BHFC v Minister for Immigration and Border Protection

2. BACKGROUND 6 The background to the appeal in BHFC (FCAFC) is set out in the reasons of Marshall and Perry JJ at [2]-[11] and can be summarised briefly for present purposes as follows. 7 The applicant is a citizen of Iran. In August 1993, a delegate of the Minister found that the applicant was a person to whom Australia owed protection obligations. By an application dated 30 May 1994, the applicant applied for a Protection (Permanent) Entry Permit (817) Visa. At that time he was granted a bridging visa. As a result of amendments to the legislative scheme, his application was converted on 1 September 1994 into an application for a Transitional (Permanent) (Class BF) Visa (Class BF visa). 8 No decision was made on the applicant's application for the visa until 21 August 2009, some 13 years later, when it was rejected by a delegate of the Minister. That decision was later set aside by the then Refugee Review Tribunal. Subsequently on 7 January 2013, a delegate of the Minister refused to grant the applicant a Class BF Visa in the exercise of his discretion, having found that the applicant failed the character test in s 501 of the Migration Act 1958 (Cth) (the Act) (the second delegate decision). The delegate found that the applicant did not pass the character test for the purposes of s 501 because the applicant had a "substantial criminal record" as defined in ss 501(6) and (7)(c), having been sentenced to a term of imprisonment of 12 months or more. 9 By a decision given on 25 March 2013, the Administrative Appeals Tribunal (the Tribunal) affirmed the second delegate's decision. Having found that the applicant did not pass the character test, the Tribunal had regard in the exercise of discretion to the considerations identified in "Ministerial Direction No 55 - Visa refusal and cancellation under s 501" (Direction No 55) which commenced on 1 September 2012: see s 499 of the Act. While the Tribunal considered that Australia's international non-refoulement obligations to the appellant (being a primary consideration under Direction No 55) favoured the granting of the Class BF visa, it considered that those obligations were outweighed by the need to protect the Australian community from the appellant. The appellant's criminal history in Australia spanned from January 1996 to September 2010. Before the Tribunal, he submitted that, if his 1 June 1994 application for a visa had been dealt with expeditiously in 1994, his extensive criminal conduct would not have been relevant as he would have become an Australian citizen. The Tribunal, however, found that it was bound by Direction No. 55 and Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 to consider the appellant's substantial criminal record at the time it made its decision. 10 In BHFC (FCA), Besanko J among other things accepted that the Tribunal was entitled to have regard to the applicant's criminal conduct which occurred up to the date of its decision, despite the delay by the Department in processing his application for the Class BF Visa: BHFC (FCA) at [36] to [38]. On appeal, the Full Court held that the primary judge did not err in so holding and that "[t]o hold otherwise would have meant the Tribunal would have been required to ignore a primary consideration in Direction No. 55, being the protection of the Australian public." (BHFC (FCAFC) at [14] (Marshall and Perry JJ)). 11 On the appeal, the appellant also referred to the "Ruling in the High Court of Australia on an Immigration matter in relation to Indefinite Detention" (BHFC (FCAFC) at [12] (Marshall and Perry JJ)). In this regard, Marshall and Perry JJ held that: 15 The appellant did not raise the issue of his potential indefinite detention in the proceeding below. He is currently being held in Mt Gambier Prison as a consequence of his criminal conduct. He is due to be released on 1 July 2014. He currently holds a Bridging visa which is due to expire on 30 June 2014. Upon the appellant's release, unless his Bridging visa is extended, he will be an unlawful non-citizen who is liable to be held in detention pending his removal from Australia. That is the effect of Al-Kateb. Nothing in the application before the Tribunal required it to consider the appellant's indefinite detention as an element of a valid decision (although we do not suggest that it was an error for the Tribunal to do so). The position the appellant finds himself in is a consequence of the fact of the Tribunal's decision, rather than from any issue decided by the Tribunal. The critical issue before the primary judge was whether jurisdictional error infected the Tribunal's consideration of the appellant's application for a review of the delegate's decision. The possible indefinite detention of the appellant, arising from the result of the Tribunal's deliberations, was not a matter about which Direction No. 55 required any consideration. 16 The appellant finds himself in an extremely unfortunate situation. Although not technically stateless as was the case for the appellant in Al-Kateb and the respondent in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54, he faces the same consequence of potential indefinite detention as an unlawful non-citizen, pending any "change in international circumstances" (Al-Kateb at 576 [18] per Gleeson CJ). Had he committed his crimes as an Australian citizen, he would have been released from prison after completing his sentence. It would not be inappropriate for the respondent Minister to give active consideration to the appropriateness of the grant of a Bridging visa to the appellant upon his release from prison, with the proviso that he demonstrates a bona fide commitment to his ongoing rehabilitation pending such release. 12 Similarly, Buchanan J held that: 31 Accordingly, despite having lived in this country for over 20 years and been treated in most respects as a lawful resident during that time subject to the laws of Australia, the appellant faces a situation not faced by any Australian citizen when he completes his sentence. He is liable, by reason of the criminal conduct for which he has already been punished, to indefinite deprivation of his liberty. 32 However, this Court is bound to conclude that the prospect of indefinite detention is not foreign to the operation of the Act (see Al-Kateb v Godwin (2004) 219 CLR 562). 33 Moreover, no argument is reasonably available in the present case that the AAT failed to have regard to the very serious consequences for the appellant of refusing a visa. On the contrary, the AAT expressly took into account the fact that the appellant might be exposed to indefinite detention and concluded, nevertheless, at [46], that: it does not outweigh the seriousness of the long pattern of criminal offending involved in the present matter.

3. EVIDENCE 13 In support of his application, the applicant relies upon his affidavit affirmed on 30 November 2017 which annexes: (1) a report of a medical examination of the applicant, as a visa applicant, dated 25 May 1994; (2) a "radiological report on chest x-ray of an applicant for Visa" dated 26 May 1994; (3) a freedom of information (FOI) request for access to documents held by the Department of Immigration and Border Protection (the Department) for all of the documents provided in relation to the applicant's car accident in November 1988, and the Department's decision made on 30 October 2017 allowing in full that FOI request; (4) a decision made by the Department on an International Treaties Obligations Assessment (ITOA) dated 26 August 2015 finding that non-refoulement obligations are not engaged in the applicant's case; and (5) a decision made by the Department on an ITOA dated 3 March 2016 finding that the applicant did engage Australia's non-refoulement obligations and, as a consequence, the Department will not make arrangements to remove him from Australia for so long as those obligations continue. The decision record also advised that the applicant's case would be referred to the Minister for him to consider exercising his public interest powers under the Act to grant the applicant a visa. 14 In addition, the applicant relied upon his affidavit affirmed 1 February 2018 which annexed a copy of a snapshot of an email sent to him from the Commonwealth Ombudsman's office advising that, as the matter was before the Federal Court, the Ombudsman declined to take any action in relation to his complaint. 15 The parties also relied upon the appeal book before the Full Court, together with the joint application book which included the transcript of the hearing before the Full Court and the parties' written submissions filed in the appeal.

4.1 Principles governing when a judgment not yet entered may be varied or revoked 16 The Court has jurisdiction to reopen a case where the orders on the appeal have not been entered: see FCR rule 39.04; see also e.g. Australian Fisheries Management Authority v PW Adams Pty Ltd (No 2) (1996) 66 FCR 349 (Australian Fisheries) at 354-355 (Sheppard, Tamberlin and Lehane JJ); Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 (Dib) at [80]-[84] (Gray, Lander and Katzmann JJ). As the High Court explained in De L v Director-General, New South Wales Department of Community Services (No. 2) (1997) 190 CLR 207 (De L) at 215 (Toohey, Gaudron, McHugh, Gummow and Kirby JJ): On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. 17 The Court emphasised the caution with which this power must be exercised in Dib with respect to Order 35 r 7(1) (being the predecessor to R 39.04 which was expressed in the same terms): 80 On the face of it, O 35 r 7(1) is a power which may be exercised at any time before the judgment or order which is to be varied or set aside is entered, and does not require proof of any of the matters in O 35 r 7(2) or any evidence of a clerical mistake or slip as is contemplated in O 35 r 7(3). On its face, it is in the widest possible terms. 81 However, the authorities are clear that the exercise of the jurisdiction given under O 35 r 7(1) ought only to be exercised with great caution because of the public interest in the finality of litigation: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 ("Autodesk"). 82 If a judgment is pronounced or an order is made upon the Court giving reasons, the power to vary or set aside the judgment or order which follows the reasons would only be exercised "if there is some matter calling for review": Smith v NSW Bar Association (1992) 176 CLR 256 at 265. 83 Where a judge after publishing reasons and giving judgment and making orders realises that he or she has proceeded on a misapprehension either in relation to the facts or the law, that judge may recall those reasons and make orders under O 35 r 7(1) to vary or set aside the orders made on those reasons. This is no more than an example of a court acting to prevent a miscarriage of justice and in furtherance of the administration of justice. 84 However, the jurisdiction is given to the Court only for the furtherance of the administration of justice and not to allow a party after the Court's reasons have been given and orders made to reagitate the matters upon which the Court has opined. In Autodesk Mason CJ said of the circumstances in which the jurisdiction should be exercised at 303: What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases. 18 Similarly in Venus Adult Shops Pty Ltd v Fraserside Holding Ltd (No 2) [2007] FCAFC 41; (2007) 239 ALR 724 (Venus), the Full Court explained that the discretion is to be "exercised sparingly" for the reason that: 6. … The public interest in the finality of litigation requires no less. A liberal approach would open the way to disappointed litigants to seek to reargue cases generally on the basis that the Court failed to properly consider their submissions on the law or the facts. 19 On the other hand, there may be a denial of procedural fairness warranting leave to reopen where a Court has adopted a proposition of fact or law which the unsuccessful party has not had a reasonable opportunity to argue: Venus at [6]. Other cases in which leave may be granted include "error, oversight, a misapprehension of the law, or a decision given in ignorance or forgetfulness of a statutory provision": Ashby v Slipper (No. 2) [2014] FCAFC 67; (2014) 314 ALR 84 at [14] (the Court).

4.2.1 Ground 1: the alleged denial of procedural fairness before the Full Court 20 First, the applicant submitted that the Minister's representative misled the Full Court in submitting that the applicant had not undertaken a medical examination as a preliminary step to the grant of the visa (the alleged misrepresentation). In particular, the applicant deposed in his affidavit affirmed 30 November 2017 that: 2. The fact that I received my Medical Examination Record when I Applied under FOI and the Lawyer for the DIBP had stated, the DIBP had not heard anything in relation to my Car Accident in 1988 and I never undertook the necessary Medical Examination for my PR application to had been processed. Also, the Claim made that the DIBP know nothing of my Car Accident, which clearly was False; as I had mentioned it in my Medical Examination. (errors in the original) 21 As a consequence, the applicant submitted at hearing that the Minister "shut all of [his] arguments down" because the effect of the Minister's submission was that the applicant was responsible for the delay in processing his application for the Class BF visa (being a delay understandably described by the applicant as "extraordinary"). That in turn, in his submission, undermined his argument that the delay was the Department's fault which was a factor that should have been taken into account or given more weight by the Tribunal because, if his application had been processed in a timely fashion, he would have been an Australian citizen by 1996. The applicant contended that this raised an issue of procedural fairness and therefore that his application was of a kind in respect of which leave to re-open was appropriate. 22 The medical examination in question was undertaken on 25 May 1994 as evidenced by the documents annexed to the applicant's November 2017 affidavit. I accept for the purposes of the application that the applicant obtained a copy of the 1994 report of his medical examination only following the decision on 30 October 2017 which allowed his FOI request. 23 With respect to the alleged misrepresentation, the Tribunal accepted as non-contentious the applicant's evidence that: (1) he submitted to the required medical examination after lodging his application for Class BF visa; (2) he attended the Department's Adelaide office in February 1995 to inquire about his visa application and was told that the file been transferred to Melbourne; and (3) he heard nothing further until October 2001 when he was interviewed by a departmental officer and reference was made to his criminal record. (Tribunal reasons at [18]). 24 In a footnote to paragraph 18 of its reasons, the Tribunal noted that the Minister did not challenge this evidence at the hearing despite a Minute dated 10 January 2008 recording that the medical assessments were never undertaken. 25 The Tribunal also accepted that the applicant was involved in a motor vehicle injury in the United States in which he suffered a serious head injury. However, relying on medical reports before it, the Tribunal did not accept that the reports provided evidence of any clinically diagnosable condition arising from his head injury which could explain or justify the applicant's repeated offending (Tribunal reasons at [15]). 26 As such there was no basis on which it could be said that the Tribunal was unaware that the medical examination had been undertaken in 1994 or of the applicant's serious motor vehicle accident. 27 The applicant in his reply clarified that his concern was not that the Tribunal had been misled in the way alleged, but only the Full Court by reason of submissions made by counsel for the Minister that the medical examination did not occur. In this regard, I have read the written submissions by the Minister before the Full Court and the whole of the transcript of argument before the Full Court. At no point in the oral or written submissions does the legal representative for the Minister refer to whether or not the applicant had undertaken a medical examination. The issue is simply not addressed. 28 That notwithstanding, the Minister's representative properly pointed out at the hearing that he had stated in error in his written submissions before Besanko J that, despite the delegate's decision in 1993 that the applicant was a refugee, "it appears that the Department did not issue a permit because the Applicant did not attend a medical examination which was apparently required." However, Besanko J made no such error in his reasons. In setting out the background to the application for judicial review, the primary judge set out the substance of paragraphs 15 and 18 of the Tribunal's reasons (BHFC (FCA) at [10] and [13]). This included the fact of the Applicant's medical examination. 29 It follows that, while leave to re-open may be granted where the Court has proceeded on a misapprehension of the facts or in breach of procedural fairness, no such misapprehension or breach by the Full Court (or indeed the primary judge) is revealed by Ground 1.

4.2.2 Ground 2: failure by the Tribunal to have regard to the consequences of the delay in processing the applicant's visa application 30 Secondly, the applicant sought leave to reopen to argue that the Tribunal did not take into account or give due weight to the contention that, if his application had been processed in a timely fashion: (1) his application would have been considered before he engaged in the criminal conduct which led to the refusal of his visa application; and (2) he would have been an Australian citizen by 1996 and entitled therefore as of right to remain in Australia. 31 This argument was, however, raised by the applicant before Besanko J and rejected on the ground that the Tribunal did not err in taking into account relevant events up to the date of its decision, particularly as it was considering (as required by Direction No 55) whether, in the national interest, a non-citizen should be permitted to remain in Australia: BHFC (FCA) at [37]-[38]. The applicant was unsuccessful in challenging this finding by the primary judge before the Full Court. Specifically, in BHFC (FCAFC) Marshall and Perry JJ held that: 14. The primary judge was correct in deciding that no jurisdictional error was made by the Tribunal. … his Honour was correct in affirming the Tribunal's consideration of criminal conduct which had occurred after the appellant's 1994 application for the BF visa. To hold otherwise would have meant the Tribunal would have been required to ignore a primary consideration in Direction No. 55, being the protection of the Australian public. 32 It follows that, by Ground 2, the applicant is seeking only to reargue his case. Dissatisfaction with the outcome of a decision by the Court is not a reason for allowing leave to reopen the judgment of the Full Court. As the Full Court explained in Dib at [84], the power to re-open is not to allow a party, after the Court's reasons have (as here) been given, to reopen in order to enable the party to re-litigate the matters addressed by the Court.

4.2.3 Ground 3: indefinite detention 33 Thirdly, the applicant submitted that, despite submissions by the Minister's representative before the Tribunal identifying as an option that the applicant would be retained in indefinite detention, the High Court had ruled in 2012 that indefinite detention is unconstitutional and unlawful (Tribunal's reasons at [44]). However, again this issue was raised before the Full Court. As the Full Court noted, the High Court held in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 that the detention of non-citizens pursuant to ss 189, 196 and 198 of the Act did not contravene the Commonwealth Constitution even if the removal of the non-citizen from Australia was not reasonably practicable in the foreseeable future and detention was therefore potentially indefinite (BHFC (FCAFC) at [15]). The decisions to which the applicant referred in support of his application to re-open are: Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 (Plaintiff M47/2012) at [28] and [357], and Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 (Plaintiff M76/2013) at [180]. However, contrary to the applicant's submission, the High Court in M47/2012 and M76/2013 did not disturb the decision in Al-Kateb: see M47/2012 at [227] (Hayne J) (French CJ, Crennan and Kiefel JJ agreeing at [74], [406] and [461] respectively) and M76/2013 at [127]-[130] (Hayne J), [142]-[150] (Crennan, Bell and Gageler JJ (French CJ agreeing at [32])). As such, it is not demonstrated that the Full Court failed to consider a direct and binding authority so as to justify the grant of leave to reopen. 34 Finally, I note that the Full Court delivered the decision in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (NBMZ) shortly after the judgment in BHFC (FCAFC). In NBMZ, the Full Court held that the Minister was required to take into account the legal consequences of his decision in the exercise of discretion to refuse a protection visa being relevantly, in the case of that applicant, indefinite detention flowing from Australia's non-refoulement obligations and the terms of the Act. The failure by the Minister to have had regard to that legal consequence was held to result in jurisdictional error: NBMZ at [9]-[10] and [17] (Allsop CJ and Katzmann J) and [177]-[178] (Buchanan J). It follows that the Tribunal was under an obligation to have regard to that consequence and that the observation by Perry and Marshall JJ in BHFC (FCAFC) at [15] that "[n]othing in the application before the Tribunal required it to consider the appellant's indefinite detention as an element of a valid decision (although we do not suggest that it was an error for the Tribunal to do so)" was incorrect. However that observation was of no consequence to the decision because the Tribunal in fact considered that consequence in detail in its reasons at [39]-[46], as the Full Court also held in BHFC (FCAFC) at [15] (Marshall and Perry JJ) and [33] (Buchanan J).

4.2.4 The applicant's post-hearing submissions 35 The applicant filed a further submission on 19 February 2018 pursuant to leave granted on 14 February 2018 to file and serve submissions in reply addressing the authorities relied upon by the Minister at the hearing on that day. In that submission the applicant carefully considered each of the authorities in question. Ultimately, however, those submissions do not assist his case. 36 First, contrary to the applicant's submissions, the High Court decisions in 2012 and 2013 cited by him do not stand for the proposition that indefinite detention is unlawful and unconstitutional: see above at [33]. Secondly, the applicant submits that the decisions in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, Ashby, Australian Fisheries, De L, Dib, Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 and Smith v New South Wales Bar Association (1992) 176 CLR 256 are not relevant because they do not deal with a case of "false, misleading and deceptive evidence", being the way in which the applicant characterises the alleged statement by the Minister's counsel to the Full Court referred to at [27] above. However, each of those decisions are relevant to the extent that they explain, at the level of general principle, the circumstances in which leave to re-open may be granted: see above at [16]-[19]. I have relied upon those decisions only for this purpose, as did the Minister. It is not necessary to consider the other authorities on which the Minister relied, and to which the applicant's further submissions responded, as it was not ultimately necessary to rely upon them for the purposes of determining this application.

5. CONCLUSION 37 It follows for these reasons that no sufficient basis has been established to justify the grant of leave to reopen the decision of the Full Court under rule 39.04 of the FCR. I reiterate, however, the comments in the Full Court as to the appropriateness of the Minister giving consideration to the grant of a bridging visa to the applicant who finds himself facing the consequence of potential indefinite detention as an unlawful non-citizen: BHFC (FCAFC) at [16]. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.