Two recent judicial review Federal Court decisions

Refugee cases provide much of the backdrop to migration law. BPV17 provides a textbook analysis of how unreasonableness works in practice. The facts boil down to this: the Independent Assessment Authority thought there was a real chance he would be persecuted if he returned to Ghazni in Afghanistan but that he would be safe if he relocated to Kabul. Here are some very useful analysis points in the decision:

“22. The Authority’s decision may be set-aside if the decision, or some material finding made on the way to reaching that decision, is properly characterised as illogical or irrational, lacking any intelligible justification, or made in the absence of any evidence or material capable of supporting any of it.”  

As stated by the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, unreasonableness is ‘fact dependent’:

“42.Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence.”

It is that careful sifting of the facts which is the ground work for a successful judicial review application.

Returning to BPV17, the issue concerned the ability of both the applicant and his wife to travel from Ghanzi to Kabul. It was clear that the information before the IAA was that the situation in Afghanistan was unstable. The court said:

“38. Nothing in the country information referred to by the Authority could have led it to logically or rationally conclude that the security situation in relation to the roads was such that a separation between the applicant and his wife would be “temporary” or that it would be safe for the wife to travel to Kabul in the reasonably foreseeable future.  None of the reports cited by the Authority include any forecast or prediction about the security situation on the roads in the future nor do they even faintly suggest that the situation was improving or that it would improve in the foreseeable future.”

The Court then concluded:

“In the circumstances, I consider that a key finding upon which the Authority’s conclusion that it would be reasonable for the appellant to relocate to Kabul was based was not supported by any country information. In my opinion that finding lacked any intelligible justification, was not supported by any probative material, and was legally unreasonable.  I also consider that the Authority’s error deprived the appellant of a realistic possibility of a different and more favourable outcome of the review.”  

In the end the case required a careful analysis of the material before the IAA including an examination of the material contained in the footnotes  of the IAA decision. The case is well worth studying not just as a case in protection visa law but as a case demonstrating that it is possible to mount an unreasonableness case based on a careful analysis of the facts, an approach that can be replicated in any visa situation.

Next I look at XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6, a case where the Federal Court by a 2/1 majority found that it was not possible to have a mandatory cancellation of a visa on criminal grounds twice arising out of the one relevant sentence of 12 months or more of imprisonment.

Although the facts are complex, it boils down to this. The appellant had a visa cancelled mandatorily under s501(3A) of the Migration Act for a 45 months sentence imposed for firearms offences. Subsequently a delegate under s501CA(4) revoke the mandatory cancellation of the visa.

But the appellant committed more offences and received more terms of imprisonment but each term was less than 12 months. While in prison the delegate made another decision to cancel the visa on a mandatory basis. Another delegate declined to revoke the cancellation and the AAT affirm the decision not to revoke the cancellation. An application for judicial review to a single judge of the Federal Court was unsuccessful and the former visa holder appealed to the Full Federal Court 

But because the second set of imprisonment was less than 12 months, the Full Federal Court found that the there could not be a second mandatory cancellation of a visa based on the same sentence. Therefore there was no basis for the appellant to be held in detention.

The Court also made some very valuable comments about a Federal Court being able to accept a collateral attack on an earlier decision (ie second mandatory visa cancellation) even if the time limit for seeking judicial review had technically passed. The case made it to the Federal Court because 

Rares J stated:

86.The basis of the appellant’s claim before the primary judge was that the Tribunal erred in concluding that it had jurisdiction because the cancellation decision was affected by jurisdictional error.  In other words, he sought relief on the basis that the 2018 non-revocation decision of the Tribunal “was in truth no more than a purported privative clause decision”, being a migration decision under s 476A(1)(b): cf: SZSSJ 259 CLR at 202 [61].  By dint of s 476A(2), because this Court had jurisdiction in that matter, it had the same jurisdiction “in relation to” it as the High Court had.  It follows that Middleton J erred in PYDZ [2021] FCA 1050 at [68] in finding that this Court could not grant declaratory relief, under s 476A(1)(b) and (2), in a collateral challenge to a s 501(3A) decision. 

87.Here, if a proceeding were brought in the High Court seeking a public law remedy in respect of the 2018 non-revocation decision (namely, the Tribunal’s decision purportedly made under s 500), the High Court could issue any of the constitutional writs in s 75(v) and had authority to grant certiorari or such other ancillary or incidental relief so as to ensure the effective exercise of its jurisdiction with respect to the s 75(v) matter: Bodruddaza 228 CLR at 673 [62]–[64].  It follows that s 476A(2) confers the same jurisdiction on this Court when it is seized of a “matter” being a migration decision (including a purported privative clause decision) under s 476A(1)(b).  This Court, as a superior court of record, has inherent jurisdiction to make a declaration of right: Plaintiff M61/2010E v The Commonwealth (The Offshore Processing Case) (2010) 243 CLR 319 at 359–360 [101]–[104] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581–582 per Mason CJ, Dawson, Toohey and Gaudron JJ. 

The importance of XJLR is one can trawl back through the decision making process, including past decisions related in a chain of decisions, to attack the final decision.

For XJLR see https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC//2022/6.html

For BPV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 157 see: https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2022/157.html