RJFB v Minister for Immigration and Multicultural Affairs [2025] FCA 229

1. By his Amended Originating Application filed on 22 August 2024, the applicant seeks a writ of certiorari quashing the Minister's decision and a writ of mandamus directing the Minister to determine whether to exercise the power under s 501A(2) in accordance with law, on three grounds:
   1. The Respondent's decision dated 4 October 2023 is affected by jurisdictional error as the Respondent failed to squarely and honestly confront the human consequences of the exercise of the refusal power conferred by s 501A(2) of the Act.
   2. The Respondent's decision dated 4 October 2023 is affected by jurisdictional error as the Respondent failed to properly consider relevant material, being the video recording of the assault of the Applicant in immigration detention occurring on about 12 March 2023.
   3. The Respondent's decision dated 4 October 2023 is affected by jurisdictional error as the Respondent misapprehended the legal consequences of their decision.
2. At the hearing before this Court, and as was foreshadowed in written submissions, the applicant pressed only the third ground. The gravamen of this ground is that the respondent, in making his decision, proceeded on the belief that in accordance with the law as then understood (i.e. in accordance with Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562), the applicant faced the prospect of indefinite detention, when as the High Court subsequently made clear in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 at [70], ss 189 and 196 of the Migration Act did not authorise the continuing detention of unlawful non-citizens where there was no real prospect of their removal becoming practicable in the reasonably foreseeable future.
3. The Minister accepted that his decision proceeded on an incorrect understanding of the law. In his written submissions, the Minister sought to argue that such an error was not a jurisdictional error having regard to both the nature of the error and on the premise that it was not material. In oral submissions, Counsel for the Minister quite properly conceded that neither basis for asserting that the error was not jurisdictional was open, given the decision of the Full Court in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586, which is essentially on all fours with the present case and so by which I am bound. The Minister did not apply for special leave to appeal to the High Court from that decision, nor did he submit that the decision was plainly wrong.
4. In AJN23, the Full Court held, at [43], that where the Minister's reasons proceeded on an erroneous understanding of the law, "his decision was made outside the jurisdiction conferred on him by s 501A(2), provided that the error was material". As to materiality, in response to submissions that the decision could not realistically have been any different even absent the error given first, that the error was in the appellant's favour and secondly, that the Minister was clearly concerned to keep the appellant out of the community so that there was no realistic possibility that the Minister would have granted a visa, the Full Court said, at [51]:

Once an important underpinning of the decision in relation to several elements is fundamentally altered, it is simply not possible to have confidence in what the outcome would have been; it cannot "be affirmatively concluded that the outcome would inevitably have been the same had the error not been made" [citing LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [16]].

1. Having made the appropriate concession as to the consequence of AJN23, the Minister nevertheless urged that I should exercise my discretion not to grant the constitutional writs sought by the applicant. Four reasons were advanced in support of that submission.
2. First, that the applicant's case before the Minister was founded on the premise that Al-Kateb correctly represented the law and that the Minister should apply such law in making his decision. Secondly, that Al-Kateb being re-opened and overruled by the High Court in NZYQ was "unknown, and unknowable, to the Minister" at the time of making his decision (using the words of the Full Court in AJN23 at [30]). Thirdly, that the applicant's position is unjust and inconsistent, in the sense that he was able to procure a favourable s 501(1) decision from the Tribunal on the very basis that he now contends the Minister was in error to accept. Fourthly, that accepting the applicant's position may prejudice a third party, namely the Tribunal, as it would mean that the Tribunal's decision might be liable to be set aside for jurisdictional error.
3. The Minister relied on the decision of the High Court in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 for the proposition that the grant of a constitutional writ is discretionary. So much may be accepted. However, the guidance for the exercise of that discretion, to which the Minister also drew attention, does not assist him in this case. Gaudron and Gummow JJ in that case observed the following:

[56] Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:

"For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."

[57] When dealing apparently with certiorari and declarations, Lord Denning MR in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry said:

"He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing. If his conduct has been disgraceful and he has in fact suffered no injustice, he may be refused relief."

1. It would be an extraordinary proposition to exercise the Court's discretion against an applicant in circumstances where he has, at all times, conducted himself in accordance with an understanding of the law as it stood from 2004 until 28 November 2023, approximately eight weeks after the Minister's decision in this case. There is no doubt, as the Minister submits, that the applicant procured a favourable s 501(1) decision on the basis of a legal argument that he now contends the Tribunal was in error to accept, whilst at the same time, seeking to utilise that very same error to impugn the Minister's s 501A(2) decision. But that is not a consequence of a change of position over which the applicant, or indeed the Minister, had any control. The law has been clarified by the High Court. The law that must be applied is different from that which governed the conduct of the applicant and the Minister in relation to the Minister's consideration of whether to grant the applicant a visa up until 28 November 2023.
2. Further, I am not persuaded that there is merit to the Minister's submission that I should exercise my discretion to refuse the relief sought because the Tribunal's decision might be liable to be set aside for jurisdictional error. That decision was also premised on the, as now understood, incorrect view of the law. There can be no prejudice to the Tribunal.

1. For these reasons, the applicant is entitled to succeed on his application and to be granted the relief sought. It is also appropriate that the Minister pay the applicant's costs, particularly given the inevitability of the concession that had to be made in relation to AJN23.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.