EPU19 v Minister for Home Affairs

The applicant's submissions 26 The applicant submitted that the Minister had failed to comply with the orders made in February and that this now justified the making of an order in the nature of peremptory mandamus directing the Minister to issue a protection visa. The applicant relied upon the expression of the test for peremptory mandamus as described by the High Court in Plaintiff S297/2013 v. Minister for Immigration and Border Protection (2015) 255 C.L.R. 231. In that case, the High Court had previously issued a writ of mandamus. The Minister's return to that writ, namely his decision to refuse the grant of a visa pursuant to s. 65 of the Act, was found to be "legally insufficient". At 247-248 [39], the Court said: … The issue of a peremptory mandamus is to enforce compliance with the writ which the Court had directed to issue in resolution of the matter then pending in the Court. A peremptory mandamus commands performance of the duty which was the subject of the writ but remains unperformed. What is important is that the Minister's return to the writ of mandamus was legally insufficient. It is that insufficiency which grounds the peremptory mandamus. As the editors of the first edition of Halsbury's Laws of England said: "where the applicant obtains judgment upon the argument of a point of law raised in answer to a return or other pleading or after pleading to the return, the applicant is entitled forthwith to a peremptory writ of mandamus to enforce the command contained in the original writ" (emphasis added; footnotes omitted). (Footnotes omitted.) 27 The High Court observed that the previous practice had been that a writ of peremptory mandamus needed to follow the exact words of the original writ of mandamus. This did not occur in Plaintiff S297. The Court explained why at 249 [44]-[45] as follows: … the practice to be adopted in this Court must accord with s 32 of the Judiciary Act 1903 (Cth) and its provision that this Court, in the exercise of its original jurisdiction, "shall have power to grant, and shall grant, either absolutely or on such terms and conditions as are just, all such remedies whatsoever as any of the parties thereto are entitled ... so that as far as possible all matters in controversy between the parties regarding the cause of action ... may be completely and finally determined" (emphasis added). The requirement that the Court provide such remedies as will finally quell the controversy between the parties permits, and in this case requires, the issue of a peremptory mandamus that does not follow the wording of the original writ. That course is required because the Minister gave only the one (legally infirm) reason for his refusal of the visa which the plaintiff sought and it is agreed that, apart from the cl 866.226 criterion, the other criteria prescribed for the visa by the Act and the Regulations had been satisfied. (Footnote omitted.) 28 Section 32 of the Judiciary Act 1903 (Cth.) (the "Judiciary Act") is equivalent to s. 22 of the Federal Court of Australia Act 1976 (Cth.) (the "Federal Court of Australia Act") which is in the following form: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided. 29 Ultimately, the relevant order made by the High Court in Plaintiff S297 was as follows: A peremptory writ of mandamus should issue commanding the first defendant to grant the plaintiff a permanent protection visa forthwith. 30 A similar order is sought here by the applicant. He contends that the Minister's response to the orders made by the Court in February was deficient because a "decision" concerning s. 36(1C) had already been made, and the Minister was now functus officio in relation to that "decision". Moreover, it was said, there was nothing in the Act which permitted the Minister to re-open his earlier conclusion. Delay arising from a fresh consideration of s. 36(1C) was, accordingly, unjustified. As a result, the Minister's compliance with the order in the nature of mandamus was deficient. 31 The applicant also submitted that the Minister's delay was a contrivance designed to defer the making of a decision under s. 65 until after BAL19 is overruled, as the Minister hopes, by the Full Court of this Court. With respect, that submission is not supported by any direct evidence, and I would not infer the existence of such a design from what the Minister has done so far. 32 Notwithstanding the terms of s. 476A of the Act, the applicant further submitted that I had jurisdiction to order the issue of the protection visa pursuant to s. 65 of the Act. Section 476A(1) and (2) are in these terms: 476 Limited jurisdiction of the Federal Court (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: (a) the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or (c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. Note: An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975: (a) a privative clause decision; (b) a purported privative clause decision; (c) an AAT Act migration decision. In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a), (b) or (c) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975. The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non-privative clause decisions. (2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. 33 The applicant submitted that an order requiring the issue of a visa pursuant to s. 65 of the Act was "in relation to" the Court's jurisdiction arising from the personal decision made by the Minister under s. 501. That jurisdiction should be construed, it was said, liberally. The applicant cited for that proposition the judgment of Gaudron J. in Knight v. F.P. Special Assets Ltd (1992) 174 C.L.R. 178 at 205. He also relied on s. 32 of the Judiciary Act or, if applicable, the terms of s. 22 of the Federal Court of Australia Act set out above (it is not necessary to decide which provision applies having regard to s. 476A(2) of the Act). 34 The applicant also submitted that if I were to decide that I did not have the power to order the issue of a visa pursuant to s. 65, I should instead transfer the proceeding to the Federal Circuit Court. This was because the interests of the administration of justice "require that some court be able to enforce mandamus". 35 The applicant finally sought an order for indemnity costs. He submitted that the Minister's attempt to delay compliance with the Court's orders, pending appellate review of BAL19, was "high-handed". I respectfully disagree with that observation. As I have already mentioned, there is no evidence to support an inference that the Minister has misbehaved in this way.