Consideration
32 As the Minister submitted, the language used in the formulation of the ground of appeal is redolent of the language of this Court's migration jurisprudence and, in particular, Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] (Allsop J, Spender J agreeing at [1]). There, in the context of the obligation of the Refugee Review Tribunal to review a decision of the Minister (or the Minister's delegate) under s 414 of the Migration Act 1958 (Cth), Allsop J made the following observations:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.
33 The language does appear to be inapt in the present context. Be that as it may, since it was the essence of Mr Heiner's complaint, the Commission was at least bound to consider whether his claim to have been arbitrarily denied a right to enter Australia had any substance before it could exercise its power to dismiss the complaint under s 20(2)(c)(ii) - unless there was another basis for terminating the inquiry early. It stands to reason that the Commission could not lawfully dismiss a claim because it was lacking in substance without first considering whether it had any substance. If the complaint had been dismissed only under s 20(2)(c)(ii), then in the absence of any other basis a failure to consider the claim would amount to a failure to complete the jurisdictional task. In those circumstances, a failure to consider that claim might be a jurisdictional error, provided it were material (see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421), or an error of law. But the complaint was dismissed under s 20(2)(ba). The Court was not taken to any authority on the scope of this power. On its face, however, it plainly gives the Commission a very broad discretion, the scope of which is not subject to any express limits and Mr Heiner did not point to any implied limits. Indeed, he did not engage with the section at all.
34 In any case, on a fair reading of the Commission's reasons, the Commission did consider and deal with Mr Heiner's claim that he had been "arbitrarily alienated and denied entry to his own country Australia".
35 For the purposes of determining whether Art 12(4) applied and as the Commission appears to have accepted, it did not matter whether Mr Heiner was an Australian citizen; the concept of "his own country" is broader than "country of his nationality": see, for example, Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 141 at [50]. Certainly the Commission did not find that a reason his claim was lacking in substance was that Australia was not Mr Heiner's "own country".
36 In determining that the claim was lacking in substance the Commission said, amongst other things:
Firstly, the information before the Commission does not support that you were prevented from traveling to, or otherwise denied re-entry to, Australia in 2019 because of the cessation of your Australian citizenship and/or the Four Decisions. Rather, the information before the Commission indicates that you were not able to enter Australia in 2019 because you failed to satisfy the Public Interest Criteria 4004 (the PIC 4004) requirement attached to the Visitor Visa Application. It appears that anyone who acquired Australian citizenship by birth, whose Australian citizenship subsequently automatically ceased due to the operation of section 17 of the 1948 Act, who applies for an eVisitor visa and satisfies the PIC 4004, would have been issued with the visa and consequently allowed to enter Australia on such visa.
Based on the information before the Commission, I am of the opinion that had you paid the Debt, or otherwise entered into an acceptable payment arrangement for the Debt with Home Affairs, the PIC 4004 requirement would have been satisfied and that you may have been issued with the eVisitor visa to enter Australia. Home Affairs says it provided information regarding the payment arrangements in its emails of 12 September 2019 and 15 and 17 October 2019 to you; however, you did not respond to this correspondence within the legislative timeframes, resulting in the Visa Refusal Outcome. While you say in your email of 11 March 2020 that the Minister for Home Affairs was informed of your late sister's then critical condition a month prior to the notification of the Visa Refusal Outcome of 4 December 2019, it is unclear why you did not respond to Home Affairs' correspondence of 12 September 2019 and 15 and 17 October 2019 within the legislative timeframes to attempt to make an acceptable payment arrangement for the Debt to satisfy the PIC 4004 requirement so to be able to enter Australia with the eVisitor visa ...
37 While these paragraphs do not expressly mention Art 12(4), it is apparent that they are addressing Art 12(4). They refer to "enter" and "re-entry" which goes to the subject matter of Art 12(4). The Commission's position was that, on the information before it, there was no substance to the claim that the Minister had denied Mr Heiner entry to Australia arbitrarily.
38 Some of Mr Heiner's submissions strayed beyond the scope of the notice of appeal.
39 While he asserted in his submissions that "[n]o source of constitutional power to make [him] foreign [had] been declared", he informed the primary judge that he was not raising a constitutional issue and did not issue a s 78B notice. In the circumstances, it was not open to him to raise the issue on appeal, at least without leave and leave was not sought. In any case, as the Commission recognised, it was beyond its jurisdiction to deal with that issue.
40 Mr Heiner suggested in his submissions that the Minister's decision to rely on his debt to the Commonwealth was a discretionary decision which exceeded the Minister's power. That suggestion must be rejected because Mr Heiner was not an Australian citizen at the time he sought entry in 2019 and s 65 of the Migration Act imposed a duty on the Minister to refuse Mr Heiner's visa application if he did not satisfy the criteria for the visa.
41 Mr Heiner also submitted that the Commission terminated the inquiry without hearing from him. That submission must be rejected first, because it is outside the scope of the appeal, no denial of procedural fairness having been alleged, and second, because he was heard. He made several representations to the Commission which the Commission took into account.
42 Mr Heiner further submitted that it was necessary for the Minister to point to a power "enlivened by [his] circumstances to make him foreign lawfully". As the Tribunal found, however, he lost his Australian citizenship by lodging the declaration that made him an Irish citizen. That consequence flowed from the operation of s 17 of the 1948 Act. To the extent that this submission rested on the proposition that s 17 was unconstitutional, it is beyond the scope of the appeal for the reasons we have already given.
43 Views might differ as to whether the Commission was right to conclude that the complaint was without substance or, a continuation of the inquiry was unwarranted. But that is immaterial for three reasons.
44 First, judicial review is not concerned with the merits of an administrative decision but with its legality. As Brennan J explained in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
45 Second, the appeal was narrow in its scope. While Mr Heiner's original notice of appeal contained a broader series of allegations, it was struck out: Heiner v Minister for Home Affairs [2021] FCA 1125 (Kerr J). His Honour was not satisfied, however, that Mr Heiner's complaint regarding Art 12(4) had no reasonable prospects of success (at [39]). He gave Mr Heiner leave to file an amended notice of appeal confined to such grounds as would put in issue whether "the learned trial judge erred by failing to find that [the] Commission fell into one or more reviewable errors as are available under the ADJR Act in dealing with his complaint that he was a person possessed of rights under Article 12(4) of the ICCPR which rights had been denied to him" (at [42]). To the extent that the amended notice of appeal identified a reviewable error available under the ADJR Act, it was the kind of error covered by s 5(1)(e) and (2)(b), s 5(1)(c) and (f). But the alleged error was limited to a failure to "deal with" the claim that his rights under Art 12(4) had been breached. Whatever the merits of any other ground or grounds that could have been pleaded, including any other paragraph of s 5(2), Mr Heiner must be held to his pleading.
46 Third, the primary judge was right to conclude that, even if the Commission did commit reviewable error, the decision is independently supportable on either or both of the other bases upon which it made its decision: Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1 (the AEU case) at [34] (French CJ, Hayne, Kiefel and Bell JJ). As Heydon J said in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [124] in a passage endorsed by the plurality in the AEU case:
If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.
47 Mr Heiner did not address this matter in his written submissions or in oral argument, although the point was made by the Minister both at first instance and on the appeal.
48 The first independent basis was the availability of other actions or remedies. The Commission explained in its reasons:
As it relates to the subject matter of your complaint, namely Home Affairs' decision in regard to the Visa Refusal Outcome, I consider that the situation could have been remedied by either the payment of the Debt or entering into appropriate arrangements with Home Affairs with respect to the payment of the Debt, when you were understandably advised of these options in Home Affairs' emails of 12 September 2019 and 15 and 17 October 2019. These options were seemingly communicated to you at least more than two months prior to Home Affairs' decision of 4 December 2019 in regard to the Visa Refusal Outcome. It is unclear why you did not contact Home Affairs to explore these options to attempt to remedy the issue regarding the PIC 4004 requirement not being met with respect to your Visitor Visa Application within the legislative timeframe, which ultimately resulted in the Visa Refusal Outcome.
49 The Commission was plainly of the opinion that paying the debt or entering into an arrangement with Home Affairs to pay the debt was a more appropriate remedy in relation to the subject matter of the complaint which was reasonably available to Mr Heiner (AHRC Act, s 20(2)(c)(iv)).
50 The Commission also noted that it was open to Mr Heiner to apply to resume his Australian citizenship years before he was denied entry to Australia but declined to do so.
51 The second independent basis was that the Commission did not consider that there was any reasonable prospect of the matter being settled by conciliation (AHRC Act, s 20(2)(c)(iib)). The Commission explained that it did not have the power to make an enforceable decision in relation to a complaint about alleged breaches of human rights; it could only try to help the parties to resolve a complaint through conciliation. It also explained that, if the matter is not resolved in this way, an aggrieved person cannot obtain a remedy in the courts (contrast the position in relation to complaints of unlawful discrimination: see AHRC Act, s 46PO). The Commission then referred to the relief Mr Heiner was seeking from the Commission as set out in his email of 23 January 2020 and explained to him that it was beyond its jurisdiction to provide it. It noted that Home Affairs had said in its response that it was not in a position to agree to, or participate in, conciliation. The Commission concluded that:
Overall, having considered the above, I am of the opinion that the practical outcomes and remedies are unlikely to be achieved through the Commission's complaint and conciliation process.
52 In effect, the Commission's conclusion was that conciliation would be futile. That conclusion was open on the material before it.
53 Mr Heiner contended that he was willing to participate in a conciliation but accepted that the Minister was not. He submitted that "[e]ffective conciliation depends on breach of Art 12(4) tested in terms of the Constitution and the Appellant's particulars, and whether protection and compensation for the appellant and his family is warranted". Neither of these outcomes was available through the Commission's processes.
54 Mr Heiner submitted that the Court might find that he was unlawfully denied a visa on humanitarian grounds or that he could not lawfully be denied a visa at any time. That submission must be rejected. This Court is hearing an appeal on a limited ground from an application for judicial review of a decision of the Commission. It has no power to inquire into the legality of the visa refusal. If Mr Heiner wanted to challenge the legality of the decision to refuse to grant his visa application, he could only do so by filing an application for constitutional writs in the Federal Circuit and Family Court of Australia (Division 2) and the time in which he could do so has long since passed (see Migration Act, ss 474, 476A, 477).