Appellant M70 of 2006 v Minister for Immigration and Citizenship & Anor

[2009] HCATrans 162

[2009] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S120 of 2009

B e t w e e n -

APPELLANT M70 OF 2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Defendant

MR SEAN LEYDEN

Second Defendant

Application for an order to show cause

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JULY 2009, AT 9.34 AM

Copyright in the High Court of Australia

HER HONOUR:   Gentlemen, in the time since the hearing of this matter was concluded I have not had an opportunity to prepare a judgment.  I intend to give my judgment orally.  I am conscious that will take a little time having regard to the number of issues that were canvassed on the hearing.  I note both you gentlemen have your solicitors present.  I do not know what other commitments you have.  It would be no discourtesy if you leave the matter in the hands of your solicitors.

The plaintiff applies for orders nisi for constitutional writs and for declaratory and injunctive relief.  His amended application was filed on 3 July 2009. 

The plaintiff is a citizen of Sri Lanka.  He arrived in Australia on a tourist visa on 22 September 2005.  On 4 November 2005 he applied for a protection visa.  He claimed to have a well‑founded fear of persecution should he return to Sri Lanka for reasons of his political opinions.  His fear arose as the result of harassment and threats directed to him in connection with his role as a union organiser with a trade union that is affiliated to the United National Party (“UNP”) and his longstanding association with the UNP.

The plaintiff’s application for a protection visa was refused by a delegate of the first defendant, the Minister for Immigration and Citizenship (“the Minister”).  He sought a review of the delegate’s decision before the Refugee Review Tribunal (“the RRT”).  On 18 April 2006 the RRT affirmed the delegate’s decision.  The plaintiff unsuccessfully applied for judicial review of the RRT’s determination.  Thereafter he made a number of requests for ministerial intervention pursuant to the personal, non‑compellable powers that are conferred on the Minister under the Migration Act 1958 (Cth) (“the Act”)

The proceedings were commenced following the outcome of the plaintiff’s fourth request for ministerial intervention. This request was submitted on the plaintiff’s behalf by Luke Pistol and Christopher Yoo. Mr Pistol is a legally qualified volunteer working with an organisation called Balmain for Refugees. The request was emailed to the Ministerial Intervention Unit of the Department of Immigration and Citizenship on 27 May 2009. It asked the Minister to exercise his power under ss 417 or 48B of the Act (“the 27 May request”).

On Friday, 29 May Mr Pistol was notified that the 27 May request had been assessed as not falling within the guidelines issued by the Minister to assist officers of the Department in dealing with such requests (“the guidelines”) and that it would not be referred to the Minister for his consideration.

The second defendant, Sean Leyden, is the Director of the Refugee and Humanitarian Branch, Victoria, of the Department.  He is the officer who determined that the 27 May request would not be referred to the Minister.  In coming to the conclusion that the request did not come within the guidelines he stated his agreement with the assessment made by an officer that is recorded in a Minute dated 29 May 2009 (“the 29 May Minute”).  The plaintiff’s immigration history, protection claims, the findings of the RRT and the claims made in the plaintiff’s earlier requests for ministerial intervention were summarised in the 29 May Minute.

The proceedings were commenced on 1 June 2009.  A submitting appearance was filed on the second defendant’s behalf.  The proceedings came before the Court on the evening of 1 June and were stood over on the plaintiff’s application to 5 June.

On 5 June the proceedings were adjourned to 19 June by consent in order to permit consideration of a further request submitted on the plaintiff’s behalf for ministerial intervention under ss 48B and 417 (“the 4 June request”). On 19 June the plaintiff was advised that the 4 June request had been assessed as falling outside the guidelines for referral to the Minister. The second defendant made this assessment. In arriving at this conclusion he agreed with the assessment of Viviana Barrio, the Manager of the Ministerial Intervention Unit, Victoria. Ms Barrio set out her reasons for her assessment in a minute dated 19 June 2009 to which she attached copies of the plaintiff’s protection visa application, the RRT decision, earlier Minutes dealing with requests for ministerial intervention and a document described as submission CE 2009/03527 (“the 19 June Minute”).

The proceedings were adjourned on the plaintiff’s application to 8 July to enable his legal advisers to consider the determination of the 4 June request. 

The plaintiff filed an amended application for an order to show cause on 3 July 2009.  By his amended application the plaintiff claims orders including that the defendants show cause why a writ of prohibition should not issue to the Minister and mandamus directed to the second defendant requiring him to act in accordance with the guidelines and according to law.

Subject to the provisions of s 48B, a non‑citizen who has been refused an application for a protection visa may not make a further application for a protection visa while in the migration zone: s 48A. Section 48B(1) confers power on the Minister, if the Minister thinks that it is in the public interest, to determine that s 48A does not apply to prevent an application for a protection visa made by a non‑citizen in the period stated in a written notice. It is a power that may be exercised only by the Minister personally: s 48B(2). The Minister is not subject to a duty to consider whether to exercise the power, whether he is requested to do so by the non‑citizen or by any person, or in any other circumstances: s 48B(6).

Section 417(1) confers power on the Minister, if the Minister thinks it is in the public interest, to substitute for a decision of the RRT another decision, being a decision that is more favourable to the applicant, whether or not the RRT had the power to make such a decision. The Minister is not subject to a duty to consider whether to exercise the power, whether he is requested to do so by the applicant or by any other person, or in any other circumstances: s 417(7).

The guidelines deal separately with the assessment of requests under ss 48B and 417. Those dealing with s 48B requests relevantly provide:

“171.1 Purpose

These ministerial guidelines are to be used by decision makers when considering whether to forward to the Minister cases that the Minister may wish to consider using the ministerial non‑compellable and non‑delegable power to allow a person to make a further [protection visa] application. 

…

173.4 Additional information presented

Purported further applications containing additional information, including changes in country circumstances, are to be referred in accordance with the agreed format to the Minister’s office for consideration if the information

·appears to be credible and

·is Convention related and

·enhances the applicant's chances of making a successful claim

and either:

·was not known to the applicant during the consideration of the previous application or

·is not known to the applicant but is now known to the department and is relevant to the claims or

·was available to the applicant but, for plausible and compelling reasons, was not provided earlier.  (This includes the situation of a person who previously applied as a member of a family unit of another person, and did not provide any specific claims to refugee status in their own right.)

The Guidelines identify 3 categories of what constitutes additional information:

·claims of refugee sur place – see section 174 Claims of refugees sur place

·other new claims provided by the applicant (which may or may not have been known to the applicant during consideration of the previous (PV) protection visa application) – see section 175 Other claims

·the 28 day time limit for lodging appeals to the Federal Court was exceeded through error or delay by detention centre staff – see section 176 Certain cases outside time limit for Federal Court. 

…

175  OTHER CLAIMS

175.1  Not previously available to the applicant

In considering these new claims and/or information, the decision‑maker should consider whether the new information appears to be credible and enhances the person’s chances of making a successful claim under the Refugees Convention.  It would be expected that such claims would not be inconsistent with claims made in the previous (PV) application.  There may, however, be cases where the person provides a plausible and acceptable explanation as to why the new claims are inconsistent with previous claims made.

Purported further applications meeting these Guidelines should be referred to the Minister’s office for consideration in accordance with the agreed format. 

175.2  Available to the applicant previously

In considering claims not presented in the previous application, the decision‑maker should keep in mind that the person has already completed a determination process that may have included merits review by the RRT.  The person, therefore, has had an opportunity to provide information that may have enhanced their chances of making a successful claim at any time during the course of the first application.  

If the decision‑maker considers that:

·the claims are credible and enhance the person's chances of making a successful claim under the Refugees Convention and

·the person has provided plausible and compelling reasons why the information was not provided during the consideration of the earlier application

the purported further application should be referred to the Minister's office for consideration in accordance with the agreed format.

…

178  RESPONSIBILITY OF DECISION‑MAKERS

178.1  Not a complete re-assessment

The decision‑maker should consider all relevant information currently available to them, including updated country information, in considering a purported further application for a protection visa. 

Decision‑makers should not engage in a complete assessment and decision at this stage, as a visa application has not been validly made.  They should, however, ensure that their consideration is consistent with Australia’s international obligations to prevent refoulement. 

178.2  If not within the Guidelines

If a purported further application or a request for Ministerial intervention under s 48B is considered as not meeting these Guidelines, it should not be referred to the Minister.  The decision‑maker is to send a standard 'no' letter to the person (or to the main person, if a family group). 
…

178.5  Time frames

Consideration, in accordance with these Guidelines, of a purported further application or request for ministerial intervention under s 48B should be completed in 2 working days from receipt in the department.”

The guidelines dealing with the assessment of requests for ministerial intervention, including under s 417(1), relevantly provide:

“INTRODUCTION

1.        PURPOSE OF THESE GUIDELINES

The purpose of these guidelines is to:

·explain the circumstances in which I may wish to consider exercising my public interest powers under … s 417 to substitute for a decision of a review tribunal a decision which is more favourable to the visa applicant(s).

·explain how a person may request my consideration of the exercise of my public interest powers and

·inform officers of the Department of Immigration and Citizenship when to refer a case to me so that I can decide whether to consider exercising such powers in the public interest. 

…

CASES WHICH ARE TO BE BROUGHT TO MY ATTENTION FOR CONSIDERATION

This Part comprises:

. section 9 Public interest

. section 10 Referral by a review tribunal

. section 11 Unique or exceptional circumstances.

…

17  REPEAT REQUESTS

If a request for me to exercise my public interest powers in respect of a person is received and I or another Minister has previously considered the exercise of the public interest powers (whether in a schedule or as a submission) in respect of that person (whether in respect of the person's present or any previous visa application), all subsequent requests in respect of that person are considered to be
‘repeat’ requests.

I generally do not wish to consider a repeat request.  Where I or a previous Minister has declined to intervene in a case, I generally expect that person to depart Australia.

In limited circumstances, a repeat request may be referred to me where the department is satisfied there has been a significant change in circumstances which raise new, substantive issues not previously provided or considered in a previous request, and which, in the opinions of the department, falls within the ambit of section 9 Public interest, section 10 Referral by a review tribunal and section 11 Unique or exceptional circumstances.  For other cases, the department should reply on my behalf that I do not wish to consider exercising my power.”

No challenge is made to the power of the Minister to issue guidelines in the form of the guidelines dealing with requests for intervention under ss 48B and 417.

The 27 May request included a submission prepared by Mr Pistol and Mr Yoo, which addressed issues arising from the RRT’s determination and which included additional material.  This material included accounts by the plaintiff’s mother of an incident that was said to have occurred on 8 February 2009 in which she was assaulted and threatened by persons asking for information about the plaintiff’s whereabouts.  The mother reported the incident to Police at the Warakopola Police Station and a copy of an extract from the Station’s Information Book dated 15 February 2009 was attached to the submission.

The officer assessing the 27 May request referred to the submissions made by Mr Pistol and Mr Yoo in the 29 May Minute.  The officer gave the following reasons for the conclusion that the 27 May request did not fall within the guidelines:

“In this request, new inconsistencies are apparent, in relation to [M70’s] transfer to the Trincomalee Depot, the circumstances in which he obtained his Australian visa, and the alleged attack on his mother.  This raises further concerns in relation to the credibility of [M70’s] assertions.  However, even if these claims were to be accepted, they do not enhance [M70’s] chances of making a successful protection claim.  They may indicate that he has suffered harm in the past, but do not demonstrate a risk that he would do so in the future, for a Convention-reason. 

[M70] has been in Australia for nearly four years.  He has provided no evidence he continues to be a supporter of the UNP, and would continue to be, if he returned to Sri Lanka.  Even if he did, country information does not provide a solid basis for concluding that he would be at risk of persecution on the basis of his political connections. 

Provincial council elections were held on 14 February 2009 to elect members to Sri Lanka’s Central Provincial Council.  [M70’s] home town of Matale is situated in the Central Province.  The ruling UPFA had a comfortable victory in this election, increasing its tally of seats to 36, from 30 in the previous elections in 2004.  The UNP lost seats, bringing their tally to 22. 

According to the World Socialist website, this campaign took place ‘in a political climate of fear, intimidation and de facto media censorship’.  Several instances of violence were reported in the lead‑up to the election, perpetrated by the UPFA against JVP and UNP party candidates and supporters.  There was also damage to UNP offices, homes and vehicles.

However, the pre‑election violence that occurred was generally directed towards UNP candidates, rather than general members.  [M70] has never been a candidate and there is no suggestion that he would be in the future.  In addition, there is no reason to indicate that he or his family would be at risk of further violence or harassment, given that the elections are over and the ruling party has had a resounding victory.

[M70] does not belong to one of the groups at risk of targeted human rights violations, as outlined in the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, April 2009. 

There is nothing in this request which enhances [M70’s] chances of making a successful protection claim. It therefore does not meet the guidelines for referral to the Minister for possible use of his section 48B power.

Reasons why the request does not fall within the section 417 Guidelines

[M70] has not provided new substantive issues not previously provided or considered in his earlier requests that bring his case within the guidelines for referral to the Minister under section 417.

As discussed above, there are serious credibility issues in relation to the claims concerning past harm suffered by [M70] and his mother on the basis of [M70’s] political involvement.  There is no independent evidence that [M70] is at risk of harm in Sri Lanka for reasons would engage Australia's obligations under the International Covenant for Civil and Political Rights (ICCPR) or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 
…

This request has not identified any other section 417 issues that were not explored in previous MI requests. It therefore does not meet the guidelines for referral to the Minister for possible use of his section 417 power.”

The 4 June request came about as a result of Mr Pistol obtaining a copy of a letter written by the Secretary General of the UNP, dated 25 May 2009, which confirmed the plaintiff’s longstanding support of the UNP and his history of abuse at the hands of opponents of the party. The Secretary General referred to the attack on the plaintiff’s mother on 8 February 2009 and asserted his belief that the plaintiff would be in mortal danger if returned to Sri Lanka. Mr Pistol forwarded a copy of the Secretary General’s letter to the Minister as an attachment to an email on 4 June. Mr Pistol’s covering letter was treated as a further request for ministerial intervention under ss 48B and 417.

On 12 June Ms Barrio wrote to Mr Pistol acknowledging his email of 4 June.  She advised that the plaintiff’s case “is currently being assessed against these guidelines”.  In an email dated 12 June attaching the letter Ms Barrio wrote:

“Please feel free to contact me if you require any information in relation to Ministerial Intervention processes regarding [M70].  I understand that Ms Francis Milne has communicated with the Minister’s Office enquiring about the progress of [M70’s] ministerial intervention request.  I would appreciate it if you could provide Ms Milne and Mr Christopher Yoo my details so they can ring me if they need to discuss further.”

On 16 June Mr Pistol had a telephone discussion with Ms Barrio.  His file note of that conversation includes the following:

“I asked if there were any concerns we needed to address in that application, because we would like a chance to respond to any concerns they had.  She said words to the effect ‘I’m doing the guidelines assessment now, it doesn’t appear to meet the guidelines.  I’m not sure anything further you say could change that.  I am intending to take this to the Director this afternoon but I am happy to consider anything further you send as long as it does not take any longer than this afternoon’.  She said words to the effect ‘A lot of things have been tested and presented and the minister has seen this twice.  There are no new claims’. 

I said words to the effect ‘we have concerns with the reasons the prior request did not meet the guidelines and I would like to raise those in a constructive way, because I think the prior decision will have a bearing on your current decision.’ I asked ‘Do you have a copy of the last decision?’  She replied ‘yes’. 

She said something to the effect ‘My decision does not depend on the last decision.  And that is before the courts.  What I did was examined the whole case and all the information that has been provided, including the RRT and the Protection Visa application and prior requests.  I did this over the weekend.  I went back to basics and did not rely on the last decision.’ 

I asked ‘did the information you consider include our intervention request of 27 May 2009?’.  She said ‘it included all the information including that’. 

I said words to the effect ‘we have concerns about the statement in the last decision at page 8 that even if all his claims were accepted he would not meet the UNHCR eligibility guidelines.  If his claims are accepted it seems to us he would fall into category four, in relation to his political activities, five in relation to his trade union activities and seven in relation to both.  We can’t see how it could be otherwise, and we specifically discussed this in our intervention request’.

Viviana then said words to the effect: ‘We might have different views to the UNHCR.  That is just a guide as to what categories of people at risk might be.  What we look at is if there is harm and a risk of future harm.  I can’t find any evidence that makes me believe he would be subject to harm.  There is nothing to suggest that if he returns he would be subject to inevitable harm.  In the last request the letter from the Secretary General doesn’t provide any new information.  It has already been assessed and considered, and he was asked questions about it at the RRT.”

Mr Pistol’s file note recorded a number of matters that he raised with Ms Barrio in support of his earlier submission.  The conversation concluded with Ms Barrio stating her willingness to consider anything sent to her by Mr Pistol.

On 16 June Mr Pistol and Mr Yoo sent a further letter to the Minister attaching nine letters in support of the plaintiff’s request and a copy of an extract from the Information Book of the Matale Hospital Police Station, dated 9 February 2009, which contained the plaintiff’s mother’s report to that station of the incident on 8 February.  The letter also contained a document containing an analysis of five claimed flaws in the reasoning in the 29 May Minute.

On 17 June Mr Pistol had a further telephone discussion with Ms Barrio.  His file note of this discussion records that Ms Barrio raised with him matters that she considered affected the credibility of the plaintiff’s claims and that he offered to ask the plaintiff about them.  Ms Barrio said that she needed the answers that day.  She offered to interview the plaintiff by telephone.  Mr Pistol said he would ask the plaintiff what he wanted to do.  In the result, Ms Barrio conducted two telephone interviews with the plaintiff who was being held in the Villawood Detention Centre.  These took place on 17 and 18 June.  Mr Pistol was present with the plaintiff at the Detention Centre throughout each of them.

In the 19 June Minute Ms Barrio recorded that she had perused the plaintiff’s protection visa application, the RRT decisions and material related to the plaintiff’s previous requests for ministerial intervention.  She attached copies of relevant decisions and previous requests, which she noted provided a comprehensive summary of the plaintiff’s case.  She said:

“I have found the information contained in the previous assessments and in the material presented to the Minister accurate, relevant and complete, the assessments in line with the guidelines provided by the Minister and the process is correct.  I do not intend to revisit the information previously provided unless it is relevant to the assessment of this current request.

I will not comment on claims made by Mr Pistol and Mr Yoo regarding processes in relation to the request of 28 May 2009 – these matters are currently before the Federal Court.”

Ms Barrio’s conclusion that the 4 June request did not come within the guidelines for s 48B requests was stated in these terms:

“I find that the information presented in this request was available to [M70] at the time of [protection visa] and RRT applications.  I do not find that there [are] any implausible or compelling reasons why it was not provided earlier.

Even if I were to find that there are plausible reasons for him not providing the information earlier, I also find that:

·the incident regarding the alleged LTTE members is not convention related.  If targeted by the LTTE as he claims, it was in relation to his attempts to fraudulently obtain a visa to come to Australia and finding out that there were weapons in the jewellery store.  There is no evidence to indicate that the attack was motivated by a convention related reason;

·the information provided in relation to 1) harm suffered at his workplace 2) the threats and treatment from Lal Aththanayake and 3) threats or harm to [M70’s] mother is connected to the convention related claims that [M70] pressed at [protection visa] and RRT stages.  It does not constitute new claims but provides additional information on claims assessed at the [protection visa] and RRT stages – threats, intimidation, harassment.  I am not satisfied that it would enhance [M70’s] chances of making a successful protection claim.  There is no new information that may raise any doubts on the conclusions reached by the delegate deciding the [protection visa] application and the RRT member that [M70] may have been harassed because of his political views and activities as a Union Representative and a UNP member, but the chance that he would be persecuted for reasons of his political opinion in the reasonably foreseeable future, were he to return to Sri Lanka, would be remote or insubstantial” (emphasis in original).

Ms Barrio’s conclusion that the 4 June request did not come within the s 417 guidelines was recorded in these terms:

“I do not find that there has been a significant change in circumstances, or that the case falls within the ambit of section 9, 10 or 11 of the guidelines, from the time the Minister considered [M70’s] case, first as a schedule on 11 May 2008 and more recently on 25 February 2009.

[M70] continues to have a strong subjective fear that he may be harmed if he returns to Sri Lanka.  However, he has not presented any claims that would indicate that there are substantial grounds for believing that there is a real risk that he will be subjected to violation of his rights as a necessary and foreseeable consequence of his return to Sri Lanka. 

… 

[M70] claims that he would be at risk from opponents to the UNP, given his profile as a trade unionist and political activist.  [M70] may have suffered harassment or been victimised in the past but there are no specific grounds to believe that he would be at risk if he returned to Sri Lanka.  Although [M70] clearly has a strong subjective fear of harm, I do not find any evidence that he would be subject to harm were he to return.”

Ms Barrio concluded:

“It is my assessment that:

·[M70’s] new request does not raise any substantive issues not previously provided or considered in his earlier requests that would bring his case within the guidelines for referral to the Minister under section 417.

·[M70] has not provided any new convention related information in this request that would enhance his chances of being successful in a protection visa application and therefore this request does not meet the guidelines for referral to the Minister under section 48B.”

As noted, the Minister is not under a duty to consider a request that he exercise his power under ss 48B and 417. Mandamus does not go to compel him to consider an application: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Plaintiff S134/2002 (2002) 211 CLR 441 at 361 [48] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ, 474 [100] per Gaudron and Kirby JJ; [2003] HCA 1.

The plaintiff claims prohibition to prevent the Minister from taking “any steps to implement or in reliance upon the effect of the decision of the Second Defendant”. The Act imposes a duty on officers of the Department to remove non‑citizens in the circumstances that are identified in sub‑s (6). This obligation may be relieved in a case in which the Minister determines that it is in the public interest to exercise his power under ss 48B or 417. However, the second defendant’s assessment that the 4 June request did not come within the Minister’s guidelines for referral to him of a request for intervention under either section is not a decision which the Minister implements or, relevantly, relies upon. The claim for relief directed to the Minister is misconceived and must be dismissed.

The grounds articulated in the amended application all rely upon the second defendant’s asserted failure to exercise his “public duty” in relation to his “decisions” made on 29 May and 19 June.  In the written submissions filed on the plaintiff’s behalf, three issues are identified as the “main jurisdictional errors”:

(i)       Denial of procedural fairness;

(ii)      Wednesbury unreasonableness;

(iii)     Improper purpose, in the sense explained by Aickin J in Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 233.

The plaintiff contends that it is arguable that the second defendant’s determination, that the request for ministerial intervention not be referred to the Minister, is subject to review on at least these grounds.  The Minister submits that his guidelines are policy statements setting out the circumstances in which he has determined that he may consider the exercise of his powers.  They impose no legal duty on officers of the Department and any assessment that a request does not come within them is not a decision affecting legal rights:  Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510 at 522 [64] per Lindgren J. It follows in his submission that mandamus cannot issue to the second defendant. Against the possibility that, contrary to the authority on which the Minister relies, the assessment of a request for ministerial intervention is susceptible of successful challenge, I turn to a consideration of the substantive merits of the plaintiff’s grounds.

In the written submissions filed on the plaintiff’s behalf it was asserted that there exists an arguable case that the plaintiff was denied procedural fairness when regard is had to matters that are identified in a detailed analysis of each of the five assessments of requests made for ministerial intervention.  By way of illustration, one matter concerned the Minute prepared by an officer in response to the plaintiff’s third request made on 12 March 2009.  Reference was made therein to information contained on the “World Socialist website” concerning the climate of fear surrounding the 2009 election campaign in Sri Lanka.  The plaintiff’s attention was not drawn to this document prior to the assessment of his request.  Broadly his contention is that Ms Barrio accepted the accuracy of information contained in earlier assessments in arriving at her assessment and to the extent that this included the assessments made by officers of matters of which the plaintiff had no notice, it was incumbent on her to draw these matters to his attention.

On the hearing the plaintiff conceded that officers of the Department do not come under an obligation to accord procedural fairness to persons making requests for ministerial intervention in every case.  His contention is that the representations made by Ms Barrio in the email addressed to Mr Pistol on 12 June and in her telephone discussion with him on 17 June conveyed that the process that she proposed to adopt in assessing the 4 June request was that matters that were of concern to her would be identified and that clarification would be sought from the plaintiff.  Although in the written submissions it is said that Ms Barrio failed to put to the plaintiff certain of the matters that she had raised with Mr Pistol in the telephone conversation of 17 June, these were not pressed as evidencing a denial of procedural fairness on the hearing.  This was a sensible concession.  The principal matter that was relied upon in the course of oral submissions was Ms Barrio’s failure to draw attention to her asserted perception that the information relating to the attack on the plaintiff’s mother on 8 February 2009 had been available to him at the time of his protection visa application and the RRT review.  This complaint depends upon a strained reading of Ms Barrio’s reasoning.  It is a matter to which I will return when addressing the second ground.  It affords no support to the plaintiff’s case of denial of procedural fairness.

In my opinion the plaintiff has not established an arguable case that any representation made by Ms Barrio in the course of her assessment of the 4 June request was such as to impose an obligation of procedural fairness having the content for which he contends.  Furthermore, the evidence is that the plaintiff had a full opportunity to deal with the various matters raised by Ms Barrio and with matters raised in the assessments of his earlier requests.

The plaintiff maintained on the hearing a contention that he was denied procedural fairness in the assessment of the 27 May request.  In the written submissions it is noted that he was not interviewed in relation to the matters raised in the 27 May request.  In light of the realistic concession that the making of a request for ministerial assistance may not, without more, give rise to any obligation of procedural fairness and in circumstances in which no representation was made to the plaintiff concerning the process that was to be adopted in dealing with the 27 May request, I do not consider that he has demonstrated an arguable case of denial of procedural fairness in the disposition of that request.  The submission that Ms Barrio took into account the assessment of the 27 May request contrary to representations made by her to Mr Pistol is without substance.  Ms Barrio’s representation was that she would make her own assessment.

The plaintiff submits that the second defendant’s determination that the 4 June request did not fall within the guidelines was unreasonable in the Wednesbury sense.  It is his case that Wednesbury unreasonableness is available to support the issue of the constitutional writs pursuant to s 75(v) of the Constitution. The Minister acknowledges that as a legal proposition the point is arguable. The Minister does not accept that in the context of the assessment of requests under his guidelines unreasonableness provides an avenue of judicial review. In any event, he submits that the evidence does not disclose an arguable case that the “decision” was Wednesbury unreasonable or irrational to the extent that the latter may afford a distinct ground of review.

The confined operation of review on Wednesbury grounds is explained in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37. The impugned decision is that of the second defendant which appears to have been based on Ms Barrio’s Minute and the documents that were attached to it. The decision was that the plaintiff’s repeat request did not fall within the guidelines for ministerial intervention under ss 48B or 417. The guidelines are expressed in broad terms. In the case of requests for intervention under s 417 they require the officer to be affirmatively satisfied that there has been a significant change in circumstances which raises new, substantive issues not previously provided or considered in a previous request and which, relevantly, are within the ambit of s 9 dealing with public interest or s 11 dealing with unique or exceptional circumstances. In the case of requests for intervention under s 48B that involve additional information the guideline requires the officer to be affirmatively satisfied of matters which include whether the additional information is credible and whether it enhances the applicant’s chances of making a successful claim for a protection visa. It is possible that additional information may be credible but not be assessed as enhancing the applicant’s chances of making a successful claim for a protection visa for reasons that are unconnected to that information.

The focus of the plaintiff’s case on this ground was irrationality in that the exposure of Ms Barrio’s reasoning in the 19 June Minute was said to reveal that her findings were without probative material and logical grounds:  Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 656-657 [145] per Gummow J. In particular the submission was directed to the way in which Ms Barrio dealt with information concerning the attack on the plaintiff’s mother. There were two strands to this challenge. Firstly, the plaintiff pointed to Ms Barrio’s finding, dealing with the s 48B guidelines, that “the information presented in this request” was available to the plaintiff at the time of his protection visa application and the RRT review. Since the application for the protection visa was submitted on 4 November 2005 and the RRT’s decision was given on 18 April 2006 it was irrational, so it is said, to conclude that information, which included that the mother was attacked on 8 February 2009, was available on the earlier occasions. If Ms Barrio intended by her reference to “the information presented in this request” to refer to the information concerning the attack on the mother that occurred on 8 February her reasoning would be palpably flawed. The Minute when read as a whole makes clear that Ms Barrio was under no misapprehension concerning the date of the attack on the mother. I do not infer that her reference to “the information presented in this request” was in the context intended to include the attack on the mother on 8 February 2009. So much is made clear by the reference to the harm to the mother in the balance of the 19 June Minute dealing with the s 48B request. Ms Barrio reasons that the evidence of the attack on the mother does not constitute a “new claim” but is additional information with respect to the claim to have a well‑founded fear of persecution on the ground of political opinion, which was the subject of the protection visa application that was reviewed by the RRT.

The second aspect of the challenge to the reasoning is to the basis of two conclusions; (i) with respect to the s 48B request, that there is no new information that may raise any doubts on the conclusion reached by the delegate and the RRT member that the chance the plaintiff would be persecuted for reasons of his political opinion in the reasonably foreseeable future are remote or insubstantial and (ii) with respect to the s 417 request, that there was no evidence that he would be subject to harm if he were to return to Sri Lanka.

I approach the application on the basis that in determining whether the plaintiff has demonstrated a case for the issue of an order nisi the second defendant is to be understood as having adopted Ms Barrio’s assessment set out in the 19 June Minute.

Ms Barrio’s reasons are not to be subject to fine textual analysis. Critical to her assessment of the request for s 48B intervention was the opinion set out in the highlighted passage of the Minute, that the information concerning the attack on the mother would not enhance the plaintiff’s chances of making a successful protection claim. It was an opinion formed by Ms Barrio against a background that included her review of the application for the protection visa and the RRT’s decision. In relation to the request for intervention under s 417, Ms Barrio concluded that there had not been a “significant” change in circumstances and that the request did not disclose “substantial grounds” for believing that there exists a real risk that the plaintiff will be subjected to violation of his rights as a consequence of his return to Sri Lanka.

The contention that the assessment of a request for ministerial intervention by a departmental officer is susceptible of successful challenge on the ground of Wednesbury unreasonableness or on a discrete ground of irrationality is not without difficulty. It is sufficient to observe that the plaintiff has not made out an arguable case for impugning the decision on such a ground. The “finding” that there is no evidence that the plaintiff would be subject to harm were he to return to Sri Lanka would appear to be in error since the evidence of the attack on the mother is some evidence of a risk of harm in this event. However, Ms Barrio’s assessment that the request does not fall within the guidelines is not one to be characterised as flawed by arbitrary, capricious or irrational reasoning nor by a patent error of such a character as to vitiate it. Ms Barrio took into account the information concerning the attack on the mother. She accurately summarised it in reviewing the “current request information”. She returned to it in that part of the 19 June Minute headed “Assessment against guidelines”. In the determination of whether the information would enhance the plaintiff’s chances of making a successful protection claim or bring him within the confined scope for referral of repeat requests under cl 17 of the s 417 guidelines Ms Barrio formed an opinion adverse to the plaintiff. The second defendant accepted that assessment. In my opinion it cannot be said that no officer acting reasonably could have formed such an assessment taking into account the whole of the material including the information concerning the attack on the mother.

In the written submissions filed on the plaintiff’s behalf it is asserted that:

“The evidence of Ms Barrio’s consideration of the Plaintiff’s request for Ministerial Intervention raises an arguable case that the actions of Ms Barrio involved the use of executive or administrative powers otherwise than for the purpose conferred by the terms of the instrument conferring the power, in the case [sic] the Ministerial guidelines”.

Relying upon the remarks of Aickin J in Re Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 233-4 the plaintiff’s submission is that “where there is a divergence from a set of guidelines which an administrator is obliged to follow and observe, that that would constitute an improper purpose”. No authority was cited for the proposition, which I do not accept. The factual material relied upon to support the claim of improper purpose in the written submissions identified eight matters that were said without more to demonstrate an arguable case. Seven of these matters are addressed in the Minister’s written submissions. I do not propose to go through them in these reasons. I accept that none of them gives colour to a claim of impropriety or indeed a claim of conduct foreign to the purpose of assessing the requests made by the plaintiff in accordance with the Minister’s guidelines. The eighth matter on which reliance was placed was referred to as the matter noted in par 44(j) of the plaintiff’s written submissions. On the hearing, the plaintiff made clear the reference is to the matter set out in par 43(j) of those submissions. This is a reference to the 29 May Minute. The complaint is that the author records that the pre‑removal medical report identified no significant health issues and that the plaintiff was assessed as being fit for travel. It is said that “this rather suggests that the assessment for fitness to travel was only based on the plaintiff’s physical health in circumstances where he is known to have serious mental health issues”. The record of the pre‑removal medical assessment set out in the minute provides no substance to a challenge that the second defendant was actuated by any “improper purpose” in his determination of the 27 May or 4 June requests.

In oral submissions the plaintiff characterised the challenge under the rubric of improper purpose as being an alternative expression of the ground which has at its heart the same factual substratum as the assertion that the determination of the 27 May and 4 June requests was tainted by Wednesbury unreasonableness.  There is no substance to the ground. 

Although not addressed in the lengthy written submissions filed in support of the application, a number of grounds additional to the “three main jurisdictional errors” are set out in the amended application. 

Ground 1(i) complains that the second defendant failed to properly construe the duty imposed upon him by the guidelines.  Accepting for present purposes that the second defendant came under any such duty, no basis is identified for the conclusion that he misunderstood the guidelines. 

Ground 1(ii) asserts that the second defendant did not consider the entirety of the plaintiff’s applications for intervention.  Nothing is identified in the evidence to support such a conclusion. 

Ground 1(v) asserts that the second defendant failed to take into account a relevant consideration, namely, that the plaintiff’s case fell within the guidelines.  It is sufficient to observe, as the Minister correctly contends, the assertion that the failure to conclude that the case was within the guidelines constituted a failure to take into account a relevant consideration is logically flawed.

Ground 1(vi) complains that the second defendant took into account irrelevant considerations, namely, that the plaintiff was to be removed on 2 June and that he had previously made requests for ministerial intervention. The latter cannot be characterised as an irrelevant consideration in light of the terms of cl 17 of the guidelines for the assessment of requests under s 417. The basis for the assertion that the second defendant took into account or gave excessive weight to the circumstance that the applicant was due to be removed on 2 July is obscure. No arguable case for impugning the second defendant’s assessment of either request arises from this ground.

The plaintiff claims declaratory relief based upon the grounds relied on in support of his claim for mandamus.  This claim fails for the reasons earlier given.  The claims for an injunction depend upon establishing an arguable case for the issue of the writ. 

For these reasons the amended application is dismissed with costs.

AT 10.24 AM THE MATTER WAS CONCLUDED