Aur23 v Commonwealth of Australia (No 2)
[2023] FCA 1440
•21 November 2023
FEDERAL COURT OF AUSTRALIA
AUR23 v Commonwealth of Australia (No 2) [2023] FCA 1440
File number(s): VID 932 of 2023 Judgment of: WHEELAHAN J Date of judgment: 21 November 2023 Catchwords: MIGRATION — where previous general duty judge granted an interim injunction prior to the commencement of a proceeding, to restrain the deportation of the (now) applicant, which was to continue indefinitely subject to further order if an originating application filed – where the applicant filed an originating application seeking to compel the Secretary of the Department to bring before the Minister a request for Ministerial intervention under ss 46A and 48B of the Migration Act 1958 (Cth) – where respondents filed an interlocutory application seeking the discharge of the injunction on the basis that the request had been communicated to the office of the Minister – where, after the making of that interlocutory application, the Minister refused to intervene in exercise of the ss 46A and 48B powers – where the executive intended to remove the applicant from the country on 21 November 2023, subject to the injunction being discharged – where the applicant sought leave to amend his originating application to challenge the Minister’s decision not to intervene on grounds of apprehended bias, irrelevant considerations, and improper purpose or, alternatively, that the Departmental officer’s referral of the applicant’s request to the Minister was ineffective because it resulted in a decision affected by jurisdictional error – where granting the respondents’ interlocutory application would have the effect of eliminating the subject-matter of the claim on a summary basis and with limited argument – respondents’ interlocutory application dismissed – leave to amend the applicant’s originating application granted Legislation: Federal Court of Australia Act 1976 (Cth), s 23
Migration Act 1958 (Cth), ss 46A, 48B, 198, 351, 476A
Federal Court Rules 2011 (Cth), r 39.05
Cases cited: AUR23 v Commonwealth of Australia [2023] FCA 1394
AUR23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1349
BP Chemicals ANZ Pty Ltd v Manildra Starches Pty Ltd [1997] FCA 1189
CNY17 v Minister for Immigration[2019] HCA 50; 268 CLR 76
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; 288 FCR 23
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 408 ALR 381
Ebner v Official Trustee in Bankruptcy[2000] HCA 63; 205 CLR 337
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCAFC 223; 283 FCR 602
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 47 Date of hearing: 20 November 2023 Counsel for the Applicant Ms L De Ferrari SC Solicitor for the Applicant Human Rights for All Counsel for the Respondents Dr S Hartford Davis Solicitor for the Respondents Australian Government Solicitor ORDERS
VID 932 of 2023 BETWEEN: AUR23
Applicant
AND: COMMONWEALTH OF AUSTRALIA
First Respondent
SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS
Second Respondent
ORDER MADE BY:
WHEELAHAN J
DATE OF ORDER:
21 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The respondents’ interlocutory application, filed 17 November 2023, is dismissed.
2.By 4.00 pm on 5 December 2023, the applicant have leave to file and serve an amended originating application so as to amend paragraphs 1 and 2 of the details of claim, substantially in the form of the draft furnished to the Court on 20 November 2023.
3.Pursuant to s 37AI(1) of the Federal Court of Australia Act 1976 (Cth), an interim non-publication order is made with respect to each of the following documents tendered at the hearing conducted on 20 November 2023:
(a)the entire affidavit of Hervee Dupont Dejean, dated 17 November 2023, which was marked as exhibit R1;
(b)the entire affidavit of Alison Mary Battisson, dated 20 November 2023, which was marked as exhibit A2; and
(c)Annexure AMB-3 to the affidavit noted in sub-paragraph (b), above, which was separately tendered and marked as exhibit R2.
4.By 4.00 pm on 24 November 2023, the legal practitioners for the parties are to confer and to provide, by way of email to the Chambers of the Hon. Justice Wheelahan, a joint short minute describing the parts of the documents, referred to in the sub-paragraphs to order 3, over which permanent non-publication orders should be made pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) and shall furnish redacted copies of the relevant documents for the purposes of being available for public inspection.
5.The costs of all applications be costs in the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHEELAHAN J:
Before me in a Duty Judge capacity is an interlocutory application lodged by the respondents on Friday 17 November 2023 to discharge an order made by Hespe J made on 10 November 2023 which restrained the respondents from removing the applicant from Australia: AUR23 v Commonwealth of Australia [2023] FCA 1394. Subject to the outcome of the respondents’ application, the applicant is scheduled to depart Australia for Jordan later today, 21 November 2023. The proposed departure date is of some importance to the respondents because on 23 October 2023, the Jordanian embassy issued a temporary travel document for the applicant, which is valid only until 23 November 2023.
Background
The applicant is a citizen of Jordan who is an unlawful non-citizen currently in immigration detention. He arrived on Christmas Island in 2013. In 2017, the applicant sought a protection visa which was refused by a delegate of the Minister. The delegate’s decision was subsequently affirmed by the Immigration Assessment Authority in December 2018. The applicant did not seek judicial review of the Authority’s decision, and was taken into immigration detention in February 2022.
Subsequently, on 11 January 2023 the applicant made a request for Ministerial intervention under ss 46A and 48B of the Migration Act 1958 (Cth) to “lift the bar” so as to enable him to make a further application within the migration zone for a protection visa. The powers of the Minister under these provisions are special powers which may be exercised only personally, where the Minister thinks that it is in the public interest to do so. By their terms, the Minister is not obliged to consider exercising the power, or whether it is in the public interest to do so, and under no circumstances can the Minister be compelled to exercise the powers: s 46A(7); s 48B(6); Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 408 ALR 381 (Davis HCA) at [12] (Kiefel CJ, Gageler and Gleeson JJ) and [98] (Gordon J) in relation to s 351 of the Act which is relevantly indistinguishable. However, because the powers are only exercisable in the public interest by the Minister personally, the Minister cannot delegate the decision to exercise or not to exercise the power by reference to public interest criteria, thereby requiring or permitting officers of the executive government to make a decision that only the Minister may make: Davis HCA at [28] (Kiefel CJ, Gageler and Gleeson JJ), [66], [97], [101] (Gordon J), [194] (Edelman J), [254] (Jagot J).
The applicant’s January 2023 request for Ministerial intervention was made by his migration agent, who is his representative in this proceeding. The application was made on the basis of claimed new information giving rise to new or additional protection claims that warranted further consideration. The new information included new grounds on which the applicant claimed that he feared persecution and would be at risk of significant harm should he be returned to Jordan, and on the ground that after he made his protection visa application, a protection visa was granted to the applicant’s father in October 2017 following which the applicant’s parents and four of his siblings have settled permanently in Australia.
On 18 January 2023, the applicant was advised by the Department that his request for Ministerial intervention had been assessed against the Minister’s Guidelines, that it did not meet the Guidelines, and that the request was finalised by the Department without referral to the Minister.
On 23 March 2023, the applicant was given a removal notice by members of Australian Border Force advising him that his removal from Australia was imminent. The applicant then commenced a proceeding on 28 March 2023 in the New South Wales District Registry of the Court, NSD 277 of 2023, seeking judicial review of the decision that he did not meet the Minister’s Guidelines, and an injunction to restrain his removal from Australia. Shortly after the applicant commenced that proceeding, on 12 April 2023 the High Court published its decision in Davis HCA. Subsequently, on 5 September 2023, the Minister accepted that the decision not to refer the applicant’s request for Ministerial intervention to the Minister was made in excess of power, with the consequence that the applicant’s request was yet to be finalised.
On 19 September 2023, the applicant’s representative sent a letter by email to the Department of Home Affairs and to the Minister for Immigration, Citizenship and Multicultural Affairs, and the Minister for Home Affairs stating that it was assumed that the applicant’s application for Ministerial intervention would be brought to the attention of the relevant Minister within a reasonable period of time, and requesting advice if that assumption was incorrect. The submission in support of the application was stated to be attached to the email. The applicant’s representative received a pro-forma email response giving a reference number, and stating that the correspondence would be noted by the Department of Home Affairs which, in some cases, may be asked to respond on the Minister’s behalf.
On 22 September 2023, orders were made by consent dismissing proceeding NSD 277 of 2023. The Minister was later ordered to pay the applicant’s costs of the proceeding on the ground that the applicant was almost certain to have succeeded: AUR23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1349 at [21] (Cheeseman J).
On 1 November 2023, the applicant was given a further notice of intention to remove him from Australia. The applicant’s representative then sought on 6 November 2023 an undertaking that the Department would not remove the applicant from Australia until it had referred his request for Ministerial intervention to an appropriate Minister under the Act. The request for the undertaking was refused.
The applicant then approached the Court seeking the interlocutory injunctive relief that was granted by Hespe J. It was accepted before her Honour that as at 9 November 2023, there had been no referral of the applicant’s request by an officer of the Department to the Minister for consideration, and that there were no lawful instructions from the Minister not to bring to his attention the existence of requests based on objectively ascertainable criteria. The evidence of the respondents was that the Department’s intention was to remove the applicant as planned and that he was scheduled to depart Australia on 11 November 2023. In these circumstances, Hespe J held that –
(1)The applicant had an arguable case that there was a compellable duty to refer his request for intervention to the Minister, citing Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; 288 FCR 23 (Davis FCAFC) at [259]–[262] (Charlesworth J) and [87] (Griffiths J), but noting that Besanko J at [52] and Mortimer J at [121]-[122] expressed reservations as to this conclusion, and that Kenny J did not address the question.
(2)On the assumption that there was such a compellable duty, removal of the applicant from Australia would negate that right and duty.
(3)Interlocutory relief could be given to preserve the subject matter to enable the applicant’s application for judicial review to be made.
(4)The balance of convenience favoured the granting of an injunction.
(5)The application for the interlocutory injunction would not be supportable if the applicant’s request was in fact referred to the Minister.
Hespe J granted an injunction in the following terms –
The prospective respondents, including by their servants and agents, be restrained from removing the prospective applicant from Australia:
(a)Until 4.00 pm on 20 November 2023; or
(b)If the prospective applicant files an originating application in relation to the subject matter of this application on or before 4.00 pm on 20 November 2023, subject to further order of the Court.
Plainly, her Honour’s orders were in aid of protecting the subject-matter of the proceeding in the exercise of the Court’s power to do so that is within the general powers in s 23 of the Federal Court of Australia Act 1976 (Cth).
The following events have occurred since 10 November 2023.
On 15 November 2023, the applicant filed an originating application in this proceeding seeking, amongst other things, a writ of mandamus compelling the Secretary to bring the applicant’s request for Ministerial intervention pursuant to s 48B of the Act to the attention of the Minister, and an injunction to prevent his removal from Australia while his request remained unreferred. The applicant also sought a declaration that, for the purposes of s 198(6) of the Migration Act, it was not reasonably practicable to remove the applicant from Australia for so long as his application for intervention was not brought to the attention of the Minister. The relief was sought on grounds including that –
(a)the Secretary had a duty to bring the applicant’s request for intervention to the attention of the Minister, and that this duty is enforceable by mandamus;
(b)the failure since 11 January 2023 to bring the request to the attention of the Minister amounted to a denial of procedural fairness;
(c)it was legally unreasonable for the applicant’s request to have been pending since 11 January 2023 and not to have been brought to the attention of the Minister; and
(d)for at least so long as the duty to bring the applicant’s request to the attention of the Minister remained unperformed, it was not “reasonably practicable” within the meaning of s 198(6) of the Migration Act for the applicant to be removed from Australia.
As with Davis HCA, to the extent that the originating application was directed to the exercise of executive power by an officer of the executive government of the Commonwealth, it is not concerned with a decision made, or proposed, or required to be made under the Migration Act, which would be excluded from the jurisdiction of this Court by s 476A(1).
Also on 15 November 2023, the applicant was given a further notice of intention to remove him from Australia, subject to the expiry or discharge of the injunction granted by Hespe J. The Australian Government Solicitor foreshadowed to the applicant’s representative that the applicant’s request for Ministerial intervention would be referred to the Minister before 20 November 2023, and that an urgent application would be brought to vacate the order of Hespe J.
On 16 November 2023, the applicant’s request for intervention was emailed by a Departmental Officer to the Departmental Liaison Officer to the Minister for Immigration, Citizenship and Multicultural Affairs together with a submission prepared for the Minister by an officer of the Department. An email in response stated that an adviser had confirmed that the Minister had received the submission, and that the Minister would consider it by 20 November 2023.
The respondents’ interlocutory application to discharge the orders of Hespe J was lodged late morning on 17 November 2023 with a request for an urgent hearing. By order, I fixed the interlocutory application for hearing for Monday 20 November 2023 at 10.15 am, which was yesterday.
On Saturday 18 November 2023, the Minister determined not to intervene in the exercise of his personal powers. I will return to identify some of the features of the Minister’s decision. The decision was conveyed to the applicant on Monday morning. In the meantime, on Sunday 19 November 2023, the practitioners for the parties emailed to my chambers a signed consent order by which the parties sought to have the Court discharge the order of Hespe J with effect from 4.00 pm on Monday 20 November 2023.
Later on Monday morning, and before I made any orders, the representative for the applicant advised that there had been some developments and requested that the orders not be entered. The representative for the applicant later advised that the applicant withdrew his consent to the orders and sought to amend the originating application to challenge the Minister’s decision, and sought an urgent hearing. In response, I relisted the respondents’ interlocutory application at 2.15 pm. Counsel for the parties appeared remotely, and the hearing concluded shortly after 5.00 pm.
At the hearing, there were three applications before the Court –
(a)the respondents’ formal interlocutory application to discharge the order of Hespe J;
(b)the applicant’s oral application for leave to file and serve an amended originating application; and
(c)an oral application by the applicant for further interim relief in the event that the respondents’ interlocutory application was successful.
Affidavit evidence was tendered on behalf of the respondents and the applicant. The issues argued on the three applications overlapped.
The respondents’ submissions
In support of the respondents’ application, counsel for the respondents commenced with the statement by Hespe J at [32] of her Honour’s reasons for judgment that the application for the interlocutory injunction would not be supportable if the applicant’s request for Ministerial intervention was in fact referred to the Minister. Counsel submitted that the circumstances since the making of the order on 10 November 2023 had changed because the foundation of the order made by Hespe J, being to preserve the subject-matter of the proceeding, had now fallen away because not only had the applicant’s request been referred to the Minister, but the Minister had exercised his power by personally refusing the applicant’s request.
The Minister’s decision
At this point, I will say a little more about the Minister’s decision. The record of the Minister’s decision takes the form of a signed indorsement on the cover of the submission that was provided to the Minister by the Department. The substance of the recommendation to the Minister was that he should agree to exercise his powers under s 46A and 48B of the Act to “lift the bar” to allow the applicant to apply for a protection visa. The submission was accompanied by decision instruments for the Minister to sign which provided for a window for the bar to be lifted of seven days from the time of notification to the applicant in relation to s 46A, which corresponded to the seven-day period provided for by s 48B(1). The submission was also accompanied by draft statements by the Minister to Parliament, which would be required by s 46A(4) and s 48B(3) of the Act in the event that the Minister made the determinations.
The Minister did not agree to the recommendations, and did not sign the determinations or the statements to Parliament.
The applicant’s submissions
Senior counsel for the applicant submitted that there was a sufficiently tenable case that the Minister’s decision was affected by jurisdictional error as to support an argument that the subject-matter of the proceeding remained alive, and that the respondents’ interlocutory application to discharge the injunction should be refused. The claimed jurisdictional error was put on three grounds –
(a)the Minister’s decision was affected by apprehended bias;
(b)the Minister had taken account of irrelevant considerations; and
(c)the Minister had made the decision for an improper purpose.
At the heart of these claims were submissions that the Minister’s decision was made in order to foreclose the relief sought by the applicant in this proceeding, that the decision was a device to avoid litigation, and because the purpose of the decision was to avoid the consequences of litigation, there had been no genuine consideration of the applicant’s claims in accordance with what was referred to as the purpose of the relevant provisions. There were several features of the Department’s submission to the Minister on which senior counsel for the applicant relied. The first was a passage above the recommendations which stated –
TimingFor consideration by 20 November 2023, as agreed with Alice [redacted] in order to progress the involuntary removal of [AUR23] at 9.25 pm on 21 November 2023.
The second feature was a section of the submission headed “Litigation Concerns” which referred to cases in this Court where injunctions to prevent involuntary removal had been granted where there was an unresolved request for intervention by the Minister. The submission continued –
Until these recent cases can be overturned, there is a concern that unresolved Ministerial Intervention requests can now be used to prevent involuntary removal. There could be a rolling series of requests to frustrate removal, and the backlog and volume of unresolved requests may impede orderly removal of some persons from Australia. For this reason, it is considered appropriate to escalate this request for your consideration.
Under the heading “Removal prospects” the submission stated –
As [AUR23] has been found to not engage Australia’s protection obligations, his involuntary removal to Jordan has been scheduled for 21 November 2023. [AUR23] has a travel document which is valid until 23 November 2023, however, it is not guaranteed that the Jordanian authorities will reissue a travel document should this one expire prior to his removal from Australia. Apart from the injunction, which may be able to be removed should you consider this Ministerial Intervention request, there are currently no other legal barriers to [AUR23’s] involuntary removal from Australia.
The submission to the Minister also referred in the body of the submission to the assessment made by the Department in January 2023, recording that the Department did not consider that the applicant’s request met the Guidelines for referral to the Minister, as the new information was not likely to engage Australia’s protection obligations. The submission to the Minister attached a copy of the Department’s assessment as an annexure. Senior counsel for the applicant submitted that this was irrelevant and prejudicial information to put before the Minister, which I understood to be an allusion to CNY17 v Minister for Immigration[2019] HCA 50; 268 CLR 76 where it was held that irrelevant and prejudicial information that had been placed before the Immigration Assessment Authority had given rise to a reasonable apprehension of bias on the “double might” test referred to in Ebner v Official Trustee in Bankruptcy[2000] HCA 63; 205 CLR 337.
Senior counsel for the applicant also sought to place reliance on the Guidelines of the former Minister for Immigration and Border Protection published on 5 December 2016 to submit that the submission to the Minister was not in accordance with those Guidelines. I must confess to having difficulty following this aspect of the applicant’s submissions.
The way in which senior counsel for the applicant submitted that the claimed jurisdictional error in the Minister’s decision had the consequence that there remained live subject-matter to this proceeding was complicated. It was accepted that this Court could not order the issue of a writ of certiorari to quash the Minister’s decision, and consequently the applicant’s application to amend the originating application to seek this remedy was abandoned. That was because it was accepted, at least for the purpose of this application, that the Minister’s decision was “a privative clause decision” or a “purported privative clause decision” and therefore a “migration decision” which was excluded from the jurisdiction of this Court by s 476A(1) of the Migration Act. It was submitted, however, that this Court had jurisdiction in relation to the claim for mandamus that was maintained against the Secretary. The applicant’s argument was that the Secretary had not discharged the compellable duty to refer the applicant’s request for Ministerial intervention if the Minister’s decision, in consequence of the submission that was put before the Minister, was affected by jurisdictional error, and was therefore a nullity. It was submitted that in these circumstances the compellable duty remained unperformed, and that the applicant’s claim remained alive.
I should say that these submissions were put on the premise that there is an arguable case that a compellable duty to draw a Minister’s attention to a request for intervention exists in reliance on the dicta of Charlesworth J and Griffiths J in Davis FCAFC. For the purposes of this application, this was not in issue.
Senior counsel for the applicant submitted that the exclusion of this Court’s jurisdiction by s 476A(1) of the Act “in relation to” a migration decision was no wider than the jurisdiction in public law remedies of direct judicial review of a migration decision. It was submitted that the exclusion did not include collateral attacks on a migration decision, citing McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCAFC 223; 283 FCR 602 at [15], [18] (Allsop CJ, Besanko J agreeing), and at [247] (Mortimer J). Thus, it was submitted that the applicant was not precluded from establishing that the Minister’s decision was affected by jurisdictional error as a step along the way to establishing the applicant’s claim for mandamus in relation to the executive action of the Secretary.
For the purposes of these urgent applications, I will act on the assumption that the Court has jurisdiction to entertain the applicant’s collateral attack on the Minister’s decision in the way submitted by the applicant. There is not the time to give those submissions more detailed consideration.
Respondents’ submissions in reply
In response to the applicant’s claims, counsel for the respondents submitted that the applicant’s case was not sustainable when regard was had to the whole of the Departmental submission that was placed before the Minister, and that there was no serious question to be tried. Counsel pointed to the fact that the submission to the Minister had actually recommended that the bar be lifted. Counsel relied on the following statement of Kiefel CJ, Gageler and Gleeson JJ in Davis HCA at [14] in relation to s 351(1) of the Migration Act as being equally applicable to s 46A and s 48B –
… The procedural decision, no less than the substantive decision, involves “a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable given reasons to be pronounced definitely extraneous to any object the legislature could have had in view”. The power is not further divisible.
(Citation omitted.)
Counsel for the respondents submitted that having regard to the wide scope of s 46A and s 48B, there was no proper articulation as to why all the matters referred to in the submission to the Minister, including those relating to the timing of the submission, the departure arrangements, and the litigation background, were not relevant to the Minister’s consideration of the applicant’s request for intervention in the public interest. It was further submitted that there was no suggestion that the applicant’s new claims had not been fairly summarised in the submission to the Minister, and it was submitted that there was no impropriety in furnishing to the Minister the assessment of the applicant’s request for intervention that had been undertaken by the Department in January 2023.
Consideration
The Court’s power to discharge the order of Hespe J was not in issue. The power to do so arises under r 39.05(c) on the ground that the order was interlocutory, and under r 39.05(d) on the ground that it was an injunction. The terms of the order also contemplate that its duration was subject to further order. The principles which guide the exercise of the power to set aside an interlocutory injunction are well established, and were referred to by Finkelstein J in BP Chemicals ANZ Pty Ltd v Manildra Starches Pty Ltd [1997] FCA 1189 at 5 in the following terms –
First I need to determine the circumstances in which it will be proper for a court, other than a court of appeal, to revoke or vary an interlocutory injunction. There is no doubt that a court has power to revoke or vary any interlocutory order that it has made: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc & Anor (1981) 148 CLR 170 at 178. In the case of an order for an interlocutory injunction it is usual for the order to be expressed to be “until further order”, as in this case, or, if the order is not so qualified, that qualification will be implied: Chanel Ltd v Woolworth & Co Ltd [1981] 1 WLR 485 at 492. So it is that an application to vary or revoke an interlocutory injunction should be regarded as an exercise of the right conferred by the order itself.
Notwithstanding the fact that a court retains the power of revocation or variation, it has often been said that the power should be “exercised only sparingly”: Copping v ANZ McCaughan Ltd (1997) 67 SASR 525 at 569. The cases establish that an applicant must show some good reason for the court to intervene. Good reason will be shown where there has been some significant change of circumstances or where a party has become aware of facts which he or she could not reasonably have known at the time of the hearing: Adam P Brown 148 CLR at 178. Another instance is when there has been a change in the applicable law: Regent Oil Co Ltd v J.T. Leavesley (Lichfield) Ltd [1966] 1 WLR 1210. It might also be appropriate for the court to intervene if it appears that an injunction has an effect that is significantly different from that which was perceived to be its effect when the order was made. A court might also intervene when an injunction causes real and unwarranted harm either to a party or to a stranger to the suit: Cretanor Maritime Co Ltd v Irish Marine Management Ltd [1978] 1 WLR 966. No doubt other circumstances will arise when the power should be exercised. But the jurisdiction to revoke or vary an order should not be exercised when the real basis for the application is that the original order was wrongly made. Such an argument should be addressed to a court of appeal.
In this case, the ground that exists for setting aside the order of Hespe J is the significant change in circumstances. The change in circumstances has prima facie removed the premise on which the order was made, namely to preserve the applicant’s claim for mandamus. By making the submission to the Minister on 16 November 2023 in relation to the applicant’s request for intervention, the Department purported to do what the applicant claimed the Court should compel the Secretary to do. Having taken this step, in relation to the applicant’s claim as originally framed, there is no sufficient reason to leave the injunction in place.
That intermediate conclusion directs attention to the applicant’s claim that the application for an order for mandamus remains maintainable upon the basis that the Minister’s decision not to lift the bar was affected by jurisdictional error. At least on its face, the claim of jurisdictional error on any of the three grounds advanced might be said to be ambitious.
First, the occasion for the submission to the Minister and the referral of the applicant’s application for intervention was the applicant’s claim that there was a compellable duty to refer. There may be difficulty with a claim that the submission to the Minister and the Minister’s decision in these circumstances was for an improper purpose or affected by apprehended bias. On the other hand, the applicant would point to the reference to timing in the passage which I set out at [27] above, and rely on that passage and other circumstances to support a claim that the purpose of the decision, as it might appear to a fair-minded lay observer, was not a bona fide consideration of whether there were circumstances which would warrant lifting the bar in the public interest, but was made to expedite the applicant’s planned removal from Australia. There are obviously arguments against this, including that the timing of the decision was a necessary matter to bring before the Minister in order to explain why a decision – one way or the other – was desired expeditiously.
Second, it is significant that the recommendation made in the submission was that the Minister should lift the bar. It might be said that this recommendation is difficult to reconcile with the applicant’s claims. In substance, the submission of senior counsel for the applicant was that a recommendation to lift the bar was not the true import of the submission when regard was had to the reference to timing in the passage which I set out at [27] above and to other contextual features. The other contextual features might be said to include the absence of a path of reasoning in the submission as to why it was in the public interest to lift the bar, instead making reference to the Department’s assessment in January 2013 and to several reasons why the applicant’s new claims were not likely to engage Australia’s protection obligations.
Third, another difficulty for the applicant is the broad scope given to the exercise of a special personal power conferred on the Minister to be exercised in the public interest. This was referred to in Davis HCA at [14]. One can see that at least at a prima facie level, there was merit in the submissions of the respondents that it was difficult to see that anything in the submission to the Minister was extraneous to the lawful exercise of the powers. On the other hand it must be recalled that if the Minister enters upon the exercise of the non-compellable powers in s 46A and s 48B, then the exercise may be reviewable, as Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 establishes, where the Court held at [75] that once the Minister made a procedural decision to consider the exercise of the personal power under s 48B of the Act, then obligations of procedural fairness attached. The obligations of procedural fairness incorporate the requirement to make a decision free of apprehended bias.
For the above reasons, the applicant’s prospects of establishing jurisdictional error might be said to be speculative. However, for reasons to which I have alluded along the way, I do not think the arguments are so weak as to preclude the prospect of the applicant having some tenable claim. Experience shows that, sometimes, what appear to be speculative claims develop into better claims with more reflection, and with the benefit of further investigation, including the marshalling of evidence.
Events here have unfolded very quickly. The applicant was advised of the Minister’s decision only yesterday morning, and oral argument on the applications proceeded promptly at 2.15 pm yesterday afternoon and continued until just after 5.00 pm. This timing was not of the applicant’s making. The Department has known since the decision in Davis HCA in April 2023 that decisions made by Departmental officers not to refer requests for intervention to the Minister for his personal consideration were vulnerable, yet referred the applicant’s request to the Minister only last Friday. This is not intended to be a criticism of the Department, but it is relevant to an appreciation of the urgent circumstances in which the applications were argued and the constraints on those arguments that existed by reason of the timing.
I have considered the submissions of the respondents concerning the limited window in which the applicant’s travel papers operate, and the perceived difficulties in getting renewed papers from the Jordanian embassy. I do not give those matters much weight. The evidence about those difficulties was impressionistic, and hearsay. It appears that there have already been occasions on which the applicant’s travel papers were renewed, and I cannot draw any reliable conclusion that they would not be renewed again if the occasion arose. Moreover, these matters carry little weight against the prejudice that the applicant would suffer supposing that he has a viable claim in this proceeding. If I were to discharge the order of Hespe J, it is the respondents’ intention to have the applicant removed from Australia later today, which would then remove any utility in challenging, even by the collateral means proposed, the Minister’s decision not to lift the bar. In the exercise of my discretion, I do not think it appropriate in the special circumstances of this case which I have described, to bring about finality to the matter in this way by effectively eliminating the subject-matter of the claim on a summary basis and with such limited argument.
Conclusions
For the above reasons I dismiss the respondents’ interlocutory application to discharge the order of Hespe J, and I give the applicant leave to file an amended originating application substantially in the form proposed. I will also make interim non-publication orders in relation to some of the documents that were tendered to protect the identity of the applicant, with a requirement that the legal practitioners for the parties confer in relation to redactions and final non-publication orders. The proceeding will now be allocated to a judge of the Court by the National Operations Registrar in the normal course.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. Associate:
Dated: 21 November 2023
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