AAG15 v Minister for Immigration and Border Protection

[2016] HCATrans 131

[2016] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M54 of 2016

B e t w e e n -

AAG15

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO WESTERN AUSTRALIA

ON FRIDAY, 3 JUNE 2016, AT 11.00 AM

Copyright in the High Court of Australia

AAG15 appeared in person.

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the defendant in this matter.  (instructed by Australian Government Solicitor)

HIS HONOUR:   If you do not mind, I will call you Mr AAG15, for reasons which you will understand.

AAG15:   Yes, your Honour, thank you.

HIS HONOUR:   Mr AAG15, is there anything further that you would like to add to what you said last time?

AAG15:   Yes, your Honour.  I would just like to briefly go through the minutes that was put through to ‑ with regards to my ministerial intervention request ‑ ‑ ‑

HIS HONOUR:   Yes.

AAG15:   ‑ ‑ ‑ that Mr Barnett filed.

HIS HONOUR:   Yes.

AAG15:   The seven pages.

HIS HONOUR:   Yes.

AAG15:   I will just start at page 2 with my immigration history.  At the part on the date of 10 October 2014 when my Federal Court dismissed - that was by Judge Tracey I believe.  On the day of the judgment I received the email from Judge Tracey.  That was a Friday afternoon.  Three days later, on 13 October, a representative of the defendant, a case manager at the Maribyrnong Immigration Detention Centre, he called me for an interview and presented me the reasons for judgment and then he advised me that the Department was making arrangements for me to be removed from Australia to go back to Fiji.

I advised him that according to the Federal Court Rules, rule 33.06 2011, I had a right to appeal the case which was 21 days.  When he said I was going to be removed to Fiji, I reminded him that he was the very gentleman that gave me an apology letter seven months earlier and that apology letter was to do with the data breach.

HIS HONOUR:   Yes.

AAG15:   Then John Davies said to me, okay, he will make some phone calls and he would get back to me, which he did four days later on 17 October.  He said to me do not appeal Judge Tracey’s reasons for judgment.  Put in a protection visa to validate the data breach.  So that is where the case ‑ ‑ ‑

HIS HONOUR:   Mr AAG15, what you are doing now is giving evidence.
If there is to be any evidence given in this application it will need to be on affidavit and thus far none has been filed.  I do not know ‑ ‑ ‑

AAG15:   Yes, your Honour, that is why ‑ ‑ ‑

HIS HONOUR:   Just a moment please.  I am not sure what Mr Knowles’ attitude is to this.  What is it, Mr Knowles?

MR KNOWLES:   Well, we say there has been sufficient time to put on evidence about these matters if it was necessary to do so.  But I think more fundamentally we would say that this evidence really does not go to a material issue in this case when one is ‑ ‑ ‑

HIS HONOUR:   It does not sound as though it does but you would have no objection to me hearing what the man has to say?

MR KNOWLES:   No, your Honour.

HIS HONOUR:   Thank you, Mr Knowles.  You may proceed, Mr AAG15.

AAG15:   Thank you, your Honour.  Thank you to the solicitor for the Minister.  Yes, that is where I did not appeal the proceedings or the judgment of Judge Tracey and the Tribunal’s decision.  If we go to page 3 of the minutes ‑ ‑ ‑

HIS HONOUR:   Yes.

AAG15:   ‑ ‑ ‑on the second paragraph it says intervention order which was issued on 13 March 2013.  Right from the start, your Honour, on the day of charge, which was 16 December 2011, all this was summarised in my affidavit which was presented in the Federal Court to the proceedings to Judge Tracey which was annexure JL‑3.  I am not sure if you have gone through it, your Honour, but it was a summary explaining to Judge Tracey about the proceedings of the AAT and there were a lot of discrepancies, a lot of false statements that were in the AAT report.  So that was tabled to Judge Tracey.

But just to summarise it, from the first day of the charge I vowed to tell the truth which I did, and that was highlighted by Judge Smallwood on his sentencing report on 13 August 2012.  He quoted, “You pleaded guilty at the earliest reasonable opportunity”.  He accepted that and that is where he gave me a gimonstrous discount which unfortunately I could not present to you, the reasons for judgment of Judge Smallwood.

That was summarised by the psychologist that prepared the report for the court before my sentencing.  He also said “Mr AAG15 provided a version of events that was consistent with a summary of charges and his record of interview”.  He said he was pleading guilty to the charges when I did the program.  Even the psychologist that did the program, she said “His…..is intact.  There is no indication that he has ever suffered an impairment in his capacity to appreciate the wrongfulness of his actions to understand the consequences”.  I am just running through this, your Honour, because ‑ ‑ ‑

HIS HONOUR:   Mr AAG15, these matters are referred to extensively in the Administrative Appeal Tribunal’s reasons for decision.

AAG15:   Yes, you have gone through them, your Honour?

HIS HONOUR:   I have.

AAG15:   Okay.  I just thought I was going to explain to you because I just thought you had not had a look at them.

HIS HONOUR:   No.  I have those and I have read them.  Thank you.

AAG15:   Okay, thank you, your Honour.  That is all I just wanted to clarify.  Yes, apart from that, I believe if you have read them, then you would have seen on the annexure, JL‑3, my submission against the AAT report, their decision from 7 and 8 January 2014.

HIS HONOUR:   Yes.

AAG15:   I just wanted to highlight that because of the character side that is the barrier for the request for the ministerial intervention, your Honour.  Apart from that, I just refer back to the PAM3 where I…..which I mentioned on Tuesday, I believe, with regards to the three strong points there where the Minister says the cases should be brought to his attention.

HIS HONOUR:   Yes.

AAG15:   That is all, your Honour.

HIS HONOUR:   Thank you.

AAG15:   Thank you, sir.

HIS HONOUR:   You may have a seat, if you wish.

AAG15:   Yes, thank you.

HIS HONOUR:   Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  Your Honour, this matter has come back before the Court today, having previously been before the Court this last Tuesday.  At that time, the Court sought some further information from my client and there have been two affidavits filed with the Court since then and I just thought I should ask the Court whether or not there has been an opportunity to consider those affidavits.  It sounds very much as if there has been, given your Honour’s indication to the plaintiff a moment ago.

HIS HONOUR:   Yes, I should note that I treat as read the affidavit of John David Brown which was sworn on 31 May 2016 and also that I have had the opportunity to read both that affidavit and the exhibits to it and I also shall treat as read the affidavit of John David Brown sworn 25 May 2016 and the exhibits to it which I have also had an opportunity to read as well as a further affidavit sworn by Edward Lysander Rogers on 2 June 2016 and the exhibit to that.

MR KNOWLES:   Thank you, your Honour.  I am indebted to the Court.  Your Honour, coming back before the Court today, the matter is now at a point where essentially rule 25.03.3 of the High Court Rules applies such that at this time the Court may order that the application be dismissed or that it be referred to a Full Court of the High Court or that the defendant, my client, show cause why relief in the nature claimed by the plaintiff should not be made.

As your Honour will be aware from the outline of submissions that was filed previously on behalf of the Minister, the Minister contends that the Court should order that the plaintiff’s application for an order to show cause be dismissed with costs.

HIS HONOUR:   Yes.

MR KNOWLES:   In support of that contention, the Minister relies upon the affidavit material to which your Honour has just referred.  Your Honour will have seen that the first affidavit of Mr Brown essentially exhibited guidelines promulgated by the Minister which set out the circumstances in which the Minister would be prepared to consider a request for the exercise of the powers…..section 417 of the Migration Act 1958. Those guidelines on page 7 include a stipulation by the Minister that in the ordinary course, if a person has been the subject of visa cancellation on character grounds, the matter ought not to be referred to the Minister in those circumstances.

HIS HONOUR:   Yes.

MR KNOWLES:   Obviously, that applies to the plaintiff.  Having said that, it is not necessarily apparent that that was the basis upon which there was a decision not to refer.  It was simply said in the minute to which the plaintiff earlier referred your Honour, that the plaintiff’s circumstances did not meet the guidelines.

HIS HONOUR:   Yes.  Well that would be both the conviction for and sentence for more than 12 months plus a lack of exceptional circumstances within the meaning of paragraph 4 of the PAM.

MR KNOWLES:   Yes.

HIS HONOUR:   So one should take it as meaning both?

MR KNOWLES:   Yes, indeed, your Honour.  In terms of the second affidavit of Mr Brown, your Honour will have seen that that essentially sets out the plaintiff’s immigration history and in particular the administrative and judicial decisions relating to visa applications or visas held by the plaintiff and it in particular contains the minute to which the plaintiff has referred.  That is exhibit JDB‑9.

In that minute your Honour will see that the departmental officer considered the plaintiff’s family and other ties to Australia including in that regard the best interests of his children and grandchildren.  The officer also considered his ongoing WorkCover claim. 

Now, those two matters were the only matters which were the subject of the plaintiff’s request which was put before the Court as an exhibit to the third affidavit which is relied upon by the Minister, being the affidavit of my learned instructor, Mr Rogers, and I do not take your Honour to the request but it is quite plain on its face that they are really the only issues that are referred to in the covering letter and the attachments.  All go to matters pertaining to family or the WorkCover claim which he was seeking to advance.

Now, at the time of serving Mr Rogers’ affidavit yesterday, my instructor informed both the Court and the plaintiff of two decisions upon which the Minister might rely today.  Those decisions are the cases of S134 of 2002 and S10 of 2011 and your Honour, I take it, will have seen that there was reference to that in correspondence to the Court.

HIS HONOUR:   Yes.

MR KNOWLES:   Now, I can hand up copies of those cases if need be.

HIS HONOUR:   No, I have both of them.  Thank you, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  I should indicate for the sake of completeness that electronic copies of those cases were emailed to the plaintiff ‑ ‑ ‑

HIS HONOUR:   Very good.

MR KNOWLES:   ‑ ‑ ‑ at the time of providing the further affidavit to him.  Now, I do not know whether it is of any assistance to your Honour for me to go through the factual background to this matter.  I am conscious of the fact that it is set out at length in Mr Brown’s second affidavit.

HIS HONOUR:   Yes.  The only thing I wanted to really check with you was that we are dealing now only with the request for intervention based upon the family ties and WorkCover claim. There remains extant and we are not concerned with it, that which relates to the so‑called data breach.

MR KNOWLES:   That is so, your Honour, and can I say a couple of things about that?

HIS HONOUR:   Yes.

MR KNOWLES:   Firstly, as your Honour has rightly, in my respectful submission, observed, this is a case which is directed only to the request made on 17 February this year and the response to that request.

HIS HONOUR:   Yes.

MR KNOWLES:   The plaintiff has made a subsequent request but that is not the subject of this proceeding before the Court.  As to the nature of that request and what it relies upon, I am not in a position to inform your Honour.  I do not have instructions about that.  I am just aware of that having occurred.

But secondly, in respect of the data breach issue, yes, this request that was made which is the subject of this proceeding, does not refer to that at all.  Having said that, even if it did, I would make two observations briefly about it:  firstly, the data breach case is a case in which the plaintiff is not a party but, secondly, and in any event, these questions relating to data breach were considered carefully and fully by the Refugee Review Tribunal in an assessment of this particular plaintiff’s claims to be owed protection obligations by Australia.

As I say, that is another reason, and this is referred to in one of the authorities that I will come to in due course, your Honour, why even if there had been reliance put by the plaintiff on that particular factual matter, which there was not, but even if there had been and it was the subject of some denial of procedural fairness in terms of the hearing rule, Plaintiff S10 of 2011 would suggest that it would not follow that the plaintiff in this case could get relief.

HIS HONOUR:   So I understand that there has been a subsequent decision of the Full Federal Court to the effect that because of the extent to which the officers went in carrying out the otherwise described preliminary assessment, they had crossed to the point where the Minister was in fact taken to be considering whether he would exercise his powers and thus attracted the obligation of procedural fairness under M61.

MR KNOWLES:   I do not understand that to be the case, your Honour, but ‑ ‑ ‑

HIS HONOUR:   But I do not think we are concerned with that matter in this proceeding, are we?

MR KNOWLES:   No, and partially because also we have a situation where, as I say, there have been review powers exercised in respect of a protection visa application and those review powers have afforded the plaintiff procedural fairness and in the context of doing so have considered his claim in respect of data breach and dealt with it as to whether or not as a result of that he might be owed protection obligations.

HIS HONOUR:   Yes.

MR KNOWLES:   I refer your Honour – well, it is not necessary for me to take your Honour to it in detail, but I would refer your Honour to paragraphs 105 and following in the Refugee Review Tribunal’s decision, which is exhibit JDB‑4 to Mr Brown’s latter affidavit.

HIS HONOUR:   Yes.

MR KNOWLES:   So, this case is quite outside the realm of those other cases, in any event, we would say.

HIS HONOUR:   Yes.

MR KNOWLES:   Now, in terms of the application itself that the plaintiff has made to this Court, your Honour will have seen that the relief sought is a writ of prohibition preventing reliance by the Minister on the refusal to refer the plaintiff’s request to him.

HIS HONOUR:   Yes.

MR KNOWLES:   A writ of certiorari quashing that refusal, and most pertinently for my purposes, a writ of mandamus ‑ and I quote from the application itself:

ordering and directing the Defendant to determine My application for Ministerial Intervention according to Law –

and I will come back to that in a moment, and lastly:

An Injunction issued restraining the Defendant . . . from removing –

the plaintiff pending the finalisation of this proceeding. In terms of the writ of mandamus, as your Honour will be aware, section 417 of the Act, as well as other provisions that provide what have been described by this Court as “dispensing powers”, is a non‑compellable power.

HIS HONOUR:   Yes.

MR KNOWLES: It is not something that one applies for. It is certainly contemplated that there might be requests made for it to be exercised but whether or not that occurs is entirely a matter for the Minister to determine, in the public interest as determined by the Minister, and in some ways one might see it as a release valve from the otherwise operation of the Act.

As your Honour will be aware, there are a number of characteristics of section 417 that have been taken into account by this Court in construing it. One is what I have just mentioned to your Honour, that it is a non‑compellable power, in particular in subsection (7) of the provision, the Minister is said to be under no duty to exercise the power. But otherwise, it is a power that is exercised having regard to the public interest.

It is also a power that, if exercised, needs to be the subject of tabling before Houses of Parliament.  It is a power in that sense where the Minister, the decision‑maker, is accountable to Parliament.  In that sense, it is in the nature of a power which is political in some ways.  But the point that one derives from all of that is that the way the courts, and this Court in particular, have looked at the power is that mandamus will not go to compel the decision‑maker to exercise the power.

HIS HONOUR:   Yes.

MR KNOWLES:   If that is so, then the other relief, which essentially hangs off, in my respectful submission, the grant of mandamus in the first place, ought not to go either.  But, if I can turn then from the relief though, to the grounds that have been advanced in the application, and I do this under cover of the general submission that I make about relief, that there is no relief that the plaintiff could obtain in this proceeding, even if some error could be shown, in my submission.

But, putting that to one side for the moment, the grounds simply say that there ought to have been a referral of the matter to the Minister.  They say that not to do so was unreasonable because, according to the plaintiff, he met the guidelines.  Now, as I have already indicated to your Honour, on its face, he did not because he has been the subject of visa cancellation on the grounds of character and, as such, he cannot satisfy the requirements that are set out in Part 7 of the guidelines.

But, otherwise, it is asserted by the plaintiff that somehow in refusing to refer the matter to the Minister there was a failure to take into account matters that he had advanced in support of his request.  Now, I have gone to those matters before your Honour.  They were simply that there were family and other ties to Australia and that he was otherwise someone who had an ongoing WorkCover claim that had not been fully determined.  Now, those matters were clearly taken into account by the departmental officer. 

That deals with grounds 1 to 3. Ground 4 asserts that somehow there has been a breach of the duty of care that might be owed to him. Now, it is unparticularised as to how that duty arises and how it was breached but, in any event, we are dealing with an administrative decision and we are dealing with a decision that is done pursuant to guidelines that are issued by the Minister in respect of a non‑compellable power in section 417 and when one stands back from the allegation and looks at it through that prism, in my respectful submission, it is plain that that ground cannot be sustained in terms of it being directed to any of the heads of relief that have been referred to in the application.

The last ground, ground 5, seems to overlap with ground 2.  It simply says that the decision not to refer the matter was irrational and legally unreasonable in that, and I quote:

I met the requirements for the matter to be brought before the Minister by his Department for his consideration and intervention –

and I have already with that. It essentially duplicates what is said in my submission in respect of ground 2. Now, in terms of section 417, I briefly referred to the nature of the power there. I do not know whether your Honour would like me to do so but I could take the Court to the relevant parts of S10 and S134, if it would be of assistance.

HIS HONOUR:   I have looked at them very recently, thank you very much, Mr Knowles, in response to the submission where they are noted.

MR KNOWLES: Yes, thank you, your Honour. So, in short though, having regard to those cases, I make two points. The first is that the grounds that are advanced could not give rise to some error which would lead to a quashing of any decision that might have been made in association with the power in section 417. That is the first point.

The second point, perhaps more conclusively, is that in any event, no relief could go, having regard to the non‑compellable nature of the power in section 417. That is really borne out by what is said by this Court in S134 of 2002 at the relevant paragraphs to which the Court was referred.  I should point out that those paragraphs were also brought to the plaintiff’s attention yesterday as well because he was sent a copy of the correspondence to the Court.

HIS HONOUR:   Yes, I see.

MR KNOWLES:   Having regard to those matters, your Honour, it is submitted that the appropriate course in this case is to dismiss the application with costs.  I should, just before I sit down, your Honour, just mention one other thing in response to the plaintiff’s oral submissions this morning.  He sought to make some point in respect of having not appealed from a judgment delivered by Justice Tracey in the Federal Court.

It is entirely unclear how that could bear upon any subsequent power that might be exercised pursuant to section 417. It needs to be borne in mind that Justice Tracey was looking at the character case, and section 417 is simply directed to whether or not a more favourable decision to the Refugee Review Tribunal case ought to be substituted and that is a separate and subsequent procedure which was invoked by the plaintiff in this case, and so it is simply unclear why it would have any bearing on the matters at hand ‑ ‑ ‑

HIS HONOUR:   I suppose inasmuch as the criteria by reference to which the officer determines whether the application should be referred to the Minister include reference to character grounds, and a stipulation by the Minister that normally he is not interested in seeing an application where

the subject is being deported on the basis of character grounds.  The two overlap to some extent.  I took the plaintiff to be putting it on that basis.

MR KNOWLES: Yes. We certainly would not see it as affecting in any way the submissions that I have already made to your Honour about the nature of section 417 ‑ ‑ ‑

HIS HONOUR:   I understand that; thank you.

MR KNOWLES:   ‑ ‑ ‑ and on that basis, we do submit, as I have already said, that the application ought to be refused and the proceeding should otherwise be dismissed with costs, your Honour.

HIS HONOUR:   Thank you very much, Mr Knowles.  Mr AAG15, is there anything further you would like to say, having heard what Mr Knowles’ submissions are?

AAG15:   Yes, your Honour.  Mr Knowles spoke about my request on 17 February, my original ministerial intervention to the Minister that spoke on family and my health.

HIS HONOUR:   Yes.

AAG15:   Just going back to the minutes that Mr Brown provided, on page 4 it says that I have children and grandchildren, and it also says “There is no evidence of any likely reconciliation”.  I abided by the law, every condition, with regards to the intervention order.  My parole was based on my release into the community and go to the family law court and, because of my love for my children, put in my application for me to see my children.  That was way back in 2013.  I was denied that opportunity because my visa was cancelled four days later after my parole was granted, and then, thus, I have come into detention.  From that day about ‑ ‑ ‑

HIS HONOUR:   I must say that there seemed – Mr AAG15, there seemed to be quite a lot in the Tribunal’s reasons for decision which would support the conclusion that you would not have much chance of having access to your children.

AAG15:   The children have not had their say.  I believe if the children had a sitting and they were asked if they wanted to see their dad, I believe they would be – I am being denied my ‑ ‑ ‑

HIS HONOUR:   I understand your position.  The only reason I mention that is that the officer has to act on the basis of what is before him.  That included doubtless the Tribunal’s reasons, and the Tribunal’s reasons seem to tally fairly closely with his conclusion that you will not have much association with the children.  Whether that is right or wrong, it does not appear to be an unreasonable conclusion on the part of the officer.  Do you see the difficulty?

AAG15:   Sorry, your Honour.

HIS HONOUR:   Not at all.

AAG15:   That is why I had referred to annexure JL‑3, which I presented to Judge Tracey, which called out why the intervention order started in the first place.  I supported my former wife.  I signed over the vehicle; I supported her in every way.  These intervention orders were just made from false statements.  It was brought out in the Tribunal hearing, and unfortunately, Judge Tracey did not have the recording from the Tribunal.

HIS HONOUR:   Justice Tracey has made his decision.  It stands.  I need to act on the basis of it, of course, because that has been determined.

AAG15:   Yes, your Honour.  If you allow me to go forward with the medical side; the Department first knew of my medical condition when I first wrote to the then Minister for Immigration, which was Mr Brendan O’Connor, which was way back in February 2013.  He did question Mr Brown on when they knew of my injury, and like I stated in my grounds, they knew I was injured.  I had every opportunity to go out into the community, do the programs, do rehabilitation, but they put me in detention.  I requested a single room from the start.  I have always had the top bunk.  My injury has gotten worse over the 13 months I have been in detention.  I have been denied medical treatment, as I stated on Tuesday ‑ ‑ ‑

HIS HONOUR:   Yes.

AAG15:   ‑ ‑ ‑ and my compensation claim is at the very stage now with the affidavits to date, and it could only be within the next six months.  My original request was if I cannot stay and be with my children and my former wife and support her in every way – because I was the one that initiated all this from the beginning.  I accepted my responsibility from the first day.  I have broken the law.  I have written so many letters to all that were concerned through these four or five years since my ongoing case.  I have apologised to the Australian Government.  I was never given at least a second chance.

My request is only if I cannot be with my children, then at least let me get what I can from my compensation claim.  It is all for my children; it is not about me anymore.  It is not about me.  It is about my children and my grandchildren, and my former wife if she wanted the support; otherwise, then, I walk away.

I volunteered to get removed to Fiji, and as soon as the reply came back for this notification that it was rejected by the Minister, I get logistic appointments with Border Force to be removed to Fiji.  The case manager, who does not have her job anymore – I do not know what reasons – she actually wanted to present to me the papers to sign.

Speaking of the data breach, because Mr Knowles mentioned the data breach – he said that I was not in the data breach.  I have a file number with the Privacy Commissioner.  The Privacy Commissioner filed a report to the Department.  They gave him a reference number, which I have, and I have been represented by John Sweeney.  I had an apology letter from the Department on 12 March.  I was told that with the data breach case, it was frozen.  We cannot be deported until the case is finalised, which continues on Tuesday.

Your Honour, all I ask is – I presented to the defendant.  If I cannot stay and support my children, then let me at least finish my compensation claim which I have in front of me, the affidavit which is prepared.  That goes into negotiations now with the company; otherwise, it gets filed in the County Court.  That is all, your Honour.  I thank you for your time.

HIS HONOUR:   Thank you.  Mr Knowles, you are quite confident this man is not a party to the data breach proceeding, are you?

MR KNOWLES:   The matter of SZSSJ; that is so, yes, your Honour.

HIS HONOUR:   Is he covered by the – not undertakings, but understanding that these people are not to be removed until that has been sorted out, or is he outside the cover of that?

MR KNOWLES:   He does not have any proceeding on foot.  That has been adjourned pending that case being determined by this Court.  My instructions are that in the Minister’s submission, he falls outside of that for the reasons that I have already stated to your Honour, and that is that insofar as he had claims for protection, those claims dealt with any consequences of the data breach at that time.

HIS HONOUR:   Yes, I see.

MR KNOWLES:   The only case where that has been considered, I understand, is a Federal Court decision of ABC15 v Minister for Immigration and Border Protection (2015) FCA 1314 at 29.

HIS HONOUR:   What did that hold?

MR KNOWLES:   That held that the matter of SZSSJ does not have a bearing on a case such as this one where the data breach claims were considered as part of the process in respect of the protection visa application.  I can provide a copy to your Honour, if it would be of assistance.

HIS HONOUR:   That would be of assistance, thank you.

MR KNOWLES:   In paragraph 29, your Honour will see that there a range of submissions made why, in this case, SZSSJ was distinguishable, but in paragraph 29, at least, it was held by the court that it was distinguishable because in that case it was concerned with the non‑statutory processes – the International Treaties Obligation Assessment and the like – that were being conducted by officers of the Department, rather than the Tribunal process, the statutory process which, in the Tribunal’s case here, afforded the plaintiff the opportunity to make claims in respect of the data breach, and those claims were considered.

HIS HONOUR:   Yes, thank you.

This is an application for an order to show cause why orders in the nature of prohibition, certiorari and mandamus should not go, in effect, to require the defendant Minister to determine the applicant’s application for ministerial intervention pursuant to section 417 of the Migration Act 1958 (Cth) (“the Act”).

The plaintiff is a 45‑year‑old Fijian citizen who is currently detained in an immigration detention centre in Perth.  He first came to Australia on a visitors’ visa in 1989 and, on 25 May 1989, he applied for a permanent resident visa and a work permit.  That application was refused and a bridging visa was issued pending determination of a review application to the Refugee Review Tribunal.  In 1989, he commenced a relationship with his cousin, W1, and in the following year they began to live together.  Two children were born of the relationship, a daughter C in 1990 and a son D in 1992.  In 1995, the applicant withdrew his application for permanent residence and returned to Fiji with W1 and his two children.  In 1996, he married W1 in Fiji and thereafter they had three more children, two boys, W born in 1996 and H born in 1997, and a daughter L born in 2000.  H was later adopted by another cousin and moved to the United States.  The applicant separated from W1 in 2004 and they were divorced in Fiji in 2006.  The applicant was granted custody of C, D, W and L.  Later in 2006, the applicant married an Australian woman, W2, in Fiji.

In 2007, the applicant, W2, and four of the five children of the applicant’s first marriage (that is to say all of them bar H) travelled to Australia.  The applicant arrived with W2 and his four children on 6 April 2007 on a Class UF Subclass 309 Spouse (Provisional) visa.  On 3 December 2008, he was granted a Class BC Subclass 100 Spouse visa (“the spouse visas”), and in 2010 W2 gave birth to a son, J.  Apart from a brief return to Fiji in 2009, the applicant has remained in this country since 2007.

Late in 2011 or early in 2012, the applicant was charged with two representative counts of sexual offences committed against a 12‑year‑old male relative and, upon pleading guilty, he was sentenced to a total effective sentence of two years and six months’ imprisonment with a non‑parole period of 15 months.  He was granted parole after 15 months and, upon his release on parole on 12 November 2013, he was taken into immigration detention where he has since remained.

On 18 October 2013, the spouse visa was cancelled under section 501(2) of the Act, by reason of the applicant having been convicted and sentenced to a period of more than 12 months’ imprisonment, and thus having acquired a substantial criminal record within the meaning of section 501(7) of the Act.

The plaintiff sought review of the decision to cancel the visa but, on 15 January 2014, the Administrative Appeals Tribunal affirmed the decision.  On 10 October 2014, the Federal Court of Australia (Tracey J) dismissed an application for judicial review of the Tribunal’s decision.  On 30 October 2014, the plaintiff lodged an application for a Protection (Class XA) visa (“the protection visa”) but, on 17 November 2014, a delegate of the Minister refused to grant the protection visa.

On 24 November 2014, the plaintiff filed an application for review of the delegate’s determination by the Refugee Review Tribunal and on 8 January 2015 the plaintiff appeared before that Tribunal to give evidence and present argument.  On 27 January 2015, the Tribunal affirmed the delegate’s decision to refuse the grant of the protection visa and the Tribunal published its reasons for decision.

On 15 July 2015, the plaintiff filed an amended application in the Federal Circuit Court for judicial review of the Tribunal’s decision.  It was heard before Judge McGuire on 1 September 2015.  The plaintiff appeared in person.  On 24 September, Judge McGuire dismissed the amended application and published his Honour’s reasons for judgment.

On 25 September 2015, the plaintiff filed a notice of appeal to the Federal Court.  On 8 February 2016, the appeal was heard before Jessup J.  The plaintiff appeared in person.  On 22 February 2016, Jessup J dismissed the appeal and published his Honour’s reasons for judgment.

On 17 February 2016, the plaintiff made a request for ministerial intervention pursuant to section 417 of the Act. On 30 March 2016, the plaintiff was informed by letter that his application for ministerial intervention had been assessed as not meeting the Minister’s guidelines for referral set out in PAM 3 Act ‑ Ministerial powers, Minister’s guidelines on ministerial powers (sections 351, 417 and 501J) (“the PAM”) and therefore have been finalised without referral to the Minister.

On 29 April 2016, the plaintiff filed this application seeking orders:  (a) to quash the decision to finalise the request for ministerial intervention without referral to the Minister; (b) to require the Minister to determine the request for ministerial intervention; and (c) to restrain the Minister from removing the plaintiff from Australia pending the hearing and determination of the application.

In brief substance, the grounds of the application are:  (1) the decision to finalise the application without reference to the Minister is affected by jurisdictional error; (2) the decision is unreasonable; (3) the decision failed to have regard to “My Medical condition and Injury for My Application to be brought before the Minister giving the particular directions in the PAM and it dictated that the contents and the available material was sufficient to meet the guidelines in particular the failure to have regard to the Best Interest of My grand children under 18, My children, My family and My ties to the Australian Community as well as My contribution of working and paying Tax”; (4) the decision is in “breach of the duty of care” which the Minister is said to owe the plaintiff by reason of being aware of “My Medical Injury and Mental Injury involved after being in Detention”; and (5) the decision is “irrational” and “legally unreasonable”.

Section 7 of the PAM provides that:

Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider.  The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing -

Set out below are a number of categories, including the following:

the person has been refused a visa or has had a visa cancelled on character grounds ‑

In this case, the plaintiff’s spouse visa was cancelled on character grounds when he was convicted of sexual offences against a 12‑year‑old male relative and sentenced therefor to more than 12 months’ imprisonment.  That offending was described by the Administrative Appeals Tribunal when considering the applicant’s application for review of the Minister’s decision to revoke his spouse visa, as follows:

He has committed crimes of a sexual nature which were also crimes of violence.  The offences were committed by him, an adult male (who is also a parent of children) on an infant who is a relative and to whom he thought of himself as like a father.  The offences were committed over an 18 month period and when he allowed or caused the victim, then aged between 12 and 13 years, to have consumed alcohol.  The applicant’s brother described the offending as absolute evil.

Evidently, there was no jurisdictional error in the decision not to refer the request for ministerial intervention to the Minister and there is no basis for the allegation that the decision was irrational or unreasonable.  The plaintiff’s visa was properly cancelled on character grounds and, thus, the plaintiff fell squarely within section 7 of the PAM.

Furthermore, as was held in Plaintiff S10 of 2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 654‑655 paragraphs 50 and 51 in the joint judgment of Chief Justice French and Justice Kiefel; and at 668 paragraph 100 in the joint judgment of Justices Gummow, Hayne, Crennan and Bell, the Minister is under no duty to respond to a request for his or her consideration of the exercise of the power conferred by section 417, and it makes no difference at law that, on the basis of the ministerial instructions laid down in the guidelines, certain classes of requests are not to be submitted to the Minister for his or her consideration. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134 of 2002 (2003) 211 CLR 441 at 460‑461 paragraphs 44‑48; and 474 paragraphs 99‑100 in the judgment of Justices Gaudron and Kirby. The work done by officers acting under the guidelines involves the acquisition of information and categorisation of requests or cases. It is an executive function incidental to the administration of the Act which stands outside the conventional statutory regime. Nothing about the character of the guideline processes, whether as an exercise of the executive power of the Commonwealth or otherwise, is sufficient in itself to attract a requirement to observe procedural fairness or to impose an obligation on the Minister to intervene.

The plaintiff’s complaint that no account has been taken of his medical condition, family ties and contribution to Australia by working and paying tax is equally misplaced.  In point of fact, each of those matters was considered at length in the Administrative Appeal Tribunal’s reasons for decision and in the reasons for judgment of Justice Tracey, about which there is no longer any complaint.

The criteria for referral to the Minister set out in paragraph 4 of the PAM are criteria of unique or exceptional circumstances, and it is apparent from the Minute of Assessment of requests for Ministerial Intervention against the Minister’s Guidelines on ministerial powers (section 417) (in which the decision not to refer the request for consideration by the Minister is recorded), the criteria of unique or exceptional circumstances were considered by the officer who made that decision and were found not to be satisfied.  That included a consideration of the plaintiff’s medical condition, family ties and contribution to Australia by working and paying tax.

It having been so determined in accordance with the PAM that it was inappropriate to refer the application to the Minister for determination, there was no occasion, still less requirement, for the Minister to consider the plaintiff’s medical condition, family ties or contribution to Australia by working and paying tax or otherwise to contemplate whether he should exercise his power of intervention.

In the result, the application to show cause is dismissed with costs.

MR KNOWLES:   If your Honour pleases.

AT 11.58 AM THE MATTER WAS CONCLUDED