Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16

1. INTRODUCTION 1 These are two appeals by the Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs (the Minister) challenging the decision of a single judge of this Court given on 25 November 2019 with respect to two related proceedings: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033. 2 In the first proceeding below (NSD 1664 of 2019), the Minister sought judicial review of the decision by the second respondent, the Administrative Appeals Tribunal (AAT), on 18 September 2019 to set aside a decision by the Minister's delegate to refuse the first respondent, Mrs [CPJ], a Protection (Class XA) visa (the visa) under s 501(1) of the Migration Act 1958 (Cth) (the Act). 3 In the second proceeding below (NSD 1141 of 2019), Mrs [CPJ] sought a declaration and an order in the nature of mandamus in relation to the Minister making a decision on her application for the visa in accordance with the AAT's decision (AB11). 4 At the hearing, leave was granted to the Minister to amend the notice of appeal from the decision relating to the second proceeding, in terms of the proposed amended notice of appeal dated 15 April 2020. However, both appeals were dismissed on the ground that they were moot and this was not an appropriate case in which to resolve the issues sought to be agitated by the Minister. At the hearing, the Court explained that it would publish reasons later. Those reasons are explained below.

2. BACKGROUND 5 In the circumstances, the background to the appeals may be briefly stated.

2.1 The application for the protection visa and the delegate's decision 6 Mrs [CPJ] is a citizen of New Zealand aged in her early 40s. She arrived in Australia in early 2009 on a false passport. She applied for a protection visa on 21 September 2015 and has been in immigration detention since that time. Mrs [CPJ] is married and has a son of seven years of age living in the Australian community. 7 On 18 December 2017, the Migration and Refugee Division of the AAT found that Australia owed protection obligations in respect of Mrs [CPJ] (AB200). Subsequently, on 7 September 2018, a delegate of the Minister found that Mrs [CPJ] did not pass the character test as defined in s 501(6)(d) of the Act on the ground that there was a risk she would engage in criminal conduct in Australia (the delegate's decision) (AB207). Section 501(6)(d) provides that a person does not pass the character test if "in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would: (i) engage in criminal conduct in Australia…". While the delegate considered the risk that Mrs [CPJ] would engage in criminal conduct to be "low" (at [51]), the delegate nonetheless found that Mrs [CPJ] posed an unacceptable risk to the Australian community and refused to grant the protection visa.

2.2 The Tribunal's decision 8 A purported decision by the Tribunal affirming the delegate's decision was set aside by consent by the Federal Court in earlier proceedings and the matter was remitted to the Tribunal to be determined according to law by the Tribunal differently constituted. 9 The decision of the Tribunal relevant to these appeals was given on 18 September 2019. In that decision, the Tribunal set aside the delegate's decision and substituted a decision "that the applicant does not fail the character test in section 501(6)(d) of the Migration Act 1958 (Cth)" (AB101). In so deciding, the Tribunal found among other things that: (1) it was not in contest that non-refoulement obligations are owed by Australia in respect of Mrs [CPJ] on the ground that she has a well-founded fear that a gang will attempt to murder her if she returns to New Zealand (at [10]); (2) during her period in immigration detention she has been subjected to attacks on several occasions by other persons in detention which she believes have been orchestrated by the New Zealand gang (at [11]); (3) she has a criminal record but the courts have dealt with her without imposing any custodial sentence, except on one occasion in 2010 in Australia when she was sentenced to 28 days in prison (at [12]); (4) in the event of refusal of a protection visa, Mrs [CPJ] would face the prospect of indefinite detention inconsistently with the "dictates of good government" (at [14]-[15]); and (5) there were strong humanitarian reasons why the discretion should be exercised in her favour (at [20]). 10 Importantly for present purposes, the Tribunal rejected the Minister's submission that it ought also to find that Mrs [CPJ] failed the character test specified in s 501(6)(c) of the Act on the ground that that issue had not been considered by the delegate and was not therefore properly before the Tribunal (at [53]-[65]). Section 501(6)(c) provides that a person does not pass the character test if the person is not of good character having regard to the person's past and present criminal or general conduct. Furthermore, in making a decision in substitution for the delegate's decision rather than remitting the matter for reconsideration, the Tribunal (at [67] of its reasons) took into account: (1) the risks of injury posed to Mrs [CPJ] if the matter were remitted and she were kept in detention; (2) the Tribunal's view that even if the delegate decided the question arising under s 501(6)(c) adversely to Mrs [CPJ], the delegate acting properly would follow normative decisions of the Tribunal which "should lead him or her not to refuse the protection visa on discretionary grounds"; and (3) the delegate's decision was incorrect and no occasion arose to refer it for reconsideration.

2.3 The decision of the primary judge 11 By his application for judicial review, the Minister relevantly submitted that the Tribunal had erred in not considering whether the applicant passed the character test by reference to s 501(6)(c) or, in the alternative, by directing that, when considering any outstanding matters under s 65(1)(a), the Minister could not refuse to grant the visa under s 501(1). 12 The primary judge rejected those contentions, holding that: 66. I am of the opinion that the Tribunal's task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate's findings and reasons, so that the character of the review can be shaped by that consideration. Once the challenged ground for the decision-maker's exercise of his or her power is identified, the Tribunal must make its decision having regard to the evidence, submissions and factual context at the time of its decision: Shi 235 CLR at 329-330 [146]-[149]. (emphasis added) 13 As the delegate had "eliminated from the scope of his consideration any … potentially adverse criteria" aside from s 501(6)(d) of the Act, the primary judge therefore held that the Tribunal did not err in failing to consider whether Mrs [CPJ] passed the character test under s 501(6)(c). 14 As to the relief sought by Mrs [CPJ], the primary judge rejected the Minister's submission that the Minister's consideration of the possible exercise of his powers under s 501A(2) was a factor operating to prevent the grant of the visa under s 65(1)(a)(iii) of the Act; rather, his Honour held that the grant of the protection visa was not prevented by s 501A(2) unless and until the Minister refused to grant the visa (at [82]). Given the length of time over which Mrs [CPJ] had been deprived of her liberty awaiting a final decision and there being no obstacle to that decision being made aside from the possible use of s 501A(2), the primary judge was also satisfied there was sufficient urgency to justify imposing a time limit for the Minister to make a decision on whether or not to grant the visa under s 65(1)(a) (primary judge at [84]). In this regard, the Minister's legal representatives had confirmed that no criteria remained to be determined for the grant of the appellant's protection visa application under s 65(1)(a) subject to the Minister's consideration of whether he would exercise his powers under s 501A(2) of the Act (primary judge at [47]). 15 The primary judge also held that it was appropriate to make the declaration sought by Mrs [CPJ], namely, that the Minister's consideration of whether he will exercise his power under s 501A(2) does not prevent the grant of the visa (at [85]-[87]). 16 In the circumstances, therefore, the primary judge made orders as follows: 1. It be declared that in respect of the notice of intention to consider refusal to grant a protection visa under s 501A(2) of the Migration Act 1958 (Cth) that the second respondent, acting personally, gave to the applicant on 17 October 2019 any conduct preparatory to the making, or consideration, of such a refusal does not prevent, within the meaning of s 65(1)(a) of the Act, the grant of a protection (subclass 866) visa to the applicant. 2. The second respondent determine the applicant's application for a protection (subclass 866) visa pursuant to s 65 of the Migration Act 1958 (Cth) according to law on or before 6 December 2019. 3. The second respondent pay the applicant's costs.

3. REASONS FOR DISMISSING THE APPEAL 17 The issues which the Minister seeks to agitate on the appeals may be summarised as follows: (1) whether the AAT proceeded on a misconstruction of its review function under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) in refusing or failing to consider whether Mrs [CPJ] did not satisfy the "character test" in s 501(1) of the Act by reference to s 501(6)(c); (2) alternatively whether the AAT erred in directing that upon reconsideration, the Minister was not able to refuse the visa under s 501(1) of the Act when the other aspects of the character test under s 501(6) had not been considered by the AAT or the Minister; (3) whether the primary judge erred by construing s 65(1)(a)(iii) of the Act to mean that it did not apply to prevent the grant of a visa in circumstances where the Minister was considering the possible exercise of his powers under s 501A of the Act; (4) whether the primary judge erred by making a declaration as to the construction of s 65(1)(a)(iii) of the Act when that declaration had no utility in the proceeding and was not correct; and (5) whether the primary judge erred in ordering the Minister to determine Mrs [CPJ]'s application for the visa pursuant to s 65 of the Act on or before 6 December 2019 on the basis that the Federal Court has no original jurisdiction in relation to a decision under s 65 save in the circumstances referred to in s 476A(1)(a) of the Act. 18 As the Minister accepted at the hearing, the last of these issues was now moot because the Minister had complied with the writ of mandamus, making a decision under s 501A(2) to refuse Mrs [CPJ]'s application for the visa on 6 December 2019 and therefore within the timeframe set by writ. The Minister's decision of 6 December 2019 also rendered the other grounds of appeal moot because the Tribunal's decision was no longer operative, having been wholly superceded by the later, adverse decision of the Minister. 19 In circumstances at least where the Minister also challenged the primary judge's orders as to costs, we are satisfied that this Court still has jurisdiction over the appeals notwithstanding that an advisory opinion only with respect to the substantive issues on appeal is sought. In such a case, in Bonan v Hadgkiss [2007] FCAFC 113; (2007) 160 FCR 29 (Bonan) the Full Court explained the principles by which the Court might determine whether or not to proceed to hear the appeal: 8. As a general principle a Court should refuse to address an advisory opinion in respect of issues of which there is no longer a controversy between the parties (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355, at [47]). However, the Court retains discretion to continue to hear an appeal in circumstances where the subject-matter of the appeal has been rendered moot by reason of a change in circumstances or otherwise (Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438 (Long); Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 (Al Masri); Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [1999] FCA 1652 (Hope Downs)). … 10. There is no limit on the considerations which may be taken into account in determining whether to exercise the discretion to continue to hear and determine the appeal where the only live issue between the parties is the costs order made below. However, the authorities show that the courts have had regard to the following factors in determining whether to exercise the discretion: whether the decision under appeal has ramifications which extend beyond the facts of the case in question and it is in the public interest that the issue be resolved (Al Masri); whether the decision under appeal reflects adversely upon the reputation of one of the parties and the determination of the appeal may serve to vindicate that party's reputation (Vanstone v Clark (2005) 147 FCR 299); whether a finding of bad faith by the decision maker has been made (Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431); whether there is doubt over the correctness of the decision under appeal (Federal Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573 (IEL); Al Masri); the amount of judicial resources which would be taken in hearing and determining the appeal (IEL); and the costs issue (Long; Al Masri; IEL). 20 However, as the Full Court also emphasised in Bonan at [11], "… the presence of one or more of those factors does not mean that the discretion will be exercised in favour of hearing and determining the appeal. Each case must be considered on its facts." 21 In support of the exercise of discretion, the Minister submitted that: First, … there remains a prospect of further litigation by [Mrs CPJ] about her detention which would rely on the effectiveness of the AAT's decision and/or the primary judge's declaration. It would not be open to the Minister in such proceedings to argue that the decision of the AAT was a nullity, in the face of the primary judge's decision: these proceedings are the only opportunity to do that. This means that the appeals are not "moot". (They are in any event not wholly moot because costs remain in issue.) Secondly, the decision made on 6 December 2019 is itself subject to an application for judicial review. Unfairness would arise if it were set aside, but meanwhile the fact that it was made had prevented the Minister from agitating the validity of the AAT's decision - particularly since the timing of the 6 December 2019 decision was forced on the Minister by the orders that the primary judge made in NSD 1141/2019 (AB 72). Thirdly, the judgment below has significant implications for the conduct of AAT reviews of decisions under section 501 of the Migration Act and potentially more generally. 22 While senior counsel for the Minister elaborated upon these grounds to some degree in oral argument, these propositions remained at the heart of his case as to why the appeals should proceed. 23 In our view, this is not an appropriate case in which the discretion should be exercised in the Minister's favour having regard to the following considerations. 24 First, the Minister confirmed at the hearing that he did not wish to press the appeals insofar as they applied to adverse costs orders absent the other grounds. As such, the controversy as to costs does not stand separately from the other grounds of appeal. 25 Secondly, at this stage the question of whether Mrs [CPJ] may institute proceedings about her detention, such as by an action for damages for false imprisonment, is entirely hypothetical. Furthermore, if any such action were instituted, in our view that would be the appropriate stage at which the Minister may, if so advised, contend that the Tribunal's decision was a nullity because at that point the question would no longer necessarily be moot. In so saying, we accept that such a challenge might be made by way of a purely formal submission at first instance only so as to preserve the Minister's rights on appeal in that proceeding. 26 Thirdly, it is wrong to say that the timing of the 6 December 2019 decision was "forced" on the Minister (Minister's submissions dated 4 May 2020 at [8]). The time frame set by his Honour within which the Minister was required to determine the application for a protection visa was "common ground", albeit that the Minister's primary submission was that no time limit should be imposed (primary judge at [6] and [88]). More fundamentally, despite the Minister's contention on appeal that the primary judge lacked jurisdiction to make the order, the Minister did not seek a stay of the order; nor did the Minister apply to vary the order in the nature of mandamus pending the determination of the appeal. The change in circumstances rendering the appeals moot was therefore one brought about by the Minister's conduct. 27 Fourthly, the fact that the decision under appeal may potentially affect other decisions by the Tribunal does not outweigh the other considerations to which we have referred. The advisory nature of these appeals renders them inappropriate vehicles for these issues to be litigated. In this regard, we endorse by analogy the observations of Cooper J in Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 at [17] (cited with approval in Bonan at [12]) that: What [the Civil Aviation Safety Authority] seeks in par 2 of the relief sought is in the nature of an advisory opinion or a direction to the AAT as to how it shall, by its members in all future matters, exercise the discretion under s 41(2) of the AAT Act in a particular way in respect of any reviewable decision under the Act. As between CASA and the AAT, the declaration sought involves no declaration of a legal right in actual controversy which the declaration would confirm or modify and which remains capable in a real and genuine sense to be enjoyed … It is insufficient that CASA has a genuine interest in having the legal issues resolved for the benefit of its administration of the Act in future cases which may arise. Those issues will, in an appropriate case, be resolved in litigation where they are real and will have a practical effect in respect of a controversy. 28 As such, even though we did not regard the decision of the primary judge to be self-evidently correct, we considered on balance that it would be not be appropriate to determine the correctness of that decision on these appeals.

4. CONCLUSION 29 It follows for these reasons that we ordered that the appeals must be dismissed. No order as to costs was made upon Mrs [CPJ] confirming that no costs had been incurred by her in the proceedings on appeal. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick, Perry and Thawley.