Baker v Commissioner of the Australian Border Force

Case [2020] FCA 836

FEDERAL COURT OF AUSTRALIA

Baker v Commissioner of the Australian Border Force [2020] FCA 836

File number: VID 380 of 2020
Judge: MORTIMER J
Date of judgment: 15 June 2020
Catchwords: ADMINISTRATIVE LAW – COVID-19 travel ban – where applicants requested exemption from travel ban to attend son’s wedding in New Jersey – where decision -maker refused exemption requests – whether decision-maker asked wrong question – whether decision-maker inflexibly applied policy – whether decision-maker failed to take into account relevant considerations – whether decision-maker failed to afford procedural fairness – application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13(2)

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth) ss 5-7

Biosecurity Act 2015 (Cth) ss 475, 477
Cases cited:

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123

Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173

Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
Date of hearing: 12 June 2020
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 71
Solicitor for the Applicants: Carina Ford Immigration Lawyers
Counsel for the Applicants: Mr M Guo
Solicitor for the Respondent: Australian Government Solicitor
Counsel for the Respondent: Mr P Knowles

ORDERS

VID 380 of 2020
BETWEEN:

ESTHER BAKER

First Applicant

CHARLES BAKER

Second Applicant
AND:

COMMISSIONER OF THE AUSTRALIAN BORDER FORCE

Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

15 JUNE 2020

THE COURT ORDERS THAT:

1.The name of the first applicant be amended to Esther Baker

2.The applicants be granted leave to rely on the further amended originating application annexed to these orders, with the exception that the second ground is to read as follows:

In respect of the decision of 7 June 2020, the decision-maker inflexibly applied policy or fettered its discretion without regard to the merits of the Applicants’ particular case, in refusing the applications on the basis that the proposed travel was for a wedding, or failed to take into account the relevant considerations of the reason for travel being both ‘urgent and unavoidable personal business’ and ‘compassionate or humanitarian grounds’, the wedding being for the Applicants’ son, and the religious significance of the wedding.

3.The application be dismissed.

4.The applicants pay the respondent’s costs of the application, to be…

Continue reading Baker v Commissioner of the Australian Border Force

Sign in free to access the full text

Details
AGLC
Baker v Commissioner of the Australian Border Force [2020] FCA 836
Case
[2020] FCA 836
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the applicants, Esther Szydlo Baker and Charles Baker, sought judicial review of the Commissioner of the Australian Border Force’s refusal to grant them exemptions from the travel ban imposed by the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020. The applicants, ultra-orthodox Jews, sought to travel to the United States to attend their son's wedding, which they argued was a significant cultural and religious obligation. The primary legal issues were whether the decision-maker erred in law by asking the wrong question, inflexibly applied policy, failed to consider relevant factors, and did not afford procedural fairness.

The court considered the statutory framework and the context of the COVID-19 pandemic, noting that the travel ban was part of an emergency regime. It found that the decision-maker did not make an error of law by asking the wrong question, as the statutory language was broad enough to encompass the decision-maker's assessment of the travel's appropriateness. The court also held that the decision-maker did not inflexibly apply policy or fail to consider relevant factors, as the decision-maker had engaged with the applicants' submissions and considered the risk to the Australian community. Finally, the court determined that procedural fairness was afforded, as the decision-maker considered factors relevant to the applicants' submissions without the need for further invitations for comment.

Based on the court's reasoning, the application for judicial review was dismissed. The applicants were ordered to pay the respondent's costs, with the amount to be determined by a Registrar if the parties could not agree within 28 days of the orders.

Orders

Orders of the court

1. The name of the first applicant be amended to Esther Baker

2. The applicants be granted leave to rely on the further amended originating application annexed to these orders, with the exception that the second ground is to read as follows:

In respect of the decision of 7 June 2020, the decision-maker inflexibly applied policy or fettered its discretion without regard to the merits of the Applicants’ particular case, in refusing the applications on the basis that the proposed travel was for a wedding, or failed to take into account the relevant considerations of the reason for travel being both ‘urgent and unavoidable personal business’ and ‘compassionate or humanitarian grounds’, the wedding being for the Applicants’ son, and the religious significance of the wedding.

3. The application be dismissed.

4. The applicants pay the respondent’s costs of the application, to be fixed by way of a lump sum.

5. In the absence of any agreement between the parties within 28 days of these orders, the question of an appropriate lump sum pursuant to paragraph 4 of these orders be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANNEXURE

Form 69 and 70

Rules 31.01(1), 31.11(1)

Further Amended Originating application for judicial review

and relief under section 39B Judiciary Act 1903

No. VID 380 of 2020

Federal Court of Australia

District Registry: Victoria

Division: General

Esther Szydlo Baker and another

Applicants

Commissioner of the Australian Border Force

Respondent

To the Respondent

The Applicant applies for the relief set out in this application.

The Court will hear this application, or make orders for the conduct of the proceeding, at the time and place stated below. If you or your lawyer do not attend, then the Court may make orders in your absence.

You must file a notice of address for service (Form 10) in the Registry before attending Court or taking any other steps in the proceeding.

Time and date for hearing: [Registry will insert time and date]

Place: [address of Court]

The Court ordered that the time for serving this application be abridged to [Registry will insert date, if applicable]

Date:

Signed by an officer acting with the authority of the District Registrar

Details of claim

The Applicants apply to the Court to review the decisions dated 7 June 2020 and 9 June 2020 of the Respondent purportedly pursuant to section 7 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (the Determination) which refused their applications to be exempted from section 5 of that Determination in relation to their proposed travel to the United States of America.

The Applicants are aggrieved by the decisions because it is their applications that werewas refused.

On the grounds set out below, the Applicants apply for the following relief under section 16 of the Administrative Decisions (Judicial Review) Act 1977, further or alternatively, section 39B of the Judiciary Act 1903:

1. The decisions of the Respondent or his delegate dated 7 and 9 June 2020 to refuse to grant the Applicants’ applications for an exemption from section 5 of the Determination be set aside.

2. The matter be remitted to the Respondent for determination according to law.

3. The Respondent pay the Applicants’ costs.

Claim for interlocutory relief

The Applicants also claim interlocutory relief.

1. The matter be listed for final hearing on an expedited basis, on or before 13 June 2020.

Grounds of application

1. The decision-maker made an error of law by asking the wrong question in determining the applications.

Particulars

a. In respect of the 7 June 2020 decision, Tthe decision-maker reasoned that there was no ‘critical reason’ for the Applicants’ proposed travel, when s 7 of the Determination instead contemplates an exemption being granted if there are ‘exceptional circumstances’.

b. In respect of the 7 June 2020 decision, Ffurther or alternatively to particular ‘a’, the decision-maker engaged in an evaluative exercise in weighing up the proposed travel with the purported risk created by the travel, when s 7 of the Determination provides that exceptional circumstances will have been demonstrated by the provision of ‘a compelling reason for needing to leave Australian territory’, without a further enquiry of weighing such a reason against the risk it might create.

c. In respect of the decision of 9 June 2020, the decision-maker reasoned that he or she was ‘of the opinion exceptional compassionate circumstances do not exist’, when s 7 of the Determination instead contemplates an exemption being granted if there are ‘exceptional circumstances’.

d. In respect of the decision of 9 June 2020, further or alternatively to particular ‘c’, the decision-maker engaged in an evaluative exercise in weighing up the proposed travel with the purported risk created by the travel, when s 7 of the Determination provides that exceptional circumstances will have been demonstrated by the provision of ‘a compelling reason for needing to leave Australian territory’, without a further enquiry of weighing such a reason against the risk it might create.

2. The decision-maker inflexibly applied policy or fettered its discretion without regard to the merits of the Applicants’ particular case, in refusing the applications on the basis that the proposed travel was for a wedding, or in respect of the decision of 7 June 2020, failed to take into account the relevant considerations of the reason for travel being both ‘urgent and unavoidable personal business’ and ‘compassionate or humanitarian grounds’, the wedding being for the Applicants’ son, and the religious significance of the wedding.

3. The decisions were was made without affording the Applicants procedural fairness.

Particulars

a. In respect of the decision of 7 June 2020, Tthe decision-maker took into account ‘the Australian Government’s restrictions on weddings and social gatherings and the potential risk to the Australian community’.

b. In respect of the decision of 7 June 2020, Nneither of these considerations were the subject of any invitation to the Applicants for comment.

c. In respect of decision of 9 June 2020, the decision-maker took into account ‘the risk posed to the Australian community’. This consideration was not the subject of any invitation to the Applicants for comment.

Applicant’s address

The Applicant’s address for service is:

Place: Carina Ford Immigration Lawyers, Level 5, 1 McNab Avenue, Footscray VIC 3011

Email: caf@carinafordlawyers.com

The Applicants’ address is 6 Talbot Avenue, Balaclava VIC 3183.

Service on the Respondent

It is intended to serve this application on the Respondent.

Date: 129 June 2020

Signed by Carina Ford

Lawyer for the Applicants

Schedule

No. VID 380 of 2020

Federal Court of Australia

District Registry: Victoria

Division: General

Applicants

Second Applicant: Charles Baker

Date: 9 June 2020

Background

Background to the litigation

The COVID-19 Determination was made on 25 March 2020, consequent upon a declaration under s 475 of the Biosecurity Act by the Governor-General on 18 March 2020 that a human biosecurity emergency exists in relation to COVID-19.FACTUAL BACKGROUND The applicants are ultra-orthodox Jews. They have nine children, three of whom live in the United States. In their first application for an exemption from s 5 of the Determination, the applicants referred to the following matters:(a)The applicants’ cultural and religious traditions require that they be at their son’s wedding.(b)The wedding ceremony is significant, because the couple are not allowed to live together before they are married and it is one of the cornerstones of Jewish life.(c)Any deferral of the wedding would put a significant strain on the relationship of the applicants’ son and his fiancée. In their second application, the applicants referred to the same matters. They sought to correct an alleged misapprehension on the part of the first decision-maker: namely, that there would be 350 people at the wedding, when in fact it is proposed there will only be 25. They also submitted that the first decision-maker applied the wrong test in determining their request. The same submission is now put by the applicants in their application for judicial review. The parties filed written submissions in this proceeding on 11 June 2020. The applicants read and relied on three affidavits of Ms Carina Ford, the lawyer with carriage of this matter on behalf of the applicants. The affidavits addressed the applicants’ applications and the applicants’ lawyers’ attempts to obtain more information about the respondent’s process for determining applications for exemptions. The respondent read and relied on an affidavit of Ms Peta Heffernan, the lawyer with carriage of this matter on behalf of the respondent. The affidavit contained information about the COVID-19 pandemic, the Determination, and the decisions made in relation to the applicants’ applications.THE REFUSAL DECISIONS The email by which the applicants were notified that their first exemption application was refused stated:Under the current global pandemic international travel is highly restricted to critical reasons only. Attendance at a wedding does not meet this criteria.I note that the applicants have provided details concerning the reception venue and package which is for up to 350 people. While the wedding in the US, I am taking into consideration the Australian Government’s restrictions on weddings and social gatherings and the potential risk to the Australian community.Based on the information provided I am not of the opinion the travel is appropriate to the risk posed to the Australian community. The decision to refuse the applicants’ second exemption request noted that the applicants had submitted that the first decision was “legally problematic”. The reasons for the second decision were as follows:While we understand this is a difficult time for the family, under the current global pandemic international travel is highly restricted to critical reasons only.In consideration of the facts demonstrated to me by the persons I am of the opinion exceptional compassionate circumstances do not exist to approve the applicant to leave Australian territory as the travel is not urgent or pressing. Neither attendance at a wedding nor the applicant’s willingness to abide by quarantine laws on return - should travel be granted - does not constitute a pressing need to travel.As stated in the letter from the lawyer the applicant’s family made the active decision from the outset to not move the wedding to another date that would avail the applicants to travel when travel bans were lifted. This was a decision made by the family in full view of the current travel bans and their cultural customs in place during this global pandemic.I am of the opinion the travel is not appropriate to the risk posed to the Australian community(Original emphasis.)

Evidence

Evidence Before The Court

The email requesting a decision be made states:We have attached the Commissioner Discretion departures form and relevant evidence provided by the requestor for your consideration.(Emphasis added.) Further, in the section headed “Attachments”, the following appears:Letter from Immigration lawyer stating that the family is of the Jewish culture and that cultural dictations dictate that the parents SHOULD be present at the marriage ceremony (page 2 paragraph 7) This evidence is ample indication that the delegate considered, in the sense of engaged with, the material presented by the applicants setting out their reasons or purposes for travel. The fact that the case officer’s summary does not refer to all the detail in the applicants’ application is not indicative of error; rather, it is consistent with the somewhat summary nature of the administrative process and the context of the Determination as part of an emergency regime. Thus, reliance on propositions such as those in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [52] and [62] are inapposite. Ground 2 fails. Even if ground 2 had been successful, I accept the respondent’s submissions that the fact of the second request and its refusal might weigh against the grant of relief. The second refusal document expressly referred to the statements of the applicants and their rabbi, and so the very matters the applicants contend should have been considered were subsequently considered by another delegate.Ground 3 This ground applies to both refusals. I reject the contention that there has been a denial of procedural fairness. In those circumstances, it is not necessary to decide whether s 7 of the Determination, read with s 477 of the Biosecurity Act, evinces an intention to exclude any obligation to afford procedural fairness. It is sufficient to assume favourably to the applicants that the power to grant or refuse an exemption under the Determination is conditioned by an obligation to afford procedural fairness. However, as the respondents submitted, the content of any procedural fairness obligation will depend on the statutory context: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26]. The s 7 exemption power will generally be exercised in circumstances of some urgency. While the applicants’ counsel sought to downplay the characterisation of urgency in the context of s 7, in my opinion “urgency” is an apt description. This is not a decision-making regime applicable in ordinary circumstances. It exists only because a national health emergency has been declared, on the basis of an international health emergency. The exercise of power under s 475 and then under s 477 is an emergency context. The travel prohibition in s 5 of the Determination is a sweeping and unprecedented prohibition, designed to reflect the seriousness of the declared emergency. As Ms Heffernan’s affidavit deposed, on 30 January 2020, the World Health Organisation declared a public health emergency of international concern, and on 11 March 2020, the World Health Organisation declared COVID-19 to be a pandemic: that is, an infectious disease outbreak that spreads on a global scale. Any international travel undertaken in that context is likely to have as one of its characteristics a sense of urgency.

Decision

Reasons for decision

The respondent read and relied on an affidavit of Ms Peta Heffernan, the lawyer with carriage of this matter on behalf of the respondent. The affidavit contained information about the COVID-19 pandemic, the Determination, and the decisions made in relation to the applicants’ applications.THE REFUSAL DECISIONS The email by which the applicants were notified that their first exemption application was refused stated:Under the current global pandemic international travel is highly restricted to critical reasons only. Attendance at a wedding does not meet this criteria.I note that the applicants have provided details concerning the reception venue and package which is for up to 350 people. While the wedding in the US, I am taking into consideration the Australian Government’s restrictions on weddings and social gatherings and the potential risk to the Australian community.Based on the information provided I am not of the opinion the travel is appropriate to the risk posed to the Australian community. The decision to refuse the applicants’ second exemption request noted that the applicants had submitted that the first decision was “legally problematic”. The reasons for the second decision were as follows:While we understand this is a difficult time for the family, under the current global pandemic international travel is highly restricted to critical reasons only.In consideration of the facts demonstrated to me by the persons I am of the opinion exceptional compassionate circumstances do not exist to approve the applicant to leave Australian territory as the travel is not urgent or pressing. Neither attendance at a wedding nor the applicant’s willingness to abide by quarantine laws on return - should travel be granted - does not constitute a pressing need to travel.As stated in the letter from the lawyer the applicant’s family made the active decision from the outset to not move the wedding to another date that would avail the applicants to travel when travel bans were lifted. This was a decision made by the family in full view of the current travel bans and their cultural customs in place during this global pandemic.I am of the opinion the travel is not appropriate to the risk posed to the Australian community(Original emphasis.) The text of the reasons for the two refusal decisions was also contained within internal Australian Border Force documents exhibited to Ms Heffernan’s affidavit, and also to Ms Ford’s affidavit. I discuss those documents below. It is sufficient to note here that those internal documents comprised a kind of brief or recommendation to the delegate who made each decision, as well as containing the decision itself and the brief reasons given for the decision.GROUNDS OF REVIEW By their further amended originating application, the applicants advance three grounds of review. The amendments remain underlined.1.The decision-maker made an error of law by asking the wrong question in determining the applications.Particularsa.In respect of the 7 June 2020 decision, Tthe decision-maker reasoned that there was no ‘critical reason’ for the Applicants’ proposed travel, when s 7 of the Determination instead contemplates an exemption being granted if there are ‘exceptional circumstances’.b.In respect of the 7 June 2020 decision, Ffurther or alternatively to particular ‘a’, the decision-maker engaged in an evaluative exercise in weighing up the proposed travel with the purported risk created by the travel, when s 7 of the Determination provides that exceptional circumstances will have been demonstrated by the provision of ‘a compelling reason for needing to leave Australian territory’, without a further enquiry of weighing such a reason against the risk it might create.c.In respect of the decision of 9 June 2020, the decision-maker reasoned that he or she was ‘of the opinion exceptional compassionate circumstances do not exist’, when s 7 of the Determination instead contemplates an exemption being granted if there are ‘exceptional circumstances’d.In respect of the decision of 9 June 2020, further or alternatively to particular ‘c’, the decision-maker engaged in an evaluative exercise in weighing up the proposed travel with the purported risk created by the travel, when s 7 of the Determination provides that exceptional circumstances will have been demonstrated by the provision of ‘a compelling reason for needing to leave Australian territory’, without a further enquiry of weighing such a reason against the risk it might create.2.In respect of the decision of 7 June 2020, The decision-maker inflexibly applied policy or fettered its discretion without regard to the merits of the Applicants’ particular case, in refusing the application on the basis that the proposed travel was for a wedding, or failed to take into account the relevant considerations of the reason for travel being both ‘urgent and unavoidable personal business’ and ‘compassionate or humanitarian grounds’, the wedding being for the Applicants’ son, and the religious significance of the wedding.3.The decisions were was made without affording the Applicants procedural fairness.Particularsa.In respect of the decision of 7 June 2020, Tthe decision-maker took into account ‘the Australian Government’s restrictions on weddings and social gatherings and the potential risk to the Australian community’.b.In respect of the decision of 7 June 2020, Nneither of these considerations were the subject of any invitation to the Applicants for comment.c.In respect of decision of 9 June 2020, the decision-maker took into account ‘the risk posed to the Australian community’. This consideration was not the subject of any invitation to the Applicants for comment.RESOLUTION

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.