's Irregular Maritime Arrival and Induction Interview dated 23 June 2013 (arrival interview) regarding whether the applicant worked in Zubair in 2012. The Authority relied on the dates that the interviewer entered into the arrival interview form regarding the dates that the applicant purportedly worked, despite the applicant not providing specific dates at the arrival interview as to the dates he worked, nor his evidence at that interview permitting any dates to be inferred with certainty. The Authority subsequently erred in rejecting the applicant's claim that he ceased employment in Zubair in August 2010 on the basis that it was not consistent with the purported evidence he gave at the arrival interview regarding the dates he worked. In the circumstances of this matter, the first respondent concedes that the Authority's error was material: LPDT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12.

1. I have had regard to the court book that was filed by the first respondent, which contains the IAA decision and other documents held by the Department, and to a transcript of the applicant's arrival and induction interview conducted on 23 June 2013 (interview transcript) which is annexed to an affidavit filed by the applicant. There is a proper basis in the present matter to be satisfied that the IAA decision was affected by jurisdictional error of the type described by the parties.
2. Where an administrative tribunal makes an erroneous finding or reaches a mistaken conclusion, and that erroneous finding or conclusion affects its exercise or purported exercise of power, it will exceed its authority or powers. Such error will be jurisdictional and will invalidate the order or decision of the tribunal: Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 at [14].
3. A conclusion that a decision is affected by jurisdictional error involving "illogicality" or "irrationality" in the making of such a finding is not premised merely upon the judge undertaking the review of the decision having an emphatic disagreement with the decision or finding. It is not a conclusion reached where, on the same evidence as that before the decision-maker (the IAA in this case), logical or rational or reasonable persons could embark on a different process of reasoning, or reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [129] - [131], per Crennan and Bell JJ. A party seeking to demonstrate illogicality or irrationality which vitiates a decision faces a high hurdle.
4. I am satisfied that the IAA decision involved jurisdictional error of the type described in the parties' note. The IAA proceeded, in [9] of its reasons, to reject the applicant's claim that he fled Zubair in August 2010 on the basis that he had previously given evidence that he had worked in Zubair until late 2012. The IAA's reference to previous evidence was a reference to the applicant's arrival interview. The applicant did not provide specific dates of his employment in that interview, and the responses he gave were not sufficiently clear to enable the IAA to conclude that he had continued to work in Zubair until 2012. There was not a proper basis to be satisfied that there was a direct inconsistency in the applicant's account. On the basis of that purported inconsistency, the IAA rejected the applicant's claim that he fled Zubair at the time, or had been threatened by members of the IIP, and concluded that both claims had been fabricated. That finding was central in the disposition of the applicant's claims, so the court may be satisfied there was a realistic possibility that if the IAA had not erred in that manner that the decision could have been different: LPDT v Minister for immigration, Citizenship, Migrant Services & Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12.

1. When the parties approached the Court with proposed consent orders reflecting the concession by the first respondent that the IAA decision involved jurisdictional error, they proposed that a writ of certiorari be issued to the IAA.
2. The IAA was established by pt 7AA of the Act (as it stood at the time of the IAA decision concerning the applicant). It was a body of reviewers, which reviewers were engaged under the Public Service Act 1999 (Cth), who were to carry out reviews of decisions to refuse to grant protection visas to fast track applicants, under the direction of the President of the Administrative Appeals Tribunal and the head of the Migration and Refugee Division of the Administrative Appeals Tribunal.
3. Part 7AA of the Act was repealed by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Transitional Act). Whatever its status or capacity, the IAA no longer operates or has any role to play in dealing with the applicant's protection visa application.
4. The question of the utility of a writ directed to the IAA was raised with the parties by email. The parties were asked whether such writ should be directed to the Administrative Review Tribunal, consistent with r 11 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth) (Transitional Rules) or alternatively whether the Court should instead exercise its power to simply make an order quashing or setting aside the IAA decision.
5. The parties initially maintained their prayer for a writ to issue to the IAA. They subsequently proposed orders providing that a writ of certiorari should issue, such writ not being directed to, or against any person or entity. The first respondent submitted, relying on Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, that it was necessary to remove the legal consequences of the purported exercise of power, but did not address why an order quashing the decision below was not a satisfactory remedy.
6. I am not persuaded that the issue of a writ of certiorari is the appropriate course in the circumstances.
7. Rule 29.12 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) concerns the issue of writs by this Court. It provides as follows:

A writ of a particular kind issued by the Court under this Part:

(a) must be substantially in the form of a writ of that kind issued under the High Court Rules 2004; and

(b) must be served and complied with in accordance with those Rules.

1. Rule 25.15 of the High Court Rules 2004 (Cth) provides:

WRIT OF CERTIORARI

KING CHARLES THE THIRD, by the Grace of God, King of Australia and his other Realms and Territories, Head of the Commonwealth:

To: [name]

[address]

THIS WRIT REQUIRES you on or before [date] to send to the High Court of Australia [city] Registry at [address] [state the record or decision to be quashed] together with this Writ for that Court to deal with as it sees fit.

Dated [e.g. 6 October 2022]

.............(signed)........

Registrar

1. Both Form 15 and the other forms of writs are directed to parties. Each of the forms of the constitutional writs is directed to a person and requires the person to attend to the command contained within the writ. In Re Ackland; Ex parte Love [1989] WASC 316, Brinsden J declined to issue a writ of certiorari against a judge of the District Court of Western Australia because he was no longer a serving judge, having retired. The same concern arises here, where a writ was sought to be directed to a body that no longer exists.
2. The grant of constitutional writs is discretionary. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, Gaudron and Gummow JJ said (at [56]):

Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:

"For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld".

1. A more convenient and satisfactory option is available in the present matter. The Court is empowered, by s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to make such orders as it considers appropriate, which include an order quashing the decision of the IAA. Section 140 provides:

Making of orders and issue of writs

The Federal Circuit and Family Court of Australia (Division 2) has power, in relation to matters in which it has jurisdiction, to:

(a) make orders of such kinds, including interlocutory orders, as the Court considers appropriate; and

(b) issue, or direct the issue of, writs of such kinds as the Court considers appropriate.

1. The Court has jurisdiction in this matter which is conferred on it pursuant to s 476(1) of the Act. That is the same original jurisdiction as that of the High Court under para 75(v) of the Australian Constitution, namely, jurisdiction where a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. A writ of mandamus was sought in the amended application in the present matter. Where it has jurisdiction, the Court is not confined to the issue of the writs referred to in para 75(v) of the Australian Constitution. Indeed, the writ of certiorari is not referred to in that paragraph. Rather, where it has jurisdiction, the Court may make such orders as it considers appropriate. As the decision of the IAA involved jurisdictional error it is appropriate to make an order quashing that decision. That was the order sought in both the originating application and the amended application.
2. A writ of mandamus may properly issue to the ART to reconsider the applicant's application for review pursuant to r 11 of the Transitional Rules. Nor is there any dispute about the question of costs. I will make orders in those respects consistent with the proposed orders submitted by the parties.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.