AAT grants visa; FCA confirms it can issue habeas corpus

A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs found that the First Respondent (the "Respondent" for the purposes of this article) satisfied all the criteria that the delegate considered to be relevant for a protection visa application, except for s 501(1) of the Migration Act 1958 (Cth), and purported to refuse to grant him a visa on that basis.

The Respondent applied to the Administrative Appeals Tribunal for merits review of the delegate's decision. After the delegate's decision was made, but before the Tribunal made its own decision, the Federal Court (Rares J) handed down its decision in BAL19, where his Honour held, among other things, that s 501(1) did not apply to protection visa applications.

Putting s 501(1) to one side, the Minister conceded before the Tribunal that all relevant criteria had been satisfied. As a result, the Tribunal was bound to set aside the delegate's decision. The only question to the Tribunal was whether it should remit the matter to the Department for reconsideration or whether it should grant the Respondent a visa.

The Minister made 3 arguments to the Tribunal, as follows:

1. The case officer who made the decision based on s 501(1) had only been delegated power for the purposes of that provision, not for the purposes of 65 of the Migration Act. Subsection 43(1) of the AAT Act, which provided that the Tribunal has all the powers of the "person" who made the original decision refers to the specific individual who made that decision, not to the Minister. Therefore, as the case officer who made the decision based on s 501(1) had not been delegated power under s 65, the Tribunal did not have the power to make a decision under s 65 to grant the Respondent a visa.
2. The Tribunal's jurisdiction to conduct a review arose from s 500(1)(b) of the Migration Act, which provided that "Applications may be made to the Administrative Appeals Tribunal for review of ... decisions of a delegate of the Minister under section 501...".  As a result, the Tribunal "did not have any authority to exercise any powers outside section 501", including authority to exercise the power to grant a visa under s 65 of the Migration Act.
3. The Tribunal’s power to substitute a new decision did not “extend in law to a decision that a visa be granted”. According to the FCA, "[t]hat submission was apparently based on what was said to be the Tribunal’s “universal practice” in the Migration and Refugee Division of the Tribunal. The Tribunal held that, even if that practice did exist, it did not provide any reason for limiting the Tribunal’s powers under s 43 of the AAT Act".

The Tribunal decided to set aside the delegate's decision and granted the Respondent a visa.

The Minister applied to the FCA for judicial review of the Tribunal's decision immediately after it was made.

The relief sought by the Minister included (emphasis in the original):

1. Certiorari issue to quash the decision of the second respondent (AAT) dated 11 March 2020. 
2. Mandamus issue to the AAT (differently constituted) to hear and determine the first respondent’s application for review of a decision made by a delegate of the applicant (Minister) under section 501(1) of the Migration Act 1958 (Cth) (Migration Act) according to law. 

The Minister's ground of application was as follows:

1. In AAT proceedings 2019/8709, the AAT erred by purporting to grant the first respondent a Safe Haven Enterprise (Class XE) visa (Visa) when it had no jurisdiction to do so. 

Particulars 

a. The AAT’s jurisdiction had been invoked by the first respondent under s 500(1)(b) of the Migration Act to review a decision by a delegate of the Minister that the applicant did not satisfy the “character test” in s 501 of the Migration Act and to thus refuse him the Visa under s 501(1). 

b. Section 500(1)(b) of the Migration Act only confers jurisdiction on the AAT “… for review of ... decisions of a delegate of the Minister under section 501 (subject to subsection (4A))”. 

c. Accordingly, the scope of the AAT’s jurisdiction to review the delegate’s decision was confined to the decision which had been made under s 501(1) of the Migration Act. 

d. The Minister’s power to grant any visa is separate to s 501 and is contained in s 65 of the Migration Act and no decision had been made by the Minister (or his delegates) with respect to all the other matters required to be addressed in s 65.

Despite the visa grant by the Tribunal, the Minister kept the Respondent in immigration detention after the grant.

In addition, the Minister made an application for interlocutory application, seeking that the hearing of his application for judicial review be expedited. As described by the FCA, "[t]he Minister also sought an order that the application for interlocutory relief be heard instanter".

The Respondent, who was still in immigration detention, then made an interlocutory application, seeking orders that included the following:

1.    There issue a writ of habeas corpus directed to the applicant, requiring it to release the first respondent from immigration detention forthwith.

2.    In the alternative to order 1, an order in the nature of a writ of habeas corpus directed to the applicant, requiring it to release the first respondent from immigration detention forthwith.

3.    In the alternative to orders 1-2, there issue a writ of mandamus directed to the applicant, requiring it to release the first respondent from immigration detention forthwith.

The questions to the FCA were as follows:

Question 1: Should the FCA expedite the hearing of the Minister's judicial review application, on the basis that "there was a risk that other Tribunal members might follow the Tribunal’s decision in this matter and that that could have “quite significant” practical consequences"?

Question 2: Did the FCA have jurisdiction to entertain the Respondent's interlocutory application?

Question 3: Did the FCA have the power to issue the writs sought in the Respondent's interlocutory application, "whether it be considered to be an application for a writ of habeas corpus, an action in the nature of habeas corpus, an action for injunctive relief against an officer of the Commonwealth, or an action in respect of a matter arising under the Migration Act"?

Question 4: Was the Respondent unlawfully detained after the grant of his visa by the Tribunal?

Question 5: If the Minister's arguments to the effect that the Tribunal's decision was vitiated with jurisdictional error were considered by the FCA at the time of its hearing of the interlocutory applications to be extremely strong, did that justify the Respondent's continued detention following the visa grant?

The FCA answered those questions as follows: