Mowatt v Minister for Immigration and Border Protection

1. The Applicant be granted leave to amend the Application filed on 10 June 2016 to raise the additional ground referred to as Ground 3 in Attachment 1 to the Interlocutory Application filed on 28 April 2017.
2. The proceeding be listed for mention at 9.30am on 17 October 2017.
3. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 Mr Mowatt sought leave to add further grounds to an application for judicial review of a decision by the Minister declining under s 501CA(4) of the Migration Act 1958 (Cth) ("the Act") to revoke an earlier decision by the Minister's delegate made under s 501(3A) of the Act to cancel the applicant's visa. Mr Mowatt had previously sought, and was granted, leave to amend his application, but he sought leave to make further amendments upon having become informed of the proceeding pending in the High Court in Falzon v Minister for Immigration and Border Protection (S31 of 2017) in which Mr Falzon has challenged the constitutional validity of s 501(3A) of the Act as an invalid conferral of judicial power on the Minister contrary to Chapter III of the Constitution. Mr Mowatt also sought to have vacated and postponed the hearing of his application from 6 June 2017 until the determination by the High Court of the decision in Falzon. The Minister conceded that the grounds proposed to be added by Mr Mowatt were substantially the same as those raised by the plaintiff in Falzon and in written submissions the Minister did not oppose any of the orders sought in Mr Mowatt's applications to amend the grounds, to vacate the hearing or to adjourn the hearing of his application until after the decision of the High Court in Falzon. Orders were made on 6 June 2017 granting Mr Mowatt leave to add the "Falzon grounds" to his application and adjourning the hearing of Mr Mowatt's application, with the parties consenting that reasons be provided subsequently. 2 The Court has a discretion in determining whether to grant leave to a party to add to the grounds of an originating application under r 8.21(1) of the Federal Court Rules 2011 (Cth). In Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2015] FCA 1098 Gleeson J considered the applicable principles and said at [125]-[128]: 125 The applicable principles are well established. The Court's powers in rules 8.21(1) and 16.53 are broad. Consideration of whether to grant leave to amend must be undertaken in accordance with the overarching purpose set out in s 37M(1) of the Federal Court Act: Australian Competition and Consumer Commission v Jutsen (No 2) [2010] FCA 982 at [12]; Suzlon Energy Ltd v Bangad [2011] FCA 92; (2011) 196 FCR 259 at [19]; University of Sydney v ResMed Limited (No 5) [2012] FCA 232 at [14]; Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 at [8]. 126 The onus is on the party seeking leave to amend to persuade the Court that such leave should be given: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17]. 127 The principles articulated by the High Court in Aon apply to matters in this Court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 ("Cement Australia") at [43]. Relevant matters the Court is to consider include: (1) The nature and importance of the amendment to the party applying for it: Aon at [102]; (2) The extent of the delay and the costs associated with the amendment: Aon at [102]; (3) The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102]; (4) The explanation for any delay in applying for that leave: Aon at [108]; and (5) The parties' choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 ("Luck") at [44]; (6) The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and (7) Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30]. 128 The weight to be given to the considerations identified in Aon, individually and in combination, and the outcome of the balancing process, may vary depending on the facts in the individual case: Cement Australia at [51]. In the present circumstances those considerations warrant the grant of leave for Mr Mowatt to add the "Falzon grounds" to his application. The "Falzon grounds" seek to put the constitutional validity of s 501(3A) in issue in Mr Mowatt's proceeding. The Minister's cancellation of Mr Mowatt's visa under s 501(3A) of the Act will be found to be invalid, if Mr Mowatt is successful on the "Falzon grounds", with the consequence that the Minister's non-revocation decision under s 501CA(4) cannot stand either (a) because there was no decision that was capable of being revoked under s 501CA of the Act or (b) because the Minister's non-revocation decision was itself invalid. There is no substantial prejudice flowing to the Minister by reason of the proposed amendments and any delay in applying for leave was adequately explained in an affidavit filed for Mr Mowatt in support of the application. The proceedings in Falzon came to the attention of those acting for Mr Mowatt when informed of the Falzon proceeding by the Minister's solicitor. An application to this Court to add the "Falzon grounds" was made promptly after becoming aware of the issue in the Falzon proceeding. It would be undesirable for Mr Mowatt to be denied the ability to rely upon grounds which are being considered in Falzon and which, if the plaintiff in Falzon is successful, would mean that Mr Mowatt's rights had been determined upon a basis which was constitutionally invalid if Mr Mowatt were not permitted to rely upon the Falzon grounds. 3 The adjournment of the proceeding, and its postponement until after the decision in Falzon, however, raises different considerations. Proceedings should not generally be adjourned pending the determination of other proceedings. In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 Starke J said at 253: Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future. An adjournment has been held not generally to be appropriate because of a belief that a change in the law by legislation may be pending that would change the respective rights of the parties (see R v Whiteway; ex parte Stephenson [1961] VR 168) or because of a possible change in the law by the decision of an appeal pending in the High Court (see Geelong Football Club Limited v Clifford [2002] VCSA 212): see also Sydney City Council v Ke Su Investments Pty Ltd [1985] 1 NSWLR 246; City of Sydney Council v Satara [2007] NSWCA 148. The position is different where the parties to a case seek to have tested in an appeal a proposition established in a decided case: see Re Yates' Settlement Trusts [1954] 1 All ER 619; R v Whiteway; ex parte Stephenson [1961] VR 168. The reason for the difference stems from the level of certainty to be obtained by having a case tested and the knowledge that the decision of the higher court will declare the law on the relevant topic with retrospective effect: see Meggitt Overseas Limited v Grdovic (1998) 43 NSWLR 527, 534-5; City of Sydney Council v Satara [2007] NSWCA 148, [22]. The outcome of the proceeding in Falzon by the High Court will have a similar level of certainty about the constitutional challenge sought by Mr Mowatt to be made in these proceedings by raising the same grounds as are raised in Falzon. 4 A similar application to that made by Mr Mowatt was made in Splendido v Assistant Minister for Immigration and Border Protection [2017] FCA 605 which was adjourned in light of the proceeding in Falzon. Mr Mowatt, like Mr Splendido, is in custody but does not seek to have his proceeding determined before the decision of the High Court in Falzon. Neither Mr Mowatt, nor the Minister, proposed to advance any argument in these proceedings in relation to the Falzon grounds. Neither party, in other words, as was also the case in Splendido, sought to have determined in these proceedings the "Falzon grounds" subject to any subsequent right of appeal or to make any other subsequent application which they may have. 5 The Minister nevertheless submitted that the Court should decide the "non-Falzon grounds" and leave the balance of the proceeding to be determined after the decision in Falzon. An assumption in that submission was that the balance of the issues in the proceeding (that is, that the "non-Falzon issues") would not be affected by the outcome of the decision in Falzon. The Minister's written submissions contained a statement that the Minister did "not consider that any of the matters subject of the Falzon proceeding will bear upon this Court's consideration" of the "non-Falzon grounds". The written submissions did not, however, explain the basis for that view or otherwise assist the Court to determine for itself whether that was so and the Minister did not apply for the separate hearing of any question under r 30.01 of the Federal Court of Australia Rules 2011 (Cth): see also Splendido v Assistant Minister for Immigration and Border Protection [2017] FCA 605, [7]. 6 The written submissions for Mr Mowatt, in contrast, more helpfully sought to explain that the decision of the High Court in Falzon, even if the plaintiff in Falzon was unsuccessful, might have an impact on the "non-Falzon grounds" raised by Mr Mowatt. The written submissions for Mr Mowatt relevantly submitted in this regard: 24. However, even if the plaintiff in Falzon is unsuccessful, the Applicant submits that the Falzon judgment may nonetheless have an impact on the present proceeding. This is because, from the way in which the Falzon plaintiff's claim is framed in his Application for an Order to Show Cause and his Submissions, there is a reasonable possibility that the High Court may decide on issues which affect Grounds 4 and 5 of the extant grounds in this proceeding. 25. In relation to the potential impact on Ground 4 of the Amended Application in this proceeding, the Falzon plaintiff submits that s 501(3A) falls foul of Chapter III of the Constitution on numerous bases, including that: (a) in "exercising the s 501(3A) power, the Minister is not obliged or empowered to have regard to the protection of the Australian community or any other protective consideration" (at of the Application for an Order to Show Cause); (b) "there is no duty to revoke a s 501(3A) decision even if the Minister is satisfied that the person does not pose a risk to the Australian community" (at of the Application for an Order to Show Cause); and (c) "s 501(3A) does not rationally or proportionately pursue a protective purpose. … It applies to persons who the courts or executive believe pose no risk to the community. The connection between the seriousness of offending and the fact that a person is serving a full-time sentence of imprisonment is no more than arbitrary" (at of the Application for an Order to Show Cause). In the Applicant's submission, these bases may provide an opportunity for the High Court to consider the relevance to the s 501(3A) analysis of the level of risk that a person poses to the Australian community. If the High Court were to determine, for example, that as a matter of construction, the Minister was required to revoke a s 501(3A) decision if satisfied that a person did not pose a risk to the Australian community, this would materially affect Ground 4 of the Applicant's Amended Application. There is no reason to think that any analysis provided by the High Court in relation to the construction of s 501(3A) would not be equally applicable to an exercise of power under s 501CA(4) of the Act. 26. In relation to Ground 5 of the Amended Application in this proceeding, the Falzon plaintiff submits that one basis upon which s 501(3A) falls foul of Chapter III of the Constitution is that the section "in its legal or practical operation, by reason of s 189 of the Act, exposes a person to extra-judicial detention". This invites the High Court to consider whether the detention which is authorised by the statutory regime violates of Chapter III of the Constitution. Even if the High Court determines that it does not do so, there is a reasonable prospect that the Court will provide guidance as to the type and manner of detention that s 501(3A) authorises, and that this may have implications for Ground 5 of the Applicant's Amended Application. The Applicant accepts, however, that these implications are likely to be less direct than the implications flowing in relation to Ground 4. 27. On these bases, the Applicant submits that even if the Falzon plaintiff is unsuccessful, there is a reasonable possibility that the High Court may, in the course of considering the issues raised in that case, decide on an issue in a way that impacts upon Grounds 4 and 5 of the extant grounds in the Applicant's Amended Application. The Applicant is in the Court's hands as to the best way to proceed in these circumstances. The Applicant would be amenable to deferring final argument on the two extant grounds until the delivery of judgment in Falzon, if the Court considered this to be an appropriate course. It is neither necessary nor appropriate to consider the strength of these submissions in light of the submissions made by the Minister and the way in which the Minister's submissions dealt with any question of potential impact upon the "non-Falzon grounds" of any decision by the High Court in the Falzon proceeding. For present purposes it is sufficient, in light of the Minister's position in these proceedings, to observe that counsel for Mr Mowatt would wish to rely upon the decision in Falzon in support of the non-Falzon issues if possible. That would mean, in other words, that any hearing by this Court of the non-Falzon issues would not, or at least might not, finally be decided and might require re-argument after the decision in Falzon. 7 It is generally undesirable for judicial proceedings to be adjourned pending the hearing of other proceedings between other parties on the basis that the outcome of those proceedings may have an impact upon those which are sought to be adjourned. Adjournments of that kind create an undesirable backlog in the Court and impede proper and efficient administration by the Minister and by his department. It is also undesirable, however, for proceedings to be conducted on a basis which may require reconsideration of issues which were intended to have been finally determined but which may require reconsideration where a case is not conducted upon the basis that all of the issues between the parties are finally determined subject to any rights they may have for an appeal or to make any other consequential application. It is significant in this matter that the Minister did not seek to have the proceeding finally determined by this Court dealing also with the Falzon grounds subject to any rights of appeal or other application. It is also significant that the Minister made no application for the separate hearing of any question under r 40.01 and made no submission from which the Court was able itself to evaluate the statement made in written submissions that the Minister did not consider that the matters raised in the Falzon proceedings would bear upon the Court's consideration of the other grounds in Mr Mowatt's proceeding. The Court was not in a position itself to evaluate all of the issues that will be raised in Falzon and ought not to speculate on the impact of what may be said in the decision in Falzon on the other grounds raised by Mr Mowatt in this proceeding. The submissions made for Mr Mowatt about a potential overlap are plausible and are for present purposes sufficient to warrant a conclusion that any determination of the "non-Falzon grounds" in Mr Mowatt's application may need to be reconsidered after the decision in Falzon. In those circumstances a hearing of the "non-Falzon grounds" might not finally be determined in a hearing before the decision in Falzon and it will be more efficient for all issues to be decided in one hearing once Falzon has been decided. 8 The fact that Mr Mowatt, like Mr Splendido, is in custody is, however, a "weighty consideration" against an adjournment in terms which are expressed to be for an indeterminate period pending the outcome of the proceeding in the High Court: see BLD15 v Minister of Immigration and Border Protection [2017] FCA 72, [8]. Mr Mowatt, like Mr Splendido, has given clear instructions to those acting for him in this proceeding that he seeks to have his proceeding adjourned until after the decision in Falzon notwithstanding that he will remain in custody for an uncertain period of time. Instructions and circumstances may, however, change and the position of a litigant who is in custody can be monitored by the Court by listing it for mention. In this case the practitioners appearing for the parties consented to the same course as was adopted in Splendido, namely, that the proceeding be listed for mention after an interval of some months. Accordingly the proceeding will be fixed for mention on 17 October 2017 subject to the parties having leave for it to be relisted for mention or directions earlier if so advised in light of change in circumstances, instructions or the position of the parties with respect to the conduct of this proceeding. 9 Accordingly Mr Mowatt has leave to add to the grounds of his application as foreshadowed, the hearing on 6 June 2017 was vacated and the proceeding will be listed for mention on 17 October 2017. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.