The home affairs minister was warned he could be arrested and jailed after defying the federal court by refusing to make a decision on a protection visa
Home affairs minister Peter Dutton has narrowly avoided contempt of court charges after making a decision on an immigration case before a deadline set by a judge.
Federal court judge Geoffrey Flick on Thursday ordered Dutton to decide whether or not to grant an Iranian man a visa by midday on Friday, warning the minister that if he did not do so he would be charged with contempt of court.
Dutton could have been arrested and jailed if he continued to defy the court in a long-running battle over whether a protection visa should be granted to an Iranian man who arrived in Australia by boat.
However, the minister avoided charges by deciding to refuse the man a protection visa.
Sources say the decision was made on Thursday evening and the man’s lawyers were notified on Friday morning, less than three hours before the deadline expired.
In a judgment handed down on Thursday, Flick blasted Dutton for his “unapologetic reluctance to take personal responsibility for his own non-compliance with the law” and said the minister lacked candour in communications with the court by claiming he was not available to make a decision on the visa.
Flick had previously ordered Dutton to make a decision by 26 June but the minister has consistently refused to do so because he had lodged an appeal.
The judge said he received an email from Dutton’s lawyers on Tuesday stating that they had “been advised that the minister for home affairs is not available to make any such decision personally within the timeframe, and therefore request that the order reflect that such a decision may ultimately be made by any portfolio minister”.
“Why the Minister was “not available” and when he first became “not available” was not further satisfactorily explained,” Flick said.
“Also not explained is why the Minister was “available” to give instructions in this proceeding yesterday and “available” to give instructions this morning to proffer the assurance now being given, but “not available” to make a decision.”
Flick said the “lack of candour on the part of this Minister in not frankly disclosing such matters to this Court, together with the past conduct of this Minister in this proceeding” made him hesitate before granting more time for Dutton to comply.
But he extended the time for compliance until noon on Friday and said Dutton could fulfil his responsibilities by allowing someone else to make the decision by the deadline.
“Given the lamentable background to this proceeding, it is prudent to observe that in the event of non-compliance with the order as now made, contempt proceedings will be instituted,” Flick said.
“It is to be hoped that this Minister will comply with the order now made. In the absence of explanation, non-compliance with an order of this Court constitutes a serious contempt.”
Flick said if Dutton had an excuse for failing to comply with the latest order he would need to swear an affidavit and be available for cross-examination under oath by the Iranian asylum seeker’s lawyers.
“It may further be observed that it is deeply disturbing to realise that a Minister of the Crown who is charged with the responsibility for making decisions affecting the liberty of the subject – and on many occasions making assessments as to the consequences to be visited upon those visa applicants who have failed to comply with the law – is himself a person who has demonstrated an unapologetic reluctance to take personal responsibility for his own non-compliance with the law,” he said.
Dutton’s office has been contacted for comment.
The Iranian man at the centre of the long-running case, who has been given the pseudonym AFX17 by the court, arrived in Australia by boat in July 2013.
The government put him in immigration detention but after about two months released him on a bridging visa.
Immigration authorities cancelled the visa in December 2016 and put him back in detention. He then applied for a second visa, which was rejected in August 2018.
The administrative appeals tribunal set aside that decision in November that year, finding that the man passed a character test set down in immigration law.
But, despite inquiries, the department failed to process his application for another year.
In December the man went to the federal court, alleging there had been unreasonable delay in processing his application.
He received another setback in February when Dutton used his ministerial powers to overrule the tribunal’s decision and decided not to grant a visa.
But in March, with Dutton’s consent, Flick set aside the minister’s decision.
Despite this, Home Affairs still did not process the man’s visa application.
AFX17 went back to court in May seeking orders that there had been an unreasonable delay and forcing Dutton to make a decision in accordance with a previous ruling of the court that would force him to give the man a protection visa.
In response, the minister denied any unreasonable delay and said the previous decision, in a case called BAL19, was “plainly wrong”.
Flick rejected Dutton’s position in a 10 June ruling, finding that Dutton and the acting immigration minister, Alan Tudge, “lack power … to refuse to grant a protection visa”.
However, the BAL19 decision was last week overturned in two rulings of the full court of the federal court, opening the way for Dutton to reject AFX17’s visa application.
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