Federal Court. Can the Tribunal determine for itself that it will not comply with a court order until it is known whether such an order is overturned by a higher court?
The relevant sequence of events was as follows:
On 7 August 2020, the Federal Court (FCA) granted relief to the Applicant in the following terms (August 2020 orders):
1. The decision of the second respondent made on 12 November 2019 affirming the decision of the first respondent not to revoke the cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return visa is quashed.
2. The first respondent, whether by his officers, servants, agents or delegates be restrained from acting on the basis that the decision of the second respondent made on 12 November 2019 was a valid decision.
3. The second respondent, differently constituted is to determine the applicant’s application for review under s 500 of the Migration Act 1958 (Cth) in accordance with the law.
4. The first respondent is to pay the applicant’s costs of the originating application.
2. On 23 August 2021, the Full Court of the FCA (FCAFC) dismissed the Minister's appeal with the consequence that the August 2020 orders remained undisturbed.
3. On 20 September 2021, the Minister filed an application in the High Court for special leave to appeal from the judgment of the FCAFC. The High Court has stood over the Minister’s special leave application pending the delivery of judgment in a special case arising in its original jurisdiction: Plaintiff M1/2021 v Minister for Home Affairs (Action No M1/2021).
According to the FCA:
5 Neither the Minister nor the Tribunal applied for a stay of the August 2020 orders pending the outcome of the appeal to the Full Court. Nor has there been any application for a stay pending the outcome of the special leave application ...
18 In accordance with s 38(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) the practice and procedure of this Court shall be in accordance with the Federal Court Rules 2011 (Cth), subject to any practice and procedure provision made by or under the FCA Act. Section 38(2) of the FCA Act provides:
(2) In so far as the provisions for the time being applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.
19 Rule 25.13.4 of the High Court Rules 2004 (Cth) provides:
25.13 Writ of mandamus
25.13.4 Unless otherwise ordered by the Court or a Justice, a writ of mandamus must be returnable within 14 days from service of the writ.
From 12 November 2020 until after the FCAFC decision, the Applicant made several requests for the Tribunal to re-determine his case as per the FCA orders dated 7 August 2020. Despite those requests, the Tribunal refused to re-determine the Applicant's case, saying that it would be a "colossal waste of time" to do so before the application for special leave and a subsequent appeal was decided, as they could be decided in the Minister’s favour.
The reason given by the Tribunal for not re-determining the Applicant's case between the delivery of the FCA decision and the delivery of the FCAFC decision was s 29 of the FCA Act, which provided as follows:
(1) Where an appeal to the Court from another court has been instituted:
(a) the Court or a Judge, or a judge of that other court (not being the Federal Circuit and Family Court of Australia (Division 2) or a court of summary jurisdiction), may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from; and
(b) the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.
(2) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the stay of proceedings.
On 18 November 2021, the applicant filed an interlocutory application in the FCA, which is the subject of the decision extracted below, for orders in the following terms:
2. An order requiring the Second Respondent to comply with Order 3 of the Orders made by the Honourable Justice Charlesworthon 7 August 2020 on or before [a date not more than 42 days after the date of this order].
3. Further or in the alternative:
a. an order requiring the Second Respondent to make a return to the Court in relation to Order No 3 of the Orders made by the Honourable Justice Charlesworth on 7 August 2020 as if a writ of mandamus had issued which required the Second Respondent to determine the application for review of the decision of the delegate of the First Respondent dated 19 August 2019 in accordance with the law or show cause why it has not been done; and
b. an order fixing, as the date by which the return referred to in Order 3(a) must be made, [a date not more than 42 days after the date of this order].
4. Such further or different order(s) as the Court thinks fit, to enforce, and/or require the Second Respondent to comply with, Order No 3 of the Orders made by the Honourable Justice Charlesworth on 7 August 2020.
5. The First Respondent and/or the Second Respondent are to pay the Applicant’s costs of the application.
Some of the questions to the FCA were as follows:
Question 1: In the absence of a stay, did the August 2020 orders remain operative?
Question 2: Was the Tribunal's reference to s 29 of the FCA Act as allowing it to "suspend its own review functions in circumstances where it has been ordered to perform them" inapt, as that provision refers only to a court staying proceedings and as the Tribunal is not a court?
Question 3: Can it be said that, "following delivery of the Full Court’s judgment, [the Applicant's] request for (at least) a directions hearing ought to have been attended to as a matter of priority" and that "a delay of more than two months before even a directions hearing was set down is unsatisfactory by any measure, given that one of the purposes of the hearing was to hear the applicant’s concerns about the delay of the review on his personal liberty"?
Question 3: Does an appeal to the FCAFC operate as a stay of execution of the orders under appeal?
Question 4: Does an application for special leave to the High Court operate as a stay of execution of the orders of the FCAFC?
Question 5: Can it be said that "the principles guiding the discretion of a court to grant a stay of its orders (or the orders of another court) have no direct application here", as the FCA does not have any stay application before it, but rather "an application for relief founded upon an allegation that a party to this proceeding has not complied with an order of the Court that has not been stayed"?
Question 6: If the answer to Question 5 is 'yes', does it follow that, "had there been an application for a stay of the August 2020 orders, the Court may well have weighed in the balance considerations affecting the resources of the Tribunal, among other things"?
Question 7: Does the outcome of this interlocutory application "depend on the categorisation of the order in paragraph 3 [of the August 2020 orders] as an order in the nature of mandamus or an order in the nature of a mandatory injunction or otherwise"?
Question 8: As the order in paragraph 3 of the August 2020 orders did not fix a time for compliance, does that mean that a finding of non-compliance cannot be made?
Question 9: Could the Tribunal determine for itself that it would not comply with a court order until it is known whether it will be overturned by a higher court?
Question 10: Is it "necessary for the Tribunal to actively participate in the proceeding in order for its interests as an institution having important functions under the Migration Act to be properly considered in the exercise of this Court’s powers"?
Question 11: If the answer to Question 9 is 'no', what remedies (if any) should the Applicant be granted?
The FCA answered those questions as follows:
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