Image: ALEX ELLINGHAUSEN, The Sydney Morning Herald |
Thursday, 24 September 2020
Proof that the Morrison Government considers itself above the law
It is to him the following Federal Court of Australia judgment refers.
CONCLUSIONS
Ground
1 of the Amended Originating Application has been upheld.
Notwithstanding the agreement between the parties to the Tribunal
proceeding, the Tribunal erred in acting upon the agreement between
the parties that the decision in BAL19 required it “to set aside
the ... delegate’s decision” and that “[the] only question”
to be resolved was the form of the “further order” to be made
under s
43(1)(c) of the Administrative
Appeals Tribunal Act.
Although
the Tribunal quite properly acted upon the agreement of the parties
that it was bound by BAL19, the fact remains that the Tribunal failed
to give any consideration to a matter of fundamental importance to a
decision as to whether to grant or refuse a protection visa –
namely, the discretion conferred by s 501(1). In failing to do so,
the Tribunal committed jurisdictional error.
The
second Ground of review, it has tentatively been concluded has some
merit.
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.
It
is finally concluded that there should be no order for costs.
Although PDWL has succeeded in retaining the visa granted to him,
that result follows not from the lack of success on the part of the
Minister in establishing jurisdictional error but rather from the
discretionary refusal of relief.
THE
ORDERS OF THE COURT ARE:
The
Amended Originating Application filed on 20 July 2020 is dismissed.
There
is no order as to costs. [my
yellow highlighting]
Alan Tudge should resign from the Australian Parliament with immediate effect.
However, it is highly likely he will refuse any call to do so and instead appeal this judgment.
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