ENT19 v Minister for Home Affairs

ORDERS

THE COURT ORDERS THAT:

1. Order 2(b) of the orders made on 26 November 2021 requiring the Minister to determine the appellant’s application for a Safe Haven Enterprise (Class XE) Subclass 790 visa according to law be made on or before 27 June 2022.

2. The respondent pay the appellant’s costs of and incidental to the interlocutory application filed 10 April 2022 and as amended on 2 June 2022, as agreed or taxed.

3. The determination of the basis upon which the costs are payable under Order 2 be stood over to a date to be fixed in the event that the parties are unable to reach agreement.

4. The appellant’s interlocutory application filed 10 April 2022 and as amended on 2 June 2022 stand over to a date to be fixed.

5. There be liberty to apply on 2 days’ notice in writing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER J:

1. By amended interlocutory application dated 1 June, filed 2 June 2022, the appellant sought, (not including the proposed orders as to costs):

1. a peremptory writ of mandamus commanding the respondent, the Minister for Home Affairs, to grant the appellant the protection visa for which he has applied (a Safe Haven Enterprise (Class XE) Subclass 790 visa (SHEV visa)), forthwith;

2. alternatively to (a), an order requiring the Minister to comply with order 2(b) of the orders made by Justices Collier, Katzmann and Wheelahan on 26 November 2021 on or before a date not more than 7 days after the date of this order.

2. The appellant has appealed previously from a decision of the Federal Circuit Court of Australia (FCCA) (now the Federal Circuit and Family Court of Australia). In that decision, the primary judge dismissed an application for judicial review of the Minister’s decision: ENT19 v Minister for Home Affairs [2020] FCCA 2653 (ENT19 (FCCA)). The Minister was not satisfied that the grant of a SHEV visa was in the national interest. The appellant’s appeal in the Full Court of the Federal Court of Australia was successful: ENT19 v Minister for Home Affairs [2021] FCAFC 217. The Full Court ordered, on 26 November 2021, inter alia:

2(b) A writ of mandamus issue directed to the respondent requiring her to determine the appellant’s application for a Safe Haven Enterprise (Class XE) Subclass 790 visa according to law.

3. As at the time of the current application, the Minister has failed to make a decision regarding the appellant’s application for a SHEV visa.

4. It is questionable whether the appellant’s application is interlocutory in nature given the orders made on 26 November 2021 were final in nature. Nonetheless, this Court is not yet functus officio given the Court retains the power in the same suit to make supplemental orders determining the rights of the parties: Sebastian v State of Western Australia [2008] FCA 926 at [26] – [27]. As a consequence, this Court has jurisdiction to make supplemental orders to aid the enforcement of the orders of the Full Court made on 26 November 2021.

5. The appellant is an Iranian national. On 14 December 2013, he entered Australia by sea from Indonesia without a valid visa and landed on Christmas Island as an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth) (the Act). This meant the appellant was ineligible for a permanent protection visa and could only apply for a temporary protection visa, such as a SHEV visa, if the Minister determined that it was in the public interest to allow him to do so: s 46A of the Act.

6. Between 2012 and 2013, the appellant...