CCU21 v Minister for Home Affairs

1. The Appellant's interlocutory application dated 5 July 2023 be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 On 31 May 2023 the Full Court ordered the issue of a writ of certiorari quashing a decision made by a Minister exercising powers under the Migration Act 1958 (Cth). The Minister had decided to refuse an application to revoke an anterior decision cancelling the Appellant's visa on character grounds. The Court's reasons for decision are CCU21 v Minister for Home Affairs [2023] FCAFC 87; 297 FCR 503 and these reasons assume a familiarity with those reasons. At the same time as the Court ordered the issue of a writ of certiorari, it also ordered the issue of a writ of mandamus commanding the Minister to determine the revocation application according to law. The formal order was in these terms: There issue to the First Respondent a writ of mandamus absolute in the first instance directing the First Respondent to determine the Appellant's revocation application according to law within 28 days. 2 On 28 June 2023 the Minister, acting in apparent conformity with the writ, decided once again that the cancellation decision should not be revoked. On 5 July 2023 the Appellant filed an interlocutory application seeking the issue of a writ of peremptory mandamus. The order sought was an order that: There issue to the Respondent a peremptory writ of mandamus directing the Respondent to determine the Appellant's revocation application according to law within 7 days. 3 The interlocutory application was accompanied by a Plea on the Return of the Order for Mandamus. The plea on return was amended on 28 July 2023. As formulated the plea denied that the Minister had complied with the order for mandamus. It alleged that in reaching the decision the Minister had made findings which were legally unreasonable and had acted in breach of the requirements of procedural fairness. It was therefore said that the Minister had failed to obey the instruction to determine the matter according to law. 4 So far as we are aware a peremptory mandamus has been issued only once and only by the High Court. That occurred in Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2015] HCA 3; 255 CLR 231 ('Plaintiff S297 (No 2)'). In that case, the original mandamus had been issued following a hearing in the High Court on questions which had been stated for the opinion of the Full Court in the form of a special case. Those questions concerned the validity of a determination by the Minister that purported to limit the number of visas of a specified class which could be granted in a specified year. The effect of the determination was that Plaintiff S297's protection visa application could not be granted. The High Court held the determination invalid: Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179. The Minister was then commanded to determine Plaintiff S297's visa application. 5 To grant the visa the Minister had to be satisfied that its issue was in the national interest. The Minister refused the application on the basis that the issue of the visa was not in the national interest because Plaintiff S297 was an unauthorised maritime arrival. That matter had not been raised in the first hearing. 6 On the application for a peremptory mandamus the Court observed at [12] that '[t]he answers to the questions asked in the special case in the plaintiff's proceedings were treated by the parties as resolving the controversy between them'. Having determined that the Minister could not take into account in assessing the national interest the fact that Plaintiff S297 was an unauthorised maritime arrival, the Court concluded that there was no basis on which the application could thereafter be refused by the Minister. It was in that context that the peremptory mandamus was issued. The Court said this at [41]: No other basis for the decision having been identified, the Minister cannot, and should not, now be given any further opportunity to consider the matter afresh. It is not suggested that, in the time between the issue of the writ of mandamus and this Court's determination of the present dispute about the sufficiency of the Minister's return to that writ, there has been any relevant change in any circumstances affecting the disposition of the plaintiff's application (apart from the 2014 Amendment Act). It is, therefore, not necessary to examine what consequences might follow if it were alleged that there had been some relevant change in circumstances. Rather, it is enough to observe that only one reason was given by the Minister for refusing the plaintiff's application. That reason was legally insufficient. And in his return to the writ, the Minister had the opportunity to identify any other reason for refusing the application. None was identified. The Minister should not now be given any further opportunity to identify a reason for refusing the plaintiff's application. 7 That is far removed from the circumstances of this case. In the course of this Court's reasoning in granting mandamus, consideration was given to whether the error which had been found was material to the Minister's decision. In that context and after setting out some inferences that could have been drawn about the Minister's reasoning process had it accorded with law, the Court observed at [98]-[99]: It seems to us that inference (a) was a realistic possibility although not the only possibility. If that inference were drawn, there was also a realistic possibility that the Minister could have decided to revoke the cancellation decision. Once the colour was drained from the criminal aspect of people smuggling, the Minister's reasoning about contempt for the law and low moral standards becomes more problematic although not necessarily insurmountable. As the Court pointed out during argument in Jaffarie, the moral obloquy of people smuggling is not always clear cut as the example of Oskar Schindler illustrates. This is not to say that the Minister might not have reasoned by reference to the particular features of this people smuggling venture that it reflected poorly on the character of the Appellant. Rather, it is only to observe that the shortcut of relying upon the supposedly criminal nature of the conduct as a crutch for that conclusion would not have been available. To do so, the Minister would have been required to conduct a more detailed analysis of the morality of this particular people smuggling venture. 8 Thus it was foreseen that it was possible that the application might be refused by the Minister. It follows that this case is distinguishable from Plaintiff S297 (No 2) because it is not the case here that there was only one decision open to the Minister when making the decision the second time. 9 No basis is shown therefore for the issue of a peremptory writ of mandamus. In fact, all that is disclosed in the present application are in effect arguable grounds of judicial review in respect of the most recent decision. The proper course is for the Appellant to commence a fresh judicial review proceeding. 10 On the hearing of the application both parties sought to have this Court determine those ostensible grounds of review; namely, the questions of legal unreasonableness and procedural fairness. This was done on the practical basis that the matter had been fully argued. However, having concluded that peremptory mandamus cannot be issued because the Minister was by no means bound to grant the visa, there is no basis upon which this Court could express conclusions having any legal significance. In particular, if we concluded that the second decision was affected by the suggested errors then we would be unable to give effect to that conclusion. Consequently, having concluded that peremptory mandamus is not available, we would, in that situation, be giving an advisory opinion. This is not only without the judicial power but would operate to the potential embarrassment of the judge who eventually determines any judicial review application in respect of the Minister's second decision. 11 We should add for completeness that we would strongly discourage applications of the present kind unless it can be shown that the grant of a visa was inevitable had the decision been made according to law. It is not appropriate that a Full Court be placed in the situation of determining what is nothing more than an ordinary judicial review proceeding. 12 The application for the writ should be refused with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perram, Halley and Goodman.