AOB18 v Minister for Home Affairs
[2018] FCCA 2748
•26 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOB18 v MINISTER FOR HOME AFFAIRS | [2018] FCCA 2748 |
| Catchwords: MIGRATION – Notice of objection to competency – substantive decision said to have been made pursuant to s.476 of the Migration Act 1958 (Cth) – whether the Court has jurisdiction – whether there has been a migration decision – no jurisdiction – notice of objection to competency upheld – substantive application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 46A, 48B, 417, 476, |
| Cases cited: Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 243 CLR 319 |
| Applicant: | AOB18 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 297 of 2018 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 14 March 2018 |
| Date of Last Submission: | 12 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Tully |
| Solicitors for the Applicant: | Hall & Willcox |
| Counsel for the Respondent: | Ms J Davidson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Notice of Objection to Competency made on 19 February 2018 is upheld.
The application made on 6 February 2018 is dismissed.
The applicant pay the respondent’s costs set in the amount of $7,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 297 of 2018
| AOB18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
On 6 February 2018 the applicant filed an application said to be made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of what is said to be the decision of the Minister’s delegate (“the delegate”) made on 2 February 2018 to the effect that there was no protection barriers to the applicant’s removal from Australia.
The Minister subsequently filed a Notice of Objection to Competency on 19 February 2018 (“NOC”). The Minister asserted that this Court has no jurisdiction to hear the application because no “migration decision” has been made such as to invoke the Court’s jurisdiction pursuant to s.476 of the Act.
Before the Court
The evidence before the Court filed by the Minister is as follows:
a)The affidavit of Hervee Dejean, solicitor, made on 23 February 2018, including annexures (no objections).
b)The affidavit of Hervee Dejean, solicitor, made on 6 March 2018, including annexures (no objections).
The evidence before the Court filed by the applicant is as follows:
a)The affidavit of Stephen Klotz, solicitor, made on 6 February 2018, including exhibit “SHK-1” (no objections).
b)The affidavit of Stephen Klotz, solicitor, made on 27 February 2018, including annexures [this was admitted provisionally, subject to relevance. It relates to an application for an injunction which is not currently pressed].
c)The affidavit of Stephen Klotz, solicitor, made on 12 March 2018, including annexures (no objections).
d)The affidavit of Stephen Klotz, solicitor, made on 27 June 2018, including annexures [this was admitted into evidence pursuant to orders made by consent on 2 July 2018 and is the subject of further written submissions by the parties].
The Minister also tendered a copy of a letter from his department to the applicant dated 31 August 2015 (no objections), marked as “RE1”.
The hearing of the NOC occurred on 14 March 2018. Both parties were represented by counsel. The matter was reserved at the conclusion of the hearing.
On 27 June 2018, the applicant made an Application in a Case (“AIC”) through which he sought leave to put further evidence before the Court, and for the parties to make written submissions in relation to that evidence. The Minister filed a Response to the AIC on 29 June 2018. This indicated that the Minister did not oppose the AIC, on the basis that he had the opportunity to provide written submissions on the proposed new evidence.
On 2 July 2018, I made orders, by consent, granting leave to the applicant to reopen his case to tender a further document, being the document marked as “Annexure A” to the affidavit of Stephen Klotz of 27 June 2018, and granting leave to the applicant and the Minister to file short further written submissions by 2 July 2018 and 13 July 2018 respectively. Both parties filed further written submissions.
Background
The Minister has set out the background to the substantive application, as relevant to the NOC, at [3] – [7] of his written submissions filed on 6 March 2018 (“the Minister’s first written submissions”). Having regard to the evidence before the Court, and the applicant’s counsel’s reliance on the Minister’s summary before the Court, I am satisfied that this is a fair summary and rely on it for the purposes of this judgment as follows:
“[3] The applicant arrived in the Cocos (Keeling) Islands on 17 September 2012 as an unauthorised maritime arrival.[1] On 31 August 2015, the applicant was invited to apply for a temporary protection (subclass 785) (TPV) or Safe Haven Enterprise (subclass 790) visa (SHEV),[2] as the Minister had determined to lift the bar pursuant to s 46A(2) of the Act in order to allow him to lodge a valid application. On 25 January 2017, the applicant was sent a reminder letter referring to the previous invitation to lodge a TPV or a SHEV, noting that no application had been received and requiring him to lodge an application within 60 days. On 30 March 2017, the applicant was sent a further reminder letter. No application was subsequently received. The applicant was detained on 7 September 2017 pursuant to s 189 of the Act.[3] The applicant was subsequently informed, orally and in writing, that on 1 October 2017, the Minister proposed to revoke or cancel the determination to lift the bar under s 46A(2) and that this meant that if he did not lodge an application by 1 October 2017, he would be unable to make a valid application.[4] On 25 September 2017, the applicant signed an acknowledgement that he had received a last notice of the 1 October 2017 deadline.[5] The applicant failed to lodge a TPV or SHEV application by 1 October 2017.
[4] On 24 October 2017, Sarah Dale, Principal Solicitor of the Refugee Advice and Casework Service (RACS), advised the then Department of Immigration and Border Protection (Department), providing notice that RACS acted for the applicant and that he was raising claims for protection.[6] On 1 November 2017, the Department informed the [applicant] that despite his failure to lodge an application for a TPV or SHEV prior to the 1 October 2017 deadline, the Department would consider whether Australia owed any non-refoulement obligations in respect of the applicant.[7] On 8 November 2017, RACS requested that the Minister exercise the power under s 46A(2) of the Act, in order to enable the applicant to make a valid visa application.[8]
[5] By letter sent by email on 27 December 2017, RACs wrote to the Department,[9] referring to the 1 November 2017 letter from the Department and requesting that consideration of Australia’s non-refoulement obligations “be made with a purpose of considering lifting the bar under s46A”[10] and providing, inter alia, a statement of protection claims and a SHEV application form.[11] On 8 January 2017, the Department provided the applicant with a letter headed “Notification of invalid application for a Temporary Protection (subclass 785) visa”.[12] The same day, the Department advised by email that it would consider whether Australia owed any protection obligations in respect of the applicant, including consideration of the new information provided on 27 December 2017.[13] On 17 January 2018, an officer of the Department advised that the invalid visa application of December 2017 had been taken to be a request for Ministerial intervention pursuant to s 46A(2) of the Act, that it had been assessed against the s 46A(2) guidelines, and that it did not meet the guidelines as a case to be referred to the Minister, so that the request had been finalised by the Department without referral to the Minister.[14]
[6] On 24 January 2018, RACS sent a letter to the Department, requesting the use of a “non-statutory process such as a protection obligations assessment is used to inform the Department about whether to refer [the applicant’s] case to the Minister for lifting of the bar under s46A(2)”; referring to information as to the applicant’s inability to make a protection visa application prior to the 1 October 2017 deadline supplied on 8 November 2017 in a letter requesting Ministerial intervention under s 46A; and making further submissions about the applicant’s protection claims.[15] This letter was taken to be a request for Ministerial intervention pursuant to s 46A(2) of the Act. An officer of the Department completed an “Informed Referral to Status Resolution” document, considering the information supplied by letter on 24 January 2018, on 25 January 2018 and a more senior officer of the Department agreed with the assessment contained in that document on 30 January 2018.[16]
[7] On 2 February 2018 an officer of the Department responded to the letter of 24 January 2018, advising that that letter had been taken to be a request for Ministerial intervention under s 46A(2) of the Act, that it had been assessed against the Minister’s s 46A(2) Guidelines, and found not to meet those guidelines as a case to be referred to the Minister. The letter advised that the request had been finalised without referral to the Minister.[17] It is this letter that is said by the applicant to constitute the “decision” impugned in the proceedings and is the subject of the relief sought in the amended application.”
[1] See affidavit of Stephen Howard Klotz affirmed 6 February 2018 (in support of application as originally filed) (Klotz Affidavit) at [6].
[2] See Exhibit SHK-1 to Klotz Affidavit at p 65 (email to Sara Dale dated 8 January 2018).
[3] See Klotz Affidavit at [6], Exhibit SLK-1 at p 65.
[4] See Exhibit SLK-1 at p 65.
[5] Annexure HD3 to the Affidavit of Hervee Dejean affirmed 6 March 2018.
[6] Annexure HD4 to the Affidavit of Hervee Dejean affirmed 6 March 2018.
[7] Annexure HD5 to the Affidavit of Hervee Dejean affirmed 6 March 2018.
[8] Annexure HD6 to the Affidavit of [Hervee Dejean] affirmed 6 March 2018.
[9] Exhibit SLK-1 at p 1.
[10] Exhibit SLK-1 at p 2.
[11] Exhibit SLK-1 at p 4-62.
[12] Exhibit SLK-1 at p 63.
[13] Email dated 8 January 2018, Exhibit SLK-1 at p 65.
[14] Exhibit SLK-1 at p 68.
[15] Exhibit SLK-1 at p 69-77.
[16] Annexure HD7 to the Affidavit of Hervee Dejean affirmed 6 March 2018.
[17] Exhibit SLK-1 at p 78.
I also note, as was raised by the applicant before the Court, that further correspondence was sent on behalf of the applicant to the Minister’s department, following the letter of 2 February 2018.
On 2 February 2018, the applicant’s then representative wrote to the Minister’s department requesting copies of all documents and information relating to the assessment of Australia’s protection obligations to the applicant (see page 79 of exhibit “SHK-1” to Mr Klotz’s affidavit of 6 February 2018).
On 5 February 2018, the applicant’s then representative sent a further letter to the Minister’s department which sought to provide documentary evidence in support of the applicant’s compelling reasons for failing to make an application by 1 October 2017.
The Notice of Objection to Competency
The ground of the NOC is in the following terms:
“There has been no ‘migration decision’ and therefore s 476 of the Act is not engaged.
Particulars
a. The applicant seeks review of a ‘decision’ said to be contained in a letter dated 2 February 2018 (letter)
b. By the letter, a delegate of the respondent informed the applicant that correspondence from the applicant was being treated as a request for Ministerial Intervention under s 46A(2) of the Act, and that the matter was finalised without referral to the respondent
c. The letter was not a decision pursuant to s 46A of the Act, or any other provision under the Act: Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 363 at [54]
d. The letter therefore did not contain a ‘migration decision’ and this Court has no jurisdiction to consider the application: AOA16 v Minister for Immigration and Border Protection [2017] FCA 697 at [12].
Section 476 of the Act is in the following terms:
“Section 476
Jurisdiction of the Federal Circuit Court
(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C, 501CA;
(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3) Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4) In this section:
‘primary decision’ means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period; or
(c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).”
The term “migration decision” as it appears in s.476 of the Act is defined in s.5 of the Act as follows:
“Section 5
‘migration decision’ means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non-privative clause decision; or
(d) an AAT Act migration decision.”
The terms of the letter of 2 February 2018 included the following (see page 78 of exhibit “SHK-1” to Mr Klotz’s affidavit of 6 February 2018):
“This correspondence was taken to be a request for ministerial intervention under section 46A(2) of the Migration Act 1958.
Your request was assessed against the Minister’s section 46A(2) Guidelines, and found not to meet these guidelines as a case to be referred to the Minister.
The Department undertook an assessment of [the applicant’s] claims for protection against current country information. This assessment concluded that there were no protection barriers to [the applicant’s] removal.
[The applicant] has also not provided objective documentary evidence in support of any compelling and compassionate reasons that were beyond his control for missing the application deadline of 1 October 2017.
Australia takes its non-refoulement obligations seriously and does not remove people who engage its non-refoulement obligations.
Your request has been finalised without referral to the Minister.”
It is convenient first to focus on the reasons the Minister says the application to the Court is not competent.
The Minister’s argument initially directs attention to the correspondence of 8 November 2017 (see annexure “HD6” to Ms Dejean’s affidavit of 6 March 2018) and 24 January 2018 (see page 69 of exhibit “SHK-1” to Mr Klotz’s affidavit of 6 February 2018) from the applicant’s previous representative to the Minister.
I note that both the letters of 8 November 2017 and 24 January 2018 make reference to s.46A of the Act. For current purposes however, it is the letter of 2 February 2018 from the Minister’s department to the applicant’s then representative on which the applicant now relies, to say that a “migration decision” under the Act has been made, and is reviewable by this Court (see above at [16]).
The letter of 2 February 2018 states that it is sent in response to the correspondence of 24 January 2018. Given the reference in the heading of the letter of 24 January 2018 (“Section 46A, non-refoulement and submissions on protection claims”), and its contents, it was reasonably open to the Minister’s department to treat this letter as a request for the Minister to intervene under s.46A(2) of the Act. I did not understand the applicant to take issue with that characterisation now (see further below).
In that context, the Minister’s argument relies on the following.
One, s.46A(2) of the Act is in the following terms:
“Section 46A(2)
Visa applications by unauthorised maritime arrivals
…
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.”
Two, by virtue of s.46A(3) of the Act, the power in s.46A(2) of the Act may only be exercised by the Minister personally.
Three, the Minister does not have a duty to consider whether to exercise that power (s.46A(7) of the Act).
The Minister referred to a number of authorities which he said provided the context, and subsequently, the direction, to this Court as to how to determine the objection to competency, given the facts of this case (see further below).
In particular, these are cases in which the High Court considered the exercise of the Minister’s non-compellable powers and with relevant reference to s.46A of the Act.
One, Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 123 ALD 244 (“Plaintiff M61”). In that case, the High Court held that the Minister had made a decision to consider the exercise of his non-compellable powers. The Minister thereby required the officers of his department to undertake necessary enquiries to inform that consideration.
Two, Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636; (2012) 130 ALD 1 (“Plaintiff S10”). In that case, the plaintiff’s (“applicant’s”) argument was that the drafting of the guidelines as to when the Minister may consider exercising non-compellable powers was itself a decision by the Minister to consider exercising those powers.
The High Court in Plaintiff S10 (at [41]), per French CJ and Kiefel J, distinguished Plaintiff M61 on the basis that in that case, the focus was on inquiries made after the Minister had decided to consider exercising his non-compellable powers.
In that case, the plurality (per Gummow, Hayne, Crennan and Bell JJ) took a different approach as follows (Plaintiff S10 at [91]):
“The terms of the guidelines provide criteria to distinguish between requests which will not be referred to the Minister and those which may be referred to the Minister for consideration whether to exercise the relevant power. By these directions the Minister has determined in advance the circumstances in which he or she wishes to be put in a position to consider exercise of the discretionary powers by the advice of department officers. It was within the competence of the Minister to do so. - 84 The effect, as the Commonwealth Solicitor-General put it in oral argument, is that the adoption of the guidelines by the Minister represents decisions by the Minister that if a case is assessed as not meeting the guidelines, the Minister does not wish to consider the exercise of the dispensing power, and if a case is assessed favourably then the Minister does wish to consider that exercise.”
[Footnotes omitted.]
Three, ultimately in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29; (2016) 259 CLR 180; (2016) 333 ALR 653 (“SZSSJ”) on a unanimous basis, the High Court considered the relevant principles to be drawn from Plaintiff M61 and Plaintiff S10. For current purposes, what can relevantly be drawn from this is as follows.
The Minister’s non-compellable powers (which are contained in various provisions in the Act, and with application to s.48B of the Act), contain two decision-making steps, that is, a “procedural decision” and a “substantive decision” (SZSSJ at [53]). The first is a decision to consider making a substantive decision. The second is the substantive decision to, relevantly, “lift the bar” (relevantly in the current case pursuant to s.46A of the Act).
In the current case, the Minister asked the Court to note that the High Court in SZSSJ reconciled the “views” expressed in Plaintiff S10 as follows. The “status” of the processes followed by officers of the Minister’s department to assist the Minister in his or her consideration of the possible exercise of a non-compellable power, depends on whether those processes are adopted before, or after, a “procedural decision” has been made.
In short, conduct before a procedural decision has been made is not conduct “under the Act”, whereas conduct after a procedural decision has been made does have such a character.
Drawing on this proposition, the Minister’s argument was that the Court should find in the circumstances presented, that, as a fact, the Minister had not taken any step in relation to the applicant to make a decision to consider whether to make a “substantive decision” about “lifting the bar” pursuant to s.46A of the Act in relation to the applicant. Therefore, the Court’s jurisdiction is not invoked in this case.
The applicant’s position in response cannot be said to be a direct attack on the Minister’s reasoning as set out above. Rather, it was a layered presentation of a number of interrelated elements which the applicant argued led to the conclusion that the Court’s jurisdiction was invoked under s.476 of the Act.
While the applicant’s written submissions were comprehensive, his oral submissions before the Court, helpfully, extracted a number of issues that he said resolved the matter of the Court’s jurisdiction.
The applicant relied on various correspondence between the Minister’s department and the applicant’s former solicitors and sought to relate these to the exercise of the power under s.46A(2) of the Act.
In short, the applicant’s argument was that these communications, and in particular, a document headed “Informal Referral to Status Resolution” (“IRSR”) dated 30 January 2018 (see annexure “HD7” Ms Dejean’s affidavit of 6 March 2018) (“the IRSR document”) reveal that the officers of the Minister’s department engaged in conduct that was “more than mere administrative processes” such that it would inform the Minister’s exercise of the power under s.46A of the Act.
The letter of 2 February 2018 makes reference to an assessment having been made as against the “Minister’s s.46A(2) Guidelines” (the s.46A(2) guidelines”), and that the Minister’s department conducted an assessment of the applicant’s claims for protection as against available country information.
Further, when regard is had to the IRSR document, the Minister’s departmental officer conducted an assessment of Australia’s non-refoulement obligations to the applicant. This was done with particular reference to the matters as also set out in s.36(2)(aa) and s.5 of the Act. The applicant submitted that this was conduct that engaged the Act.
The applicant relied on Plaintiff S10 at [113] – [114] (per Heydon J) to submit that there was a distinction between an assessment of the s.46A(2) guidelines, and the assessment of an individual’s particular circumstances.
In this light, the applicant argued that an examination of the IRSR document itself (with its references to the applicant’s personal circumstances, and the consideration of the applicant’s claims to protection as they derive from those circumstances as against country information), is, to a high degree, similar to an assessment of Australia’s non-refoulement obligations as they are set out at s.36(2)(aa) of the Act (and with reference to the definitions in s.5 of the Act).
In support of his argument, the applicant relied on Plaintiff S10 at [93] (per Gummow, Hayne, Crennan and Bell JJ) for the proposition that such an assessment of Australia’s non-refoulement obligations can be linked to the exercise of authority conferred by this Act. Therefore, this was said to provide the basis for the argument that a “decision” under the Act was made. That is, by virtue of what is set out in the letter of 2 February 2018.
Further, it was argued that this can also be linked to s.46A(2) of the Act because this assessment conducted by the departmental officer is potentially relevant to the Minister’s exercise of power pursuant to s.46A(2) of the Act.
The difficulty for the applicant’s argument in the current case is that it derives from an initial focus on the conduct of the departmental officers (that is, the processes undertaken by them) and an attempt to characterise that conduct from these processes, instead of focusing, initially, on the Minister.
As set out above, the applicant relied on Plaintiff S10. While his submissions did make some reference to the subsequent High Court judgment in SZSSJ, they did not satisfactorily engage with the consideration by the High Court in that case with the principles to be drawn from both Plaintiff M61 and Plaintiff S10.
As set out above, as was made clear in SZSSJ, the character, or status, of departmental conduct in the context of the exercise of a
non-compellable power (such as, relevantly, s.46A(2) of the Act), derives from the temporal distinction between the time prior to a procedural decision made by the Minister, and the time after.
As set out above, conduct engaged in before a procedural decision has been made has no statutory foundation. This is in contrast to conduct engaged in after such a decision has been made.
This then directs attention as to whether the Minister has made such a procedural decision. Whether the Minister has made such a decision, personally, is a question of fact (SZSSJ at [55]).
In this light, whatever the language used in the IRSR document, it cannot, of itself, give that document the character for which the applicant now argues. As the Minister correctly submitted, the wording of the IRSR document is not determinative of the current question.
In this light also, any similarities between what was set out in the IRSR and an assessment of Australia’s International Treaty Obligations as they are set out in s.36(2)(aa) of the Act, do not assist the applicant in circumstances where, on the evidence, it cannot be said the Minister otherwise made a relevant personal procedural decision at some time prior to 2 February 2018, or for that matter, after that date.
Nor is it possible to reasonably infer from the IRSR document, or indeed any other evidence before the Court, that the Minister made such a personal procedural decision.
At best, the applicant’s argument appears to be that of Plaintiff M61, Plaintiff S10 and SZSSJ, Plaintiff M61 is most relevant to the current circumstances because it focused on s.46A of the Act. The applicant was unable to satisfactorily explain how the principles enunciated in SZSSJ excluded the understanding of the operation of all of the Minister’s
non-compellable powers under the Act, including relevantly, for current purposes, s.46A of the Act.
The applicant did not dispute that in the current case there was no apparent Ministerial announcement, as there was in Plaintiff M61, which formed an important factual element of the relevant matrix for the disposition of that case.
However, he argued that “the department’s” conduct (in relation to the IRSR), and the Minister’s earlier decision in August 2015 to invite the applicant to apply for a protection visa, is comparable to the Ministerial announcement in Plaintiff M61, that the applicant’s claims to protection (in that case) would be considered.
The difficulty for the applicant is that he has not satisfactorily explained how this earlier invitation can be said to connect to the “decision”, which he said was made under the Act on 2 February 2018.
On the evidence before the Court, the applicant was invited by the Minister on 31 August 2015 to validly apply for either a temporary protection visa, or a Safe Haven Enterprise Visa (“SHEV”), as a result of having determined to “lift the bar” to this being done pursuant to s.46A(2) of the Act.
The applicant made no such applications pursuant to that invitation. As set out above, he was sent a “reminder” on 25 January 2017, and given 60 days to make his application. A further reminder was sent to him on 30 March 2017. No application was made in this time.
The applicant was subsequently detained (and placed in immigration detention) on 7 September 2017. He was given notice that on 1 October 2017 the Minister proposed to revoke or cancel the determination to “lift the bar” under s.46A(2) of the Act. He was told he could still make a valid application until that date. The applicant signed an acknowledgement on 25 September 2017 that he had received this notice. The applicant made no application by that date.
In his submissions now the applicant has not satisfactorily explained how the “lifting of the bar” in 2015, could be said to provide a necessary procedural decision in relation to the decision said to have been made on 2 February 2018 in circumstances where the Minister revoked that earlier decision in 2017.
As at 1 October 2017, that procedural step no longer existed, such that it could be said that the Minister’s department’s subsequent conduct was taken in the context of, or a result of, a procedural decision by the Minister to consider whether to make a “substantive decision”. To the contrary, the revocation of the “lifting of the bar” on 1 October 2017 was a statement by the Minister that he was not going to consider making any substantive decision.
For the sake of completeness, I also note that there was no dispute that the adoption by the Minister of the s.46A(2) guidelines did not constitute a decision by the Minister of the type explained in SZSSJ such as to say the Minister’s department’s subsequent conduct arose from a statutory context.
In the current case, the applicant was given over two years to make his necessary application. He did not do so. He was given reasonable notice that the Minister would revoke the opportunity for him to do so. Again, he failed to make any application within the relevant period.
There was no argument now from the applicant that the revocation of the earlier decision by the Minister to “lift the bar” was anything other than an effective and valid revocation.
There is nothing in the subsequent correspondence between the applicant’s then representative and the Minister’s department to suggest, or indicate, that the Minister had made a procedural decision to “lift the bar” pursuant to s.46A(2) of the Act relevant to the decision said to have been made on 2 February 2018. If anything, the applicant’s then representative’s correspondence appears to proceed on the basis that what had transpired in the past had no ongoing effect beyond 1 October 2017. The correspondence was focused on a “new” process of seeking to have the bar lifted pursuant to s.46A of the Act.
In all therefore, in the current case, I find on the evidence that it is not possible to say, with reference to the letter of 2 February 2018, that the Minister had made a procedural decision such that the Minister’s department’s subsequent conduct, including what was set out in the letter of 2 February 2018, attained some statutory basis which would give rise to the Court’s jurisdiction to review a decision under s.476 of the Act.
I agree with the Minister, that while focused on a different
non-compellable power, the case of AOA16 v Minister for Immigration & Ors [2017] FCCA 189 to which he referred, provides a “comparable” direction for the disposition of the current issue.
In that case, the applicant had sought Ministerial intervention pursuant to s.417 of the Act (another non-compellable power). The request was not referred to the Minister because after assessment by the Minister’s department, the request did not meet the Ministerial guidelines such that it should be referred.
The applicant in that case sought judicial review of the “decision” to not refer his request to the Minister. This Court held it had no jurisdiction. On appeal, the Federal Court upheld that determination (see AOA16 v Minister for Immigration and Border Protection [2017] FCA 697 (“AOA16”)).
Importantly, for current purposes, the appellate Court found that the Minister had not made a “migration decision” under the Act such that it was therefore reviewable by this Court.
The Minister referred to the following part of the appellate Court’s reasoning in support of his argument (AOA16 at [11]):
“The majority in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 had described directions given by the Minister as the Minister having “determined in advance” the circumstances in which the Minister wished to be put in a position to consider the exercise of discretionary powers. At [91] the majority said:
The terms of the guidelines provide criteria to distinguish between requests which will not be referred to the Minister and those which may be referred to the Minister for consideration whether to exercise the relevant power. By these directions the Minister has determined in advance the circumstances in which he or she wishes to be put in a position to consider exercise of the discretionary powers by the advice of department officers. It was within the competence of the Minister to do so. The effect, as the Commonwealth Solicitor-General put it in oral argument, is that the adoption of the guidelines by the Minister represents decisions by the Minister that if a case is assessed as not meeting the guidelines, the Minister does not wish to consider the exercise of the dispensing power, and if a case is assessed favourably then the Minister does wish to consider that exercise.
(Footnote omitted.)
Whether or not the Minister has made a decision to consider or to exercise a discretionary power is a question of fact. The High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 363 considered the decision in Plaintiff S10/2011 and said at [47]-[57]:
[47] Members of the Court, with the possible exception only of Heydon J, interpreted the guidelines as directed to when the Department was to refer cases to the Minister in order to allow the Minister to decide whether or not to consider exercising a non-compellable power: where the Department had not referred a case to the Minister, no statutory power had been engaged; where the Department had referred a case to the Minister and the Minister had indicated that he would “not intervene”, the Minister had made a personal decision that he would not consider exercising any of the noncompellable powers.
[48] The unanimous conclusion of the Court was that in none of the cases was the process undertaken by the Department or the decision of the Minister conditioned by any requirement to afford procedural fairness.
[49] Gummow, Hayne, Crennan and Bell JJ, having listed supporting statutory indicia,27 stated that conclusion in terms that “[u]pon their proper construction and in their application to the present cases”, the provisions conferring the relevant non-compellable powers were “not conditioned on observance of the principles of procedural fairness” for the reason that the Act revealed a “necessary intendment” that “the provisions are not attended by a requirement for the observance of procedural fairness”.
[50] French CJ and Kiefel J said:
With no statutory duty to consider the exercise of the Minister’s powers being enlivened by a request or by the occurrence of a case to which the power might apply, no question of procedural fairness arises when the Minister declines to embark upon such a consideration. If, on ministerial instructions, certain classes of request or case are not even to be submitted to him or her for consideration, the position in law is unchanged. There is no exercise of a statutory power under the Act conditioned upon compliance with the requirements of procedural fairness.
[51] Heydon J said:
The structure of the Act suggests that the powers which the empowering provisions confer on the Minister need not be exercised in compliance with the rules of procedural fairness. It would be strange if the activities of officials of the Minister’s Department preparatory to the Minister either deciding whether to consider exercising those powers or deciding to exercise them would have to comply with the rules of procedural fairness.
[52] Three principles are to be drawn from Plaintiff M61/2010E and Plaintiff S10/2011 concerning the construction and relevant application of ss 48B, 195A and 417 of the Act.
[53] First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.
[54] Second, processes undertaken by the Department to assist in the Minister’s consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister’s consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister’s instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.
[55] Third, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact.
[56] Here, on the unchallenged finding of the Full Court, the Minister has made a personal procedural decision to consider whether to grant a visa under s 195A and s 417 of the Act or to lift the bar under s 48B in the case of each applicant for a protection visa affected by the Data Breach. The ITOA processes have been undertaken by officers of the Department to assist the Minister in that consideration. An ITOA is accordingly properly characterised as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417 of the Act.
[57] That characterisation of an ITOA, as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417, informs the resolution of the issue whether procedural fairness was required in the process. The same characterisation also informs the resolution of the issue whether the Federal Circuit Court had jurisdiction.
(Footnotes omitted.)
It follows from these passages that the Minister’s statutory power under s 48B had not been engaged where the department had not referred a case to the Minister. The inclusion of the detailed minute concerning s 48B in the materials referred to the Minister was expressly stated not to be a referral to the Minister for his consideration of the s 48B request. Whatever the author of the minute may have intended by the use of the word “holistic” (see A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225, 231, Federal Commissioner of Taxation v Lamesa Holdings B.V (1997) 157 ALR 290; 296, Tech Mahindra Ltd v Commissioner of Taxation (2015)101 ATR 755 [58]; see also definition of “holistic” in Oxford Dictionary of English (3rd Ed) as “parts of something [being] intimately interconnected and explicable only by reference to the whole” (philosophy)), and whatever the reader of the minute may have understood by the word “holistic” as used in the minute, the author made clear that the s 48B material was not being sent to the Minister for the Minister’s consideration under s 48B, and the Minister did not consider the request under s 48B. The only decision of the Minister concerning s 48B which he may have made was a decision not to consider the exercise of a non-compellable power of a kind mentioned in Raikua v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 370; (2007) 158 FCR 510 at [62]- [64] (referred to by the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 363 at [72]) which was not a decision made under the Act. Such a decision may be reviewable, as the Minister submitted, in the original jurisdiction of the High Court but not by the Federal Circuit Court by reason of s 474(7) of the Act.”
There is nothing in the current case to indicate that the Minister’s department had referred the applicant’s case to the Minister such that it could be said that the Minister had made a “procedural decision” of the type explained in SZSSJ.
In oral submissions, the applicant argued that a finding that the Court had no jurisdiction in this matter would deprive the applicant of the opportunity for judicial review.
That may well be the case as far as this Court is concerned. However, I cannot see how this consequence, while unfortunate for the applicant, can confer jurisdiction on this Court as it arises from s.476 of the Act.
As noted above, following the hearing on 27 June 2018, the applicant filed an Application in a Case (“AIC”) seeking to put before the Court an affidavit attaching the departmental submissions on the matter of “revocation” (as referred to above) (“the departmental submissions”). The applicant was granted leave by consent, and both parties made further written submissions.
The applicant submitted that some of the language in the departmental submissions (see [10] at page 3 of annexure “A” to Mr Klotz’s affidavit of 27 June 2018) confirms that it is analogous to an assessment of Australia’s International Treaty Obligations (“ITOA”).
The argument is that the ITOA is an assessment of barriers to removal arising from Australia’s protection obligations. Therefore, the argument continued, the IRSR is, as with the ITOA, within the exercise of the power under s.46A of the Act (SZSSJ at [45]). Therefore, the Court similarly has jurisdiction to review. I agree with the Minister that the applicant’s submission does not add to the argument already before the Court.
Again, the applicant’s argument in this regard does not satisfactorily explain how, on the evidence, it can be said the Minister has made a personal procedural decision to consider the applicant’s case, or indeed, given what is set out in the document (at [10]), a class of persons to whom the applicant may belong.
For the reasons already set out above, the conduct involved in the drafting of the departmental submissions does not, of itself, provide a basis for saying there has been conduct in preparation for the making of a substantial decision. Ultimately, as the Minister correctly submitted, the guidelines which are attached to the departmental submissions make clear that if a person does not meet the guidelines, the case should not be referred to the Minister for consideration of relevantly, his exercise of the power under s.46A(2) of the Act.
This aligns with what was said by the Federal Court in AOA16 at [11] (see above).
Conclusion
In all, the Minister’s NOC is upheld as this Court lacks jurisdiction to consider the substantive application made to it. The substantive application to the Court is therefore dismissed on the basis that it is not competent. I will make the appropriate order.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 26 September 2018
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