PHMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1776

PHMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1776

Because s 500(6L) had already operated at midnight on 22 May 2019 to deem the delegate's non-revocation decision affirmed, the Tribunal had no jurisdiction to make a merits decision on 27 May 2019. The 27 May 2019 document was nevertheless a purported exercise of power and a purported privative clause decision, giving the Court jurisdiction. Certiorari, prohibition and injunction were refused because the purported decision had no actual legal effect or legal consequences and there was no basis to restrain legally binding reliance on it. A limited declaration was appropriate because the form and content of the purported decision created a real practical risk that its reasons and adverse...

Jurisdiction
Australia
Judgment Date
31 October 2019
Procedural Posture
Application for Constitutional Writs, Certiorari, Declaration and Injunction Concerning a Purported Administrative Appeals Tribunal Migration Decision / Federal Court Judgment on Further Amended Originating Application
Outcome
Declaration granted in limited form; further amended originating application otherwise dismissed; first respondent ordered to pay the applicant's costs.
Legal Topics
['administrative Appeals Tribunal Merits Review' 'visa Cancellation and Non Revocation' 'section 500(6 L) Deemed Affirmation' 'purported Privative Clause Decision' 'certiorari' 'prohibition' 'injunction' 'declaratory Relief']
['migration Law' 'administrative Law' 'judicial Review'] ['administrative Appeals Tribunal Merits Review' 'visa Cancellation and Non Revocation' 'section 500(6 L) Deemed Affirmation' 'purported Privative Clause Decision' 'certiorari' 'prohibition' 'injunction' 'declaratory Relief']

Case Brief

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Procedural Posture

Application for Constitutional Writs, Certiorari, Declaration and Injunction Concerning a Purported Administrative Appeals Tribunal Migration Decision / Federal Court Judgment on Further Amended Originating Application

Legal Issues

  1. 1 ["Whether the Tribunal's 27 May 2019 document was a purported privative clause decision within s 5E of the Migration Act 1958 (Cth)." 'Whether the Tribunal had power to make the 27 May 2019 purported decision after the 84 day period in s 500(6L) had expired.' "Whether certiorari should issue to quash the Tribunal's purported decision." "Whether prohibition or an injunction should restrain reliance on the Tribunal's purported decision." "Whether a declaration should be made that the Tribunal's purported decision was made without power and was of no legal effect."]

Ratio Decidendi

Because s 500(6L) had already operated at midnight on 22 May 2019 to deem the delegate's non-revocation decision affirmed, the Tribunal had no jurisdiction to make a merits decision on 27 May 2019. The 27 May 2019 document was nevertheless a purported exercise of power and a purported privative clause decision, giving the Court jurisdiction. Certiorari, prohibition and injunction were refused because the purported decision had no actual legal effect or legal consequences and there was no basis to restrain legally binding reliance on it. A limited declaration was appropriate because the form and content of the purported decision created a real practical risk that its reasons and adverse...

Court Disposition

Declaration granted in limited form; further amended originating application otherwise dismissed; first respondent ordered to pay the applicant's costs.

Orders

  • ['The parties provide to the chambers of Justice Bromwich a draft agreed declaration, or failing that, competing draft versions of a declaration, in accordance with the reasons for judgment, within 7 days or such longer time as may be sought and allowed.' 'The further amended originating application otherwise be...