HSCK v Minister for Immigration and Multicultural Affairs

1. The citation of the first respondent be amended to the "Minister for Immigration and Multicultural Affairs".
2. The appeal be allowed.
3. The order of the primary judge on 28 March 2024 be set aside and replaced with orders that: (a) A writ in the nature of certiorari issue directed to the second respondent, quashing its decision dated 28 September 2023. (b) A writ in the nature of mandamus issue requiring the second respondent to determine the applicant's application to it according to law. (c) The first respondent pay the applicant's costs, as agreed or taxed.
4. The first respondent pay the costs of the appeal, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 On 28 September 2023, the Administrative Appeals Tribunal (as the second respondent was then known) affirmed the decision of a delegate of the Minister (the first respondent) not to revoke the cancellation of the appellant's Class XB Subclass 200 Refugee visa. In weighing the various considerations for and against revocation of the cancellation decision, the Tribunal concluded, in substance, that the interests of the protection of the Australian community lay in not permitting the appellant to be "released into the community". That reasoning rested on the proposition that if the appellant's visa remained cancelled, he would likely be detained indefinitely because of the poor prospects of finding another country that would accept him. 2 Two months later, on 28 November 2023, the High Court published its reasons for judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 415 ALR 254, holding that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia comes to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future. 3 On 28 March 2024, the primary judge dismissed the appellant's application for judicial review of the decision of the Tribunal. One of the grounds relied on, and dismissed, before the primary judge was that "the Tribunal's conclusion that the continuing indefinite detention of the applicant was justified by the protection of the Australian community was not open to the Tribunal" in light of the constitutional limit on executive detention as subsequently held by the High Court in NZYQ. 4 The appellant contends that "the primary judged erred in failing to find that the Tribunal made a jurisdictional error by failing to act on a correct understanding of the law by its understanding that indefinite detention was lawful and the likely consequence of its decision not to revoke the cancellation of the appellant's visa." 5 The judgment below predated the decision in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586. As explained in that case, the relevant decision-maker's understanding that the legal consequences of the Act extended to indefinite detention was an erroneous understanding of the Act and its operation, contrary to what was held in NZYQ. In other words, it was an error of law, and a material one. See AJN23 at [34], [54] per Murphy, Stewart and McEvoy JJ. 6 The Minister now concedes, prior to the hearing of the appeal, that the primary judge erred in failing to find that the decision of the Tribunal is affected by jurisdictional error. That is because the Tribunal failed to act on a correct understanding of the law by misunderstanding that the legal consequences of the Migration Act 1958 (Cth) included indefinite detention. The Tribunal's failure in this regard was an erroneous understanding of the Act and its operation: NZYQ at [9], [70]. That error of law was material, as the Tribunal's decision could realistically have been different had there been no error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 152 at [13]-[14]. 7 The parties have prepared proposed orders by consent which provide for the appropriate relief following the concession of jurisdictional error on the part of the Tribunal. In those circumstances, the Court must itself be satisfied of the alleged jurisdictional error and the appropriateness of exercising its jurisdiction to grant the relief sought: Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323 at [11]-[12] per French J, approved in Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; 174 FCR 574 at [13]-[15] per Downes, Greenwood and Tracey JJ. This is so even if the proper contradictor to an application for judicial review consents to that relief: VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921; 181 ALD 49 at [3] per Colvin J. 8 Having reviewed the reasons of the primary judge and the material put before the Court on appeal and having regard to the reasoning in AJN23, we are satisfied that there was jurisdictional error on the part of the Tribunal and the proposed orders should be made. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Stewart, McElwaine and McEvoy.