“Minister has acted unlawfully”

Federal Court: “The Minister has acted unlawfully. His actions have unlawfully deprived a person of his liberty. His conduct exposes him to both civil and potentially criminal sanctions, not limited to a proceeding for contempt. In the absence of explanation, the Minister has engaged in conduct which can only be described as criminal”.

To avoid doubt, we are not expressing an opinion on the conduct of anyone, including the Minister, nor an opinion on the judgement itself.

The Minister’s delegate refused to grant the respondent (PDWL – a pseudonym) a protection visa under s 501 of the Migration Act 1958 (Cth), after which the Federal Court (FCA) decided in BAL19 that s 501 did not apply to protection visa applicants.

PDWL applied to the Tribunal for merits review. The Tribunal found itself bound by BAL19 and granted PDWL a protection visa, as the Minister had conceded in Tribunal proceedings (General Division) that all other relevant criteria for the grant of the visa had been satisfied.

However, the Minister kept the respondent in immigration detention, despite the fact that he had been granted a visa by the Tribunal.

The Minister then applied to the FCA for judicial review of the Tribunal’s decision. PDWL then engaged Northam Lawyers to make an interlocutory application to the same court on his behalf, seeking his immediate release from immigration detention. The lawyers representing PDWL at Northam Lawyers were Sergio Zanotti Stagliorio (who had carriage of the matter) and principal lawyer Mark Northam.

The FCA held in interlocutory proceedings in March 2020 that the Minister’s conduct was “disgraceful” and ordered the immediate release of PDWL from immigration detention.

The main proceedings (i.e. the judicial review application itself) were then heard by the FCA, before which the Minister argued as follows:

  • Ground 1: BAL19 was wrongly decided, which meant that the Tribunal made a jurisdictional error, despite the fact that BAL19 represented the law at the time the Tribunal made its decision;
  • Ground 2: as the delegate made a decision under s 501, the Tribunal was limited to assessing that provision and did not have authority to make a decision under s 65 granting a visa.

Before the FCA made a decision, the Full Court of the FCA (FCAFC) held in KDSP and BFW20 that BAL19 had been wrongly decided.

The FCA held as follows:

  • Ground 1: Even if a body such as the Administrative Appeals Tribunal, in making an administrative decision, correctly applies the law as then interpreted by a court (such as the Tribunal did in applying BAL19), that administrative decision might be retrospectively invalid if a higher court subsequently overturns that interpretation;
  • Ground 2: As the delegate made a decision under s 501, the Tribunal was limited to assessing that provision and did not have authority to make a decision under s 65 granting a visa. However, his Honour only expressed that as a tentative conclusion, given that it was unnecessary to determine Ground 2, as Ground 1 was sufficient to establish jurisdictional error;
  • Discretion: Although the Minister was successful in establishing jurisdictional error, he should not be entitled to any remedies/relief, because the Minister engaged in “unlawful conduct”.


Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 1354

Court: Federal Court of Australia


Respondents: PDWL; AAT

Judgement (for the Respondents): Flick J

[Ground 1]

19. Given the decisions of the Full Courts in KDSP and BFW20, there can equally be no doubt that the reasoning in BAL19 and the construction of the Migration Act there embraced, has been held to be erroneous. At the time the Tribunal made its decision, however, the decision in BAL19 represented the then state of the law and both the Minister (and his delegates) and the Tribunal were bound to follow that decision: cf. AFX17 [2020] FCA 807at [28] per Flick J. Although the Tribunal was thus required to follow the decision in BAL19, the effect of the decisions of the Full Court in KDSP and BFW20 was that the 2014 amendments to the Migration Act (and in particular s 36(1C)) were “to be regarded as having the construction found by the [Full Courts] from the time [they were] first enacted, because that construction does not operate only with prospective effect”: cf. Minister for Industrial Relations (Vic) v Esso Australia Pty Ltd [2019] FCAFC 26 at [45], (2019) 268 FCR 520 at 532 per White, Lee and Wheelahan JJ (“Minister for Industrial Relations v Esso Australia”).

20    But all of this, with respect, can potentially be placed to one side.

21    If attention remains confined to the review of the delegate’s decision made pursuant to s 501, and assuming for present purposes that Ground 2 prevails such that it was s 501 which “marked the boundaries” of the Tribunal’s powers, the Tribunal simply failed to give any consideration to the manner in which the discretion conferred by s 501(1) was to be exercised. Rather than directing any attention to the exercise of that discretion, it directed its attention to the manner in which the powers conferred by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“Administrative Appeals Tribunal Act”) should be exercised. Expressed differently, it failed to exercise the jurisdiction entrusted to it by s 500(1)(b) of the Migration Act.

22    Irrespective of the merits of Ground 2, however, it is concluded that the Tribunal erred. Following the decisions in KDSP and BFW20, s 501(1) was an available source of power to refuse to grant a protection visa. By simply acting upon the agreement between the parties, the Tribunal thus acted upon an erroneous view of the law – as it is now settled by the decisions of the Full Court – and failed to give any consideration to whether the visa ultimately granted to PDWL should be refused pursuant to s 501(1).

23    The question remains as to whether that error was jurisdictional or merely an error within jurisdiction.

28    Both of the decisions in ProBuild and Hossain referred (in part) to statutory provisions which required “conditions” as to the exercise of a statutory power to be satisfied. Assuming for present purposes that Ground 2 does not prevail, any consideration of the discretion conferred by s 501 is not expressly stated to be either a condition as to the exercise by the Tribunal of its powers of review or a limitation upon the Tribunal’s powers more generally expressed.

29    It is nevertheless concluded that a correct understanding by the Tribunal of the ambit of the matters that could be taken into account when exercising the discretion to grant or refuse a protection visa, including the discretionary power conferred by s 501(1), went to the jurisdiction being exercised. In failing to give consideration to s 501(1), the Tribunal both:

  • failed to approach the exercise of the discretion to grant a visa upon the basis that s 501 was a basis upon which a visa could be refused; and
  • only partially exercised the jurisdiction entrusted to it.

A complete discharge by the Tribunal of the jurisdiction being exercised required it to address the manner of exercise of the discretion there conferred. An exercise of the discretion, be it legally or factually right or wrong, would be an error within jurisdiction; but a failure to address the discretion at all is for the Tribunal to embark upon the exercise of its jurisdiction but to fail to complete that task.

30    On the facts of the present case, review by the Tribunal was sought of the delegate’s decision. By reason of the agreement between the parties that the decision in BAL19 required the Tribunal to set aside the delegate’s decision, a question never considered by the Tribunal – and a matter to which it never directed its attention – was whether the setting aside of the delegate’s decision was the “correct or preferable” decision in respect to s 501: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J. The Tribunal only considered the question as to whether the matter should be remitted to the Respondent for further consideration or whether it should “substitute a new decision on the visa application”: [2020] AATA 485 at [2]. And that question was resolved by reference to (inter alia) whether PDWL “has satisfied the valid criteria specified under the Regulations” and whether “the Applicant has signed a values statement (PIC 4019), has passed a health examination (cl 790.222 and 790.223), and has received a security clearance (PIC 4019)”: [2020] AATA 485 at [28]. In so proceeding, the Tribunal failed to consider the merits of the delegate’s decision as to whether by reason of the fact that PDWL had failed to satisfy the “character test” set forth in s 501(6) of the Migration Act, PDWL should be refused a visa pursuant to the discretion conferred by s 501(1).

31    This failure to consider a matter as fundamental to the administration of the Migration Act in the present context as to whether the discretion conferred by s 501(1) should be exercised in any particular manner is, with respect, jurisdictional. A matter so fundamental to a proper discharge of the jurisdiction entrusted to the Tribunal when considering the grant or refusal of a protection visa is, if necessary, to be construed as an “implied condition” (Hossain at [29]). Even if it is suspected that the Tribunal may well have reached a conclusion favourable to PDWL, the failure to consider that matter constituted jurisdictional error. Presumably the Tribunal, given its ultimate decision, would have exercised the discretion conferred by s 501(1) in a manner favourable to PDWL. But it never directed its mind to the exercise of this discretion. Implicit in the Tribunal’s decision, but a matter never expressly addressed, is the conclusion that the discretion conferred by s 501(1) should not be exercised so as to “refuse to grant a visa” to PDWL, thereafter leaving it open to the Tribunal to consider what decision should in fact be made. It was this latter task the Tribunal exclusively pursued. The failure to consider s 501(1) nevertheless remained a matter “material” to the decision to be made (Hossain at [30]).

32    Irrespective of this approach to the decision-making task, in exercising the discretion as to what the “correct or preferable decision” should be, the Tribunal fell into further jurisdictional error in approaching that exercise of discretion on the erroneous reasoning in BAL19.

33    Ground 1 of the Amended Originating Application is thus made out.

[Ground 2]

45    Although unnecessary to reach a final conclusion, a tentative view is expressed that the argument of the Minister would most likely prevail.

46    The jurisdiction which is vested in the Tribunal by s 500(1)(b) of the Migration Act is the jurisdiction to review “decisions … under section 501”. It is that provision which “marks the boundaries of the AAT review”: cf. Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, (2019) 266 CLR 250 at 271. Bell, Gageler, Gordon and Edelman JJ there concluded:

[51]    … The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.

(footnote omitted).

See also: [2019] HCA 16 at [14] to [15], (2019) 266 CLR at 256-258 per Kiefel CJ, Keane and Nettle JJ.

47    When exercising the jurisdiction conferred by s 500(1)(b) the Tribunal was thus clothed with all of the powers and discretions ofthe delegate as the original decision-maker, being powers confined by s 501(1). No decision was made by the delegate and no decision was sought to be reviewed by PDWL of any decision made (for example) pursuant to s 65 of the Migration Act.

48    If this be correct, the Tribunal would have erred in concluding that “the Tribunal’s jurisdiction extends in this case to a decision that the protection visa be granted provided that it is taken for the purpose of reviewing the decision under review”: [2020] AATA 485 at [24]. In reaching this conclusion, the Tribunal considered it “important to bear in mind that what was refused under s 501 was an application for a specific visa”. The difficulty with this conclusion is that it focusses upon what was sought by PDWL rather than the decision under review. That decision, as the Minister contends, cannot be characterised as anything other than a decision made under s 501; it is not a decision (for example) refusing a visa pursuant to s 65. Separate provision for Tribunal review of such decisions, it may be noted, is provided for in Pts 5 and 7 of the Migration Act.

49    Separate from any reliance placed upon the statutory source of the authority to make the decision being found in s 501 and the identification of such a decision as the decision for which Tribunal review is sought, it would be a curious construction of the Act if the constraints upon the exercise of the review function found in both Pts 5 and 7 could be by-passed by seeking review under s 500;ss 500 and 501 being found within Pt 9.

50    Assuming that the Minister’s argument has some merit, and further assuming that it could prevail, it would follow that the Tribunal had no power to order the grant of a visa to PDWL. The only power that could be exercised by the Tribunal, given the statutory definition of the “character test” (s 501(6)), was the exercise of the discretion conferred by s 501(1) to “refuse to grant a visa…”.

51    The second Ground of review, making these assumptions, could provide a yet further reason to quash the decision of the Tribunal, as a decision made in excess of power or possibly in excess of jurisdiction.

52    It remains, however, unnecessary to express any concluded view as to the merits of the Minister’s argument in respect to the second Ground.

73    The second Ground of review, it has tentatively been concluded has some merit.


61    Clearly enough, at least two matters assumed importance to the reasoning of Wigney J, namely:

  • the fact that PDWL had not been released from detention simply because, as his Honour so found, “the Minister did not like the Tribunal’s decision”; and
  • the failure on the part of the Minister to file any affidavit complying with the order made by Perry J to explain “why he is still in immigration detention”.

The persistence in submissions now made to this Court as to the failure to explain only invites further concern as to the lack of integrity in the decision-making processes of the Minister. The submission now made on the Minister’s behalf is that it is “thus not apparent how the affidavit could say more than it did, without disclosing the tenor of legal advice and risking a waiver of privilege in that advice”. That submission is rejected and for the same reasons as were provided by Wigney J. The filing of an Originating Application seeking review of the Tribunal’s decision did not operate as a stay of the decision that the delegate’s decision be set aside and the decision that PDWL “be granted a safe haven enterprise visa”: [2020] AATA 485 at [36]. In the absence of an order deferring the coming into effect of that decision or an order otherwise staying that decision, it was a decision that required compliance. The only advice that could potentially have founded a basis for the non-compliance with that decision by the Minister, was advice that the Minister need not comply with that decision by reason of (inter alia) it being a decision made in excess of jurisdiction. Whether any such advice that a Minister need not comply could even arguably attract legal professional privilege could well be doubted. But all possibilities remain speculation. The fact is that the Minister did not explain why PDWL was still in immigration detention and did not comply with Order 1 as made by Perry J on 12 March 2020. Even as at the date of hearing before the Court as presently constituted, no real explanation has been provided. Rejected is the submission now made that non-compliance with Order 1 “should not be regarded as wilful defiance or disregard of the order”.

62    Such conduct, it is respectfully concluded, warrants an exercise of discretion to refuse the Applicant Minister an order quashing the Tribunal decision. At the heart of the decision-making tasks being undertaken by the delegate, the Minister and the Tribunal were questions going to the ability of PDWL to remain lawfully in this Country and to avoid persecution, and questions going to his very liberty. Such matters were peremptorily placed to one side by the Minister simply because of a personal dislike of the Tribunal decision and an unwillingness to explain his conduct, even when ordered to do so.

63    Also of relevance to the exercise of the discretion is the absence of any application made by the Minister to the Tribunal to defer the “coming into effect” of its decision. Even assuming, as the Minister in the present proceeding submitted, there was no power in the Tribunal to grant a stay of its decision, left unexplained by the Minister was why an order was not sought from the Tribunal pursuant to s 43(5B) of the Administrative Appeals Tribunal Act that its decision was “not to come into operation” for a period of 28 days to allow an application to be made to this Court. Given the agreement between the parties before the Tribunal that BAL19require[d] [the Tribunal] to set aside the [Minister’s] delegate’s decision” ([2020] AATA 485 at [2]), the prospect of the Tribunal making an order of the kind that it did could not have been overlooked. Had the Minister wished to pursue a course of challenging the Tribunal’s reliance upon the legal consequences of the 2014 legislative amendments to the Migration Act as set forth in BAL19, and given his position that there was no power on the part of the Tribunal to grant a stay of any decision, the absence of an application to defer the coming into operation of an adverse Tribunal decision left the Minister in the position that he had no option but to comply with the decision.

64    The decision of the Tribunal thus remains intact. And this is so notwithstanding:

  • the conclusion that the Tribunal fell into jurisdictional error in applying the construction of (inter alia) s 36(1C) and s 501 of the Migration Act as set forth in BAL19; and
  • the merit of an argument that the Tribunal had no power (or perhaps even jurisdiction) to grant the relief that it did.

Until set aside by an order of this Court, the decision of the Tribunal resolved any question as to his entitlement to the visa granted by the Tribunal. The function of an order in the nature of certiorari, it has been said, “is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights”: Probuild [2018] HCA at [28], (2018) 264 CLR at 13 per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ. See also:DMI16 v federal Circuit Court of Australia [2018] FCAFC 95 at [38], (2018) 264 FCR 454 at 464 per Collier, Logan and Perry JJ.

65    Jurisdictional error on the part of an administrative decision-maker, it may be accepted, may lead to a decision having no legal consequences: cf. Bhardwaj [2002] HCA 11, (2009) 209 CLR 597. But there is “no universal proposition that jurisdictional error” necessarily has that effect: Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 at [42], (2003) 145 FCR 1 at 16 per Gray and Downes JJ. Just as a “purported” decision on the part of a delegate remained a “decision” susceptible of review by the Tribunal (cf. Brian Lawlor), a “purported” decision of the Tribunal or a decision of the Tribunal made in excess of the power conferred upon it, remained a “decision” of the Tribunal susceptible to judicial review by this Court: cf. Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [37] to [40], (2003) 131 FCR 28 at 39 to 41 per Gray ACJ and North J.

66    There is, moreover, nothing in the Migration Act which could be relied upon as providing a basis for an inference that Tribunal decisions can be ignored by the Minister and stripped of any legal effect if the Minister believes that such decisions are either factually or legally erroneous, or even if the Minister believes that such decisions have been made in excess of jurisdiction or power. The availability of judicial review of Tribunal decisions by this Court or the High Court for jurisdictional error strongly denies the availability of any such inference.

67    Any concern that such a result may not be in the public interest, it is further concluded, is satisfactorily answered by:

  • the fact that Wigney J has previously concluded that a writ in the nature of habeas corpus was appropriate to be granted; and
  • the finding of fact made by the Tribunal “that there are in fact no outstanding issues to be addressed by the Respondent” ([2020] AATA 485 at [28]).

68    A party to a proceeding in this Court, be it a Minister of the Crown or otherwise, cannot fail to comply with findings and orders made by the Tribunal or this Court simply because he “does not like” them. Decisions and orders or directions of the Tribunal or a court, made in accordance with law, are to be complied with. The Minister cannot unilaterally place himself above the law.

69    Notwithstanding the conclusion that Ground 1 of the Amended Originating Application has been upheld and although unnecessary to decide, the conclusion that Ground 2 has some merit, relief is refused in the exercise of the Court’s discretion.

70    The consequence of the Tribunal decision, and the refusal of discretionary relief to set aside the Tribunal’s decision, is that PDWL has now been granted a visa. The refusal of relief in the form of quashing the Tribunal decision leaves PDWL as the holder of that visa.

74    Even if both Grounds of review were made out, however, relief should be refused in the exercise of the Court’s discretion. The Minister cannot place himself above the law and, at the same time, necessarily expect that this Court will grant discretionary relief. The Minister has acted unlawfully. His actions have unlawfully deprived a person of his liberty. His conduct exposes him to both civil and potentially criminal sanctions, not limited to a proceeding for contempt. In the absence of explanation, the Minister has engaged in conduct which can only be described as criminal. He has intentionally and without lawful authority been responsible for depriving a person of his liberty. Whether or not further proceedings are to be instituted is not a matter of present concern. The duty Judge in the present proceeding was quite correct to describe the Minister’s conduct as “disgraceful”. Such conduct by this particular Minister is, regrettably, not unprecedented: AFX17 v Minister for Home Affairs (No 4) [2020] FCA 926 at [8] to [9] per Flick J. Any deference to decisions made by Ministers by reason of their accountability to Parliament and ultimately the electorate assumes but little relevance in the present case. Ministerial “responsibility”, with respect, cannot embrace unlawful conduct intentionally engaged in by a Minister who seeks to place himself above the law. Although unlawful conduct on the part of a litigant does not necessarily dictate the refusal of relief, on the facts of the present case the Minister’s conduct warrants the refusal of relief.

Disclaimer: the above is a mere tentative extract of a court decision. The views there expressed might not reflect the views of the OMARA, Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.

Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au

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