SZQBN v Minister for Immigration and Citizenship

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1488 of 2012

JUDGE: COWDROY J DATE: 2 April 2013 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 22 June 2012 the High Court of Australia remitted these proceedings to this Court for rehearing. The proceedings arose as a result of the cancellation of the appellant's tourist visa by a delegate of the Minister for Immigration and Citizenship ('the Minister'). The decision to cancel such visa followed the appellant providing false information at an interview held between officers of the Minister's department and the appellant at Sydney Airport. The departmental officers however failed to provide information to the appellant. The provision of such information was mandatory, and the failure to do so is the crucial fact of this matter. It will be useful if the Court states the history of proceedings.

Proceedings before the Federal Magistrate 2 The appellant challenged the decision of the Minister before the Federal Magistrates Court ('FMC') by filing an application on 4 February 2011 claiming the following relief: 1. A WRIT OF CERTIORARI issue, quashing the decision of the delegate of the Respondent to cancel the Applicant's Subclass TR676 visa ("Decision"). 2. A DECLARATION issue, to the effect that the Applicant Subclass TR676 visa was not validly cancelled and remains in effect. 3. A writ of PROHIBITION issue, prohibiting the Respondent and his delegates, servants and agents from acting upon or giving effect to the Decision. 3 The appellant relied on the following grounds: 1. The delegate of the Respondent misconstrued and/or otherwise misapplied section 116 of the Migration Act and, in so doing, the Decision was vitiated by jurisdictional error. 2. Further and in the alternative, the delegate of the Respondent misconstrued and/or otherwise misapplied section 116 of the Migration Act and, in so doing, the Decision was vitiated by jurisdictional error. 3. Further and in the alternative, the delegate of the Respondent breached section 121(3)(b) of the Migration Act when providing a notice under section 9(1)(b) of the Migration Act which in the circumstances constituted jurisdictional error. 4. Further and in the alternative, the delegate of the Respondent failed to take into account a relevant consideration or relevant considerations in making the Decision, thereby committing jurisdictional error. 4 The respondent conceded that the Minister's decision was infected by jurisdictional error by a failure of the Minister to comply with the provision of information as required by s 120 of the Migration Act 1958 (Cth) ('the Act'): see SZQBN v Minister for Immigration and Citizenship [2011] FMCA 408 ('FMC Decision'). Section 120 states: Certain information must be given to visa holder (1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for cancelling a visa; and (b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and (c) was not given by the holder; and (d) was not disclosed to the holder in the notification under section 119. (2) The Minister must: (a) give particulars of the relevant information to the holder; and (b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and (c) invite the holder to comment on it. (3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances. 5 At the time of cancellation of the appellant's visa, the Minister held information that the appellant had intended to apply for protection in Australia using fraudulent documents: see FMC Decision at [9]. It was that allegation which was not provided to the appellant. Nicholls FM found that the issue to be determined was whether the Court should exercise its discretion to grant the relief sought in circumstances where the respondent has conceded jurisdictional error in the Minister's decision: see FMC Decision at [1], [10]. 6 His Honour determined that the Court should not exercise its discretion to grant relief on the basis that appellant had acted in bad faith in providing untruthful answers to questions asked by the Minister's officers. His Honour concluded at [145] that: In all, the delegate's decision to cancel the applicant's visa is affected by jurisdictional error as the Minister concedes. However the relief the applicant seeks is at the court's discretion. Bad faith on the part of the applicant is a basis on which such relief can be refused. I am satisfied that, on the evidence, the applicant acted in bad faith before the Minister's department. Ms Tong's evidence provides both the basis for, and the explanation of the applicant's conduct. In the circumstances it is appropriate that the applicant not be granted the relief which he may otherwise have been able to obtain. I will make an order dismissing the application on this basis.

The Federal Court Appeal 7 By Notice of Appeal dated 23 June 2011 filed in this Court ('first notice of appeal'), the appellant sought a writ of certiorari and a writ of prohibition based upon alleged errors by the determination of Nicholls FM. The grounds of appeal, with particulars omitted, were as follows: 1. The court below erred in holding that the appellant's alleged bad faith in falsifying his intention to be a genuine visitor to Australia was sufficient to deny him relief in circumstances where the Minister conceded that the decision to cancel his visitor's visa was infected by a breach of procedural fairness. 2. It was not open to the court below to find, to the requisite standard of proof, that the appellant had displayed bad faith in his dealings with officers of the Minister's Department. 8 The appeal to this Court was dismissed on the basis that the Court was 'unable to find any basis upon which the determination of the Federal Magistrate could be said to be erroneous, nor [was] there any jurisdictional error in the findings of the Federal Magistrate': see SZQBN v Minister for Immigration and Citizenship (2011) 123 ALD 539 ('FCA Decision') at [51].

The High Court Proceedings 9 The FCA Decision was the subject of an application for special leave to the High Court on 17 November 2011. 10 On 22 June 2012, the High Court by consent granted special leave, and allowed the appeal: see SZQBN v Minister for Immigration and Citizenship [2012] HCATrans 159 (22 June 2012). The error said to exist was that the finding that there was no jurisdictional error was too narrow. The High Court made the following consent orders: 1. Special leave be granted to appeal against the judgment of the Federal Court of Australia in SZQBN v Minister for Immigration and Citizenship [2011] FCA 1182. 2. Without prejudice to the other grounds of appeal raised in the draft notice of appeal, the appeal to this Court be allowed upon the ground that the jurisdiction of the Federal Court of Australia, in the appeal from the Federal Magistrates Court, is not limited to whether the federal magistrate made "jurisdictional error". 3. The orders of the Federal Court of Australia, made 20 October 2011, be set aside, and the matter be remitted to that Court for rehearing of the appeal from the Federal Magistrates Court. 4. The respondent pay the costs of the applicant in this Court as agreed or taxed. 5. Costs in the courts below be left for decision by the Federal Court of Australia. 6. The Federal Court also determine whether the applicant be allowed to run any ground not previously advanced by him in that court or in the Federal Magistrates Court.

Remittal to this Court 11 In accordance with consent order 3 of the High Court, the proceedings have been remitted for a rehearing of the appeal from the FMC. On 4 October 2012, the Registrar of this Court made orders for the future conduct of the appeal, and fixed a hearing date for 16 November 2012. However, on 9 November 2012 an interlocutory application was filed by the appellant seeking the following interlocutory orders: 1. The orders made by Registrar Tesoriero on 4 October 2012 be set aside. 2. The hearing listed for 16 November 2012 be vacated. 3. Leave be granted to the appellant to file an amended notice of appeal in the form annexed to the affidavit of Mariah Maltezos sworn 9 November 2012. 4. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth), direct that the appellate jurisdiction of the Court in relation to this appeal be exercised by a Full court. 5. The matter be listed for hearing before the Full Court with an estimate of one day. 6. Costs reserved. 12 This Court is presently concerned with the interlocutory application of the appellant filed in accordance with consent order 6 made by the High Court.

CURRENT APPLICATION 13 The appellant seeks leave to rely upon a draft notice of appeal ('the draft notice') which raises three grounds of appeal as follows: 1. The Federal Magistrates Court erred in holding that it had a discretion to refuse relief under s 75(v) of the Constitution for jurisdictional excess in circumstances where: (a) grounds have been established for the issue of a writ of habeas corpus; and (b) the only relevant conduct of the appellant occurred before the respondent had exceeded his jurisdiction. 2. Alternatively, in exercising its discretion to refuse relief the Federal Magistrates Court: (a) acted upon wrong principles, namely it: i. proceeded upon a misapprehension of the meaning of "bad faith"; ii. considered the merits of the issues that were before the delegate; and iii. acted other than in accordance with s 140 of the Evidence Act 1995; (b) allowed extraneous or irrelevant matters to guide or effect it, namely: i. conduct of the appellant which occurred before the respondent had exceeded his jurisdiction; ii. conduct of the appellant which had no immediate and necessary connection with, and did not bring into existence or induce, the delegate's decision to cancel his visa; and iii. the merits of the issues that were before the delegate; (c) mistook the facts, namely, that: i. answers given by the appellant to the delegate were inconsistent with the appellant's intention at the time that he gave them; and ii. the affidavit of Diana Tong dated 8 April 2011 was evidence of bad faith; (d) did not take into account material considerations, namely: i. the appellant's personal liberty was at stake; ii. after conceding that the delegate's decision involved jurisdictional error, the respondent did not cause the appellant to be released from detention; iii. the appellant's detention was, at the time of the hearing, unlawful; and iv. the matters contemplated by s 140(2) of the Evidence Act 1995 (Cth); (e) otherwise reached a result that was unreasonable or plainly unjust. 3. The Federal Magistrates Court erred in finding bad faith on the part of the appellant.

The appellant's primary submissions 14 Counsel for the appellant indicated at the interlocutory hearing that ground 2(e) would not be pressed. The appellant provided six reasons in support of its application for a grant of leave to rely upon the draft notice. Those reasons are as follows: (a) The factual circumstances of this case are exceptional. The appellant was deprived of his personal liberty as the result of a decision which the Minister conceded was unlawful. (b) The legal issues sought to be raised are also exceptional. The matter is wholly concerned with the issue of constitutional writs under s 75(v) of the Constitution. (i) The Minister's case rests on the proposition that "bad faith" may disentitle a person to relief in respect of future unlawful executive action. In other words: that the executive may act in ways which would otherwise be unlawful if the opinion is formed that a person has acted in bad faith. (ii) There is no authority for the proposition that a person may become disentitled to relief under s 75(v) of the Constitution in respect of the future unlawful exercise of executive power. That is the effect of the case put by the Minister. (iii) The above propositions have not been considered by either the High Court or the Full Federal Court and in the appellant's submission cannot be reconciled with the present learning on Ch III of the Constitution. (c) Each of the grounds sought to be raised has strong prospects of success. (d) There would be no prejudice to the Minister or to the administration of justice from a grant of leave, other than some further period of time being taken for submissions on the relevant principles of constitutional law, including by such Attorneys-General as may choose to intervene. (e) The consequences of refusing relief are grave, both to the appellant and to the administration of justice. (i) The finding that the appellant had engaged in "bad faith" was serious and operates as a 'black mark' on his departmental record. If the appellant's submissions are correct, he will be forced to live with that finding in circumstances where the federal magistrate's order was unconstitutional. (ii) The administration of justice will be hampered by a decision that effectively countenances as constitutional the steps that have been taken in this proceeding. The special circumstances presented by this case are a matter on which judicial officers require guidance from appellate courts. (f) There is a strong public interest in the hearing of these issues. The resolution of this matter will have an authoritative and influential effect on other matters of a similar kind, as well as on the practice of the Minister in future cases in which detainees are affected by executive action admitted to be unlawful.

The respondent's primary submissions 15 The respondent opposes the leave sought. In its primary submissions filed on 16 November 2011 the respondent stated that it would not object to the amended ground 2(c) on the basis that it overlapped with the grounds already included in the first notice of appeal. Its remaining submissions are summarised hereunder.

Concession made below (a) Grounds 1, 2(a)(i) , 2(b) and 3: The respondent argued that each of these grounds was founded on a contention that there could be no discretion to refuse relief that depended on actions of bad faith by the appellant before the decision maker. The respondent claimed that this contention was contrary to the way in which the appellant conducted its case before the Federal Magistrate, as is more fully considered hereunder.

Insufficient prospects of success (b) Grounds 1, 2(a), 2(b) and 3: The respondent argued that each of these grounds had insufficient prospects of success due to prior decisions of the High Court and the Full Court of this Court. The decisions referred to were the cases of SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, Minister for Immigration and Citizenship v Lu (2010) 189 FCR 525, SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170, and NAWZ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 199. (c) Ground 2(a)(ii): The respondent submits that this ground of appeal was exhausted before the Federal Magistrate. (d) Grounds 2(a)(iii) and 2(d)(iv): The respondent submits that the Federal Magistrate can not be said to have been unmindful of any of the three matters referred to by s 140(2) of the Evidence Act 1995 (Cth), namely the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged. The respondent also points out that no argument was put to his Honour that required him to expressly refer to the relevant statutory language in his judgment. (e) Grounds 2(d)(i)(ii) and (iii): The respondent submits that these grounds had insufficient prospect of success on the bases that it was not clear how the matters raised by the grounds were mandatory considerations for the Federal Magistrate, and that an order for prohibition would be of no practical use to the appellant.

Grounds too wide (f) Grounds 2(a)(i), 2(e) and 3: The respondent submitted that these grounds were too wide and general to justify the grant of leave.

No claim below (g) Ground 1: The respondent argued that there was no claim for habeas corpus before the Federal Magistrate.

CONSIDERATION 16 Usually a party will not be permitted to rely upon grounds of appeal which have not been the subject of appeal in the court below: see Suttor v Gundowda Proprietary Limited (1950) 81 CLR 418 at 438; Coulton v Holcombe (1986) 162 CLR 1 ('Coulton') at 7-9. As was stated by Mason P in Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 ('Multicon Engineering'): A party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial. 17 However it has been recognised in this Court that in 'exceptional circumstances' a new argument may be raised on appeal: see Reece v Webber (2011) 192 FCR 254 at [11]; Dart Industries Inc v DÉcor Corporation Pty Ltd (1989) 15 IPR 403 at 416. The appellant submits that exceptional circumstances exist in the present proceedings as '[t]he matter is wholly concerned with the issue of constitutional writs under s 75(v) of the Constitution'. The Court rejects this argument insofar as it asserts that merely because a question of the issue of constitutional writs arises, the Court must grant leave to appeal. In Multicon Engineering at 645, Mason P said: A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law. 18 Ultimately, whether leave should be granted depends upon whether it is 'expedient in the interests of justice to do so': see Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (ACN 0004 551 473) (2009) 254 ALR 198 at [27] ('Cadbury Schweppes'); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]; O'Brien v Komesaroff (1982) 150 CLR 310 at 319; Connecticut Fire Insurance Co. v Kavanagh (1892) AC 473 at 480. Factors relevant to this assessment include whether further evidence will be required to be adduced (see Coulton at 9) and whether the respondent will suffer prejudice should leave to amend be granted (see Cadbury Schweppes at [27]). 19 The first notice of appeal raised issues of bad faith by the appellant when answering questions from the Minister's departmental officers which ultimately led to the cancellation of the appellant's visa. However the first notice of appeal failed to address the critical question which is now contained in the draft notice, namely whether the finding of bad faith of the appellant was sufficient to disentitle the appellant to relief being the issue of writs of prohibition and certiorari. So considered, whilst the appellant's submissions are confusing, the ground now raised represents a different argument previously raised before this Court. 20 In Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409, Lee J stated at 416: Permission to amend the pleading and to take on appeal a point not taken at trial will depend on whether relevant facts have been determined beyond controversy or the question is one of construction of law and it is expedient and in the interests of justice that the point be decided. Leave to amend will not be granted where the effect of the amendment would be the presentation of a new or different case on appeal from that which emerged at trial. 21 The points sought to be raised by the appellant are of importance, focusing as they do upon the effect of a failure of the Minister to comply with a provision of the Act that exists to promote procedural fairness in the cancellation of a visa. Further, that no additional evidence would need to be tendered on the rehearing from the appellant and that the respondent would not suffer any relevant prejudice save as to costs, tends toward leave to amend the draft notice being granted. Whilst the respondent claims it would have adduced further evidence relating to any argument concerning the writ of habeas corpus, it is not apparent how any further evidence could impact upon the critical issue. The facts are confined to the events at Sydney Airport during the interview with the appellant. 22 The Court now refers to three discrete matters which were raised during submissions.

(a) The appellant's alleged concession in the court below 23 Before the Federal Magistrate the question arose whether the appellant was asserting that where jurisdictional error exists in an administrative decision, the Court has no discretion to deny the relief sought. Such proposition was expressly disavowed by the appellant. The following exchange took place between his Honour and counsel for the appellant: HIS HONOUR: Are you seeking here to say that, really, when an administrative decision is revealed to have jurisdictional error, the court has no discretion and must grant the relief? MR REYNOLDS [COUNSEL FOR THE APPELLANT]: No, your Honour. 24 The respondent submits that this constitutes a concession that disentitles the appellant from relying upon ground 1 in the draft notice. The respondent relies upon the decision in Li Pei Ye v Crown Ltd [2004] FCAFC 8, in which the Court found at [75] that where a party is represented by experienced counsel and a concession is made at first instance, and an appellant seeks to resile from such concession on an appeal, the Court would need evidence to justify why the concession had been made in the lower court. 25 However the issue which the appellant articulates in ground 1 of the draft notice differs from the proposition put to the appellant by the Federal Magistrate. The appellant seeks to submit that no discretion arises in specific circumstances, those circumstances being where grounds for a writ of habeas corpus exist. This issue was not raised directly before the Federal Magistrate.

(b) Insufficient prospects of success 26 The Court notes that the submissions of both parties concentrated extensively upon whether the proposed grounds of appeal have sufficient prospects of success. Whilst these submissions have been of assistance, the Court must be guided by the overall principle that at this preliminary stage it is not appropriate for the Court to form any conclusive view as to the likely outcome of any appeal. As Besanko J stated in Hamden v Secretary, Department of Human Services [2013] FCA 3 at [40] in relation to an application for extension of time made under r 31.02 of the Federal Court Rules 2011 (Cth): As far as the merits of the substantive application are concerned, it is not for the court to determine the application at this stage. However, an extension of time should not be granted if the substantive application is not reasonably arguable. Furthermore, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be a relevant consideration depending on the nature of the other factors (for example, the period of the delay and the explanation for it) relevant to the application for an extension of time. 27 Although the present application is not one for an extension of time to review a decision made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) as was considered by Besanko J, similar considerations arise. 28 The proposed ground 1 requires consideration as to whether it is reasonably arguable. The course the appellant now seeks to adopt may be due to the appellant's failure to apply for a writ of habeas corpus before the FMC. Even if the grounds for such writ were made out in the evidence before the court below, the writ itself is not issued as of course. In Antunovic v Dawson (2010) 30 VR 355 at [129]-[130] ('Antunovic'), Bell J stated: The writ of habeas corpus, although grantable ex debito justitiae, 'does not issue as of course' (see R v Langdon; Ex parte Langdon (1953) 88 CLR 158 at 161). A remedy ex debito justitiae is 'a remedy to which the applicant is entitled as of right', as distinct from a discretionary remedy (John Burke (ed) Jowitts Dictionary of English Law (2nd ed, 1977) Vol 1, 731). … The nature of habeas corpus as a writ available as of right, but not of course, was explained in Opinion on the Writ of Habeas Corpus (1758) 97 ER 29. Wilmot J said at common law the writ did not issue as of course 'but upon probable cause being shown' (at [32]). When that cause was shown, the writ was issued as of "right", indeed as of "birthright", to the applicant (at [33]). The procedure for showing cause was 'not a check upon justice, but a wise and prudent direction of it' (at [33]). (Footnotes inserted as references). 29 In the Opinion on the Writ of Habeas Corpus (1802) Wilm 77; (1758) 97 ER 29, Wilmot J at [33] found in reference to a class of writs, including that of habeas corpus, that 'a proper case must be laid before the Court by affidavit, before the parties, praying such writs, may be entitled to them'. Similarly, in Wall v R; Ex parte King Won and Wah On (No 1) (1927) 39 CLR 245, Isaacs J said at [256] that a writ of habeas corpus was 'not a writ of course, though a writ of right. It had to be moved for, and a proper case made out'. 30 The appellant specifically does not seek the issue of a writ of habeas corpus, nor was such writ sought in the court below. Rather, the appellant claims that having established the grounds for the issue of such writ before the Federal Magistrate, it is entitled to relief in the nature of prohibition and certiorari. 31 Should an application for a writ of habeas corpus have been made in the lower court, and provided that the grounds for such writ were made out, there would have been no discretion for the Federal Magistrate to have refused the relief: see Ruddock v Vadarlis (2001) 110 FCR 491 at [91]; Antunovic at [132]; Murray v Director General, Health and Community Services and Superintendent, Larundel Psychiatric Hospital (Unreported, Supreme Court of Victoria, Eames J, 23 June 1995). 32 The Court is mindful of a class of decisions referred to by the respondent, namely MIAC v Lu, SZLHP v MIAC and NAWZ v MIAC. Each of these cases confirms the general principle that a grant of constitutional writs is a matter for discretion: see also SZBYR at [28]. However, these decisions do not concern relief sought on the basis of a writ of habeas corpus. 33 Further, the Court notes that the proposed ground, if established, is one which could affect not merely the rights of the parties, but would be of importance to the future conduct of the state in detaining persons pursuant to the Act. In this respect, 'the outcome of the case necessarily involves interests wider than the individual interests of the parties': see Nguyen v Minister for Immigration, Local Government and Ethnic Affairs (1996) 66 FCR 239 at 244. 34 For the above reasons, the Court will grant leave to the appellant to rely on ground 1 of the draft notice. 35 Ground 2(a) to 2(d) contained in the draft notice may be relevant to the appellant's argument as to ground 1. It may be necessary for the appellant to refer to the matters in ground 2 in order to attempt to make out ground 1 even though ground 2 is pleaded only in the alternative. The conduct of the appellant which gave rise to the Federal Magistrate's finding of bad faith are the same for grounds 1 and 2.

(c) Grounds too wide 36 The respondent argues that proposed grounds 2(a)(i) and 3 are too wide. 37 With respect to proposed ground 2(a)(i), the Court is satisfied that the appellant's answers to the request for particulars by the respondent sufficiently outlines the scope of the argument that the appellant seeks to raise. 38 The wording of ground 3 prima facie suggests a challenge to the finding of fact by the Federal Magistrate that the appellant engaged in bad faith. A finding of fact may not be challenged on appeal to this Court: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40-42; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. However, this ground was included in slightly different terminology as ground 2 in the first notice of appeal. As the same issue is being raised as ground 3 in the draft notice, the Court will grant leave to rely on ground 3 in the draft notice. 39 Accordingly, in accordance with these reasons, the Court grants leave to the appellant to rely on the grounds contained in the draft notice, save for ground 2(e).

REFERENCE TO THE FULL COURT 40 The next issue raises the question of whether the matter should now be referred to the Full Bench for determination pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). The Court is satisfied that because of the challenges sought to be raised by the appellant it is appropriate that this appeal be referred to the Full Court for the determination of the issues raised by grounds 1, 2 (excluding 2(e)) and 3 of the draft notice. 41 The Court makes orders accordingly. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.