BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 995
•15 August 2023
FEDERAL COURT OF AUSTRALIA
BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995
Appeal from: BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 690 File number(s): VID 603 of 2023 Judgment of: RARES J Date of judgment: 15 August 2023 Catchwords: MIGRATION – appeal from refusal to grant injunction restraining removal of unlawful non-citizen from Australia pursuant to s 198(6) Migration Act 1958 (Cth) – where officer issued notice of intention to remove unlawful non-citizen under s 198(6) – where non-citizen subsequently made request to Minister under s 48B to consider lifting bar to further application for a protection visa – where Minister’s power under s 48B personal and non-compellable - where officers had duty under s 198(6) to remove unlawful non-citizen as soon as reasonably practicable and s 197C makes Australia’s non-refoulement obligations irrelevant to performance of duty – whether s 198(6) contains implication that, if realistic possibility that Minister will consider whether to exercise his power under s 48B, no officer can remove an unlawful non-citizen under s 198(6) until the Minister makes decision – held: appeal dismissed. Legislation: Constitution ss 64 and 75(v)
Migration Act 1958 (Cth) ss 48A, 48B, 197, 198, 499
Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214
Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protectionv SZSSJ (2016) 259 CLR 180
MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877
Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 56 Date of hearing: 15 August 2023 Counsel for the appellant: Mr E Nekvapil SC, Mr A Aleksov, Ms E Brumby and Ms A Best Solicitor for the appellant: Lander & Rogers Lawyers Counsel for the respondents: Mr G Johnson Solicitor for the respondents: Sparke Helmore ORDERS
VID 603 of 2023 BETWEEN: BJM16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
15 AUGUST 2023
THE COURT ORDERS THAT:
1.Order 1 made on 8 August 2023 be varied by deleting order 2 therein and substituting “The appeal be listed for hearing on 15 August 2023”.
2.Until the Court otherwise orders, the appellant’s name as disclosed in the affidavit of David Burke affirmed 3 August 2023 and in the affidavit of Matthew Burnham affirmed 14 August 2023 be suppressed and not published on the ground that s 91X of the Migration Act 1958 (Cth) so requires.
3.The appeal be dismissed.
4.The appellant pay the respondents’ costs.
5.The Commonwealth of Australia be substituted as the second respondent, replacing Australian Border Force.
UPON THE APPELLANT BY HIS SENIOR COUNSEL GIVING TO THE COURT THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT:
6.The respondents by themselves, their servants and agents be restrained from removing the appellant from Australia up to and including 22 August 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)RARES J:
This is an appeal from the decision of the Federal and Family Court of Australia (Division 2) (the Division 2 Court), in which the trial judge refused the appellant’s application for an urgent interlocutory injunction restraining the Minister for Immigration, Citizenship and Multicultural Affairs and Australian Border Force from removing him from Australia to Sri Lanka, pending the resolution of his claim for final relief. The final relief he sought was an injunction restraining his removal pending the Minister’s resolution of his request under s 48B(1) of the Migration Act 1958 (Cth) to determine whether, in the public interest, to lift the bar under s 48A(1) that would otherwise preclude the appellant from making a further application for a protection visa.
Her Honour concluded that there was no serious question to be tried and was not satisfied that the balance of convenience weighed sufficiently to warrant the grant of the interlocutory injunction. She found that the absence of a serious question to be tried outweighed the competing balance of convenience considerations and dismissed the appellant’s application on a final basis. In those circumstances, the parties agreed that because the trial judge had dismissed the proceedings in the Division 2 Court, an appeal of right lay to this Court.
The matter came before the duty judge in Melbourne on 3 August 2023. His Honour set down for hearing today what the parties then thought was an application for leave to appeal, and ordered the Minister not to remove the appellant up to 4:15pm today. On 8 August 2023, the parties, by consent, agreed that his Honour’s order be varied so that it now set down the hearing for today of an application for an interlocutory injunction, pending the hearing and determination of the appeal. At the commencement of the hearing today, I inquired why I should deal with the matter on an interlocutory, rather than a final, basis. Both parties proceeded on the basis that I should deal with the matter finally, given the lack of utility if I were minded to refuse interlocutory relief, which would have substantively the same effect as a refusal of final relief and vice versa. The parties also agreed to substitute the Commonwealth for Border Force as second respondent.
The issue on this appeal concerns the interaction of the provisions of ss 48B and 198(6) of the Migration Act. The appellant claims that there is an implication in s 198(6) that if a person seeks that the Minister exercise his personal, non-compellable discretion under s 48B to lift the bar imposed by s 48A, an officer cannot remove the person under s 198(6) if there is a realistic possibility that the Minister will consider whether to exercise that discretion, until he (directly or through an officer of his Department following his instructions) makes a procedural decision as to whether to do so and, if that decision is that he consider the exercise of his discretion, makes any subsequent substantive decision.
THE LEGISLATIVE PROVISIONS
Relevantly, the Migration Act provides:
48B Minister may determine that section 48A does not apply to non‑citizen
(1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
(2)The power under subsection (1) may only be exercised by the Minister personally.
…
(6)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
197CRelevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
198 Removal from Australia of unlawful non‑citizens
(6)An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a)the non‑citizen is a detainee; and
(b)the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(ii)the visa cannot be granted; and
(d)the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
(emphasis added)
THE MINISTERIAL GUIDELINES
The trial judge had evidence of a document, made in 2019, headed “The Ministerial Intervention Power under Section 48B of the Migration Act 1958” that described itself as “Refugee and humanitarian instructions” (the Guidelines), the purpose of which was to explain the administration process for Departmental officers after the receipt of a request for consideration of the s 48B Ministerial intervention power.
The Guidelines do not appear to have been made in an exercise of the Minister’s statutory powers under s 499 of the Migration Act to give written directions to a person or body about the performance of functions under the Act. That section relevantly provides:
499 Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
(emphasis added)
The Guidelines are quite detailed in describing the process for the consideration and evaluation of applications under s 48B. They describe the bar in s 48A as an integrity measure and state that the power to lift it provides a safety net in cases that require consideration. The Guidelines state that the public interest could be served in relation to persons who had previously been found not to be owed protection obligations by Australia by providing a way for new information or changed country conditions to be considered, if there were exceptional and compelling circumstances.
Section 4.3 of the Guidelines set out:
·three principles that were to be applied, namely: first, the Minister considered that a finding that had already been made, that Australia did not have non-refoulement obligations, should stand and cases should not be referred to him, unless there were exceptional circumstances to justify his considering the exercise of his power under s 48B, secondly, he was not inclined to consider the exercise of his power on more than one occasion for any person, and thirdly, he would use a risk-based approach developed with regard to country information to guide his consideration;
·identified circumstances, that he considered to be exceptional, in which the Minister wished to consider exercising his power in the public interest, including that the person was making a plausible claim that the information was not known to him or her or it did not exist at the time of the protection visa application, or that plausible claims had been made as a result of changed conditions in the person’s country of origin;
·identified cases that were not to be referred to the Minister for his consideration, which included where there was no new claim, no new information about a claim or no change in the person’s circumstances had occurred, or where new information was presented about the claim when that claim previously had been found by a delegate, the Administrative Appeals Tribunal, Immigration Assessment Authority, or a court not to be plausible or credible, not substantiated by objective country information, or made for the sole purpose of delaying or restraining the person’s removal from Australia.
The Guidelines then identified the Minister’s procedural instructions, in section 5, relevantly as follows:
·a request under s 48B could be made directly to the Minister by a person or a migration agent via letter or email;
·an acknowledgement would be sent only in cases where the assessment was likely to take longer than three weeks, for example, where country information was not available and it was necessary to make a special request for that to enable consideration to occur;
·ordinarily, an assessment would be finalised in a period shorter than three weeks, and should be completed as soon as practicable after it is received, priority being given to high profile or sensitive cases and to requests by persons in detention.
Section 5.4 dealt with how officers should assess a s 48B request, and instructed them that:
·the Guidelines had been framed to enable identification of cases likely to engage Australia’s protection obligations and referral to the Minister for consideration while allowing other cases to be finalised rapidly;
·the Minister did not wish to consider a case unless there were exceptional circumstances that justified him considering new information or where changes in circumstances occurred subsequent to the refusal of a protection visa;
·there were three steps for making such assessments, namely identifying, first, requests that were inappropriate to consider, secondly, whether the claim was new and could not have been made as part of the initial application or provided in a review of it, and, thirdly, whether the new claim was likely to engage Australia’s protection obligations;
·the assessment involved the possibility of one of three outcomes: first, the request was inappropriate to consider, and accordingly the Minister did not wish to be shown it, secondly, the request did not meet the Guidelines because there were no new claims presented, or the ones that were presented were not plausible or likely to engage Australia’s protection obligations (both of which cases amounted to the Minister instructing officers to refuse the request), and, thirdly, the request met the Guidelines for referral to the Minister, in which case it would be necessary for a brief to be prepared for him, together with material with which he could give appropriate notification to the Parliament under s 48B(3);
·officers could finalise a request by a person who had departed Australia as inappropriate to consider because s 48A would no longer apply to such a person;
·assessment of the plausibility of the claim or information was objective and that in deciding whether a claim made under a s 48B request was plausible, officers had to, first, give due regard to previous credibility assessments made on the protection visa application and be guided by those findings in deciding whether the claim was plausible, secondly, consider how consistent that new claim was with the prior circumstances, and, thirdly, consider whether it was reasonably possible the situation could have arisen or whether the claim was far-fetched. It provided that officers should be aware of the distinction between new information and new claims. New information related to a claim that had already been considered should not be considered further if the Department, Tribunal or Authority had found that the claim was not plausible or substantiated by objective country information;
·officers had to consult country information to assist in determining whether a claim was plausible in accordance with instructions that the Department had already issued as to the use of country information;
·although the onus was on the person making the request to provide all relevant information to the Department, the assessing officer might need to undertake other investigations to establish the veracity of the information provided, including seeking further country information;
·once the officer had assessed the information, he or she had to form one of two conclusions, namely that the request did not meet the Guidelines or was inappropriate to consider, in which case the applicant would be notified of that decision by a standard form letter, or alternatively, if the request met the Guidelines, in which case the matter would be put before the Minister.
BACKGROUND
The appellant arrived in Australia as an irregular maritime arrival in April 2013. In July 2013, he lodged an application for protection visa on the basis of, among other things, his Tamil ethnicity and imputed political opinion as someone associated with the Liberation Tigers of Tamil Eelam. In May 2016, the Tribunal affirmed the earlier decision of a delegate of the Minister not to grant the appellant a protection visa. The Federal Circuit Court dismissed the appellant’s claim for constitutional writ relief against the Tribunal’s decision. On 18 February 2019, a Full Court of this Court dismissed the appellant’s appeal. The appellant subsequently withdrew his application for special leave to appeal to the High Court.
In 2021, the appellant was charged with driving whilst intoxicated. He was sentenced to imprisonment and spent six months in jail. Before the conclusion of his sentence, his bridging visa expired. Since 25 January 2023, the appellant has been in immigration detention at the Villawood Immigration Detention Centre. His parole period finished on or about 25 July 2023.
On 27 July 2023, the appellant received a notice from Border Force of the intention to remove him from Australia on 3 August 2023.
Somewhat earlier, in about February 2023, the appellant had contacted from detention the Refugee Advice and Casework Service (RACS) from detention and sought assistance with his case. Once he received the removal notice, he reapplied on 27 July 2023 to RACS for assistance.
Later, on 27 July 2023 at 3:46 pm, RACS sent a letter on the appellant’s behalf to the Minister urgently seeking intervention under ss 46A and 48B of the Migration Act, to allow the appellant to lodge a further protection visa application. That was on the basis that what the appellant said comprised credible information about a substantial and exceptional change in his circumstances that was likely, materially, to strengthen a further application for a protection visa by him relating to unresolved non-refoulement concerns that he said arose in 2022, considerably after the refusal of his original protection visa application and his subsequent attempts to set that decision aside.
RACS’ letter of 27 July 2023 attached a statutory declaration by the appellant, a copy of a letter purporting to have been generated by the Sri Lankan police on 5 February 2023 relating to the appellant, a report about the appellant’s psychological distress that had been prepared by the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) on 27 July 2023, and other documents.
RACS’ letter referred to the letter from the Sri Lankan police, two visits by the criminal investigation division of the Sri Lankan police to the appellant’s family members and their questioning of his son in 2022, which RACS claimed was substantial new information of threats to the appellant’s family that indicated that he remained of adverse interest to Sri Lankan authorities. The letter argued that this information was credible and supported by unspecified country information in relation to the current situation for a person in the appellant’s position. It asserted that that new information would engage Australia’s protection obligations under s 36(2) of the Migration Act and so result in the appellant being a refugee so as to prevent his removal to Sri Lanka.
The Department responded automatically by email within a minute of receiving RACS’ email attaching its letter. Subsequently, about half an hour later, a Ministerial Intervention Officer in the International Obligations Complex and Cases Section of the Department wrote an email confirming that the s 48B request had been registered “and will progress”, and asked that if RACS intended to represent the appellant, it provide a signed form 956.
About an hour later, a solicitor in the firm representing the Minister replied to RACS referring to its email earlier that day seeking the s 48B lifting of the bar. The solicitor said that the appellant was an unlawful non-citizen covered by s 198 of the Migration Act and that the officers were under an obligation to remove him from Australia as soon as reasonably practicable. The email said that the s 48B request did not affect that duty and the Department was not aware of any legal matters on foot. It asserted that the Department would continue with the current arrangements for the appellant’s removal on 3 August 2023 unless a court made an order restraining that from occurring.
Needless to say, the parties did not reach an accommodation and the matter came before her Honour in the Division 2 Court.
THE TRIAL JUDGE’S DECISION
The trial judge recited the history of the application and the material before her. She dealt with the proceeding as an application for an interlocutory injunction and referred to the need for an applicant to establish that there was a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the final hearing and that the balance of convenience favoured that to occur, relying on Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.
Her Honour relied on decisions of this Court in MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 (Colvin J) and Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433 (Rofe J), each of which dealt with applications for interlocutory relief restraining removal of the then-applicants. Her Honour applied, as she was bound to, the construction placed by Colvin J on the interaction between the request under s 48B and the duty to remove under s 198(6) (as I explain at [37] to [42] below)
There was, however, a point of distinction between those other proceedings and this, in that unlike in MZAPC [2023] FCA 377 and Marya [2023] FCA 433, her Honour had the Guidelines in evidence.
THE APPELLANT’S SUBMISSIONS
After I raised the need for the appellant to formulate the precise form of an injunction which he sought, his senior counsel proposed the form of orders below:
1. An order restraining the Commonwealth of Australia, by any “officer of the Department” within the meaning of the Migration Act 1958 (Cth) from removing the Appellant from Australia.
2. Paragraph 1 ceases to have effect, if any of the following occurs:
(a)the Minister decides not to consider whether to exercise the power in s 48B in respect of the Appellant, or any officer of the Department implements such a decision by the Minister; or
(b)the Minister decides not to exercise the power in s 48B in respect of the Appellant, or any officer of the Department implements such a decision by the Minister; or
(c)the Appellant makes a valid visa application.
The appellant argued that the information contained in his s 48B request was acknowledged by the Department on 27 July 2023 as having been received, and, therefore, had engaged the operation of the Guidelines principally, as I understood the argument, because, first, the Guidelines were an exercise by the Minister of his statutory powers to consider whether he would make a procedural decision, through officers of his Department in accordance with the Guidelines, in the sense discussed by Kiefel CJ, Gageler and Gleeson JJ in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214 at 224 [16], and, secondly, there was a realistic possibility that application of the Guidelines would result in a positive procedural decision by the Minister to consider the request.
The appellant contended that the existence of the Guidelines, coupled with his bona fide request for consideration to lift the bar under s 48B, supported the implication in s 198(6) that the duty imposed on an officer to remove him as soon as reasonably practicable had to be postponed while there was a realistic possibility that the Minister would consider exercising his discretion to lift the bar under s 48B(1), until after the Minister made a procedural decision, through the Department following his instructions in the Guidelines, that the request was in a class of case that he either would or would not consider. The appellant submitted that this construction is supported by what was held in Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 350-351 [69]-[71], especially at 351 [71], Minister for Immigration and Border Protectionv SZSSJ (2016) 259 CLR 180 at 199-200 [46]-[50] and Davis 97 ALJR at 225 [16].
The appellant asserted that, under s 198(6), an officer could have no duty or power to remove him from Australia while officers of the Department had to be, or were, engaged in following the process for consideration of his s 48B request that the Minister had prescribed in the Guidelines. He argued that his removal from Australia could not occur under s 198(6) before the officers had applied the Guidelines to ascertain the fate of his request by following the Minister’s instructions and assessing whether the request must or must not be referred to him. He contended that the purpose of the Guidelines was to ensure effective assessment of a s 48B request, by officers in accordance with the Minister’s instructions, so that if this process resulted in a procedural decision to put the request before the Minister to enable him to make a substantive decision, that decision would be utile because the person making the request would remain in Australia. In that way, if the Minister lifted the bar, the person would be able to satisfy the requirement for the application for, and grant of, a protection visa, that he or should be then in Australia. He submitted that unless s 198(6) were construed to contain the proposed implication, the consequence of an officer removing him would be to defeat the purpose of the conferral on the Minister personally to decide whether it was in the public interest to allow a person in the position of the appellant the opportunity to lodge a further protection visa.
THE REASONS IN DAVIS 97 ALJR 214
Recently, Davis 97 ALJR 214 considered the impact of an earlier version of a document akin to the Guidelines, used from 2016, in respect of an analogous non-compellable power to s 48B, namely s 351 of the Migration Act. Under s 351, the Minister can, if he thinks it is in the public interest to do so, substitute for a decision of the Tribunal under s 349 a decision more favourable to the visa applicant, whether or not the Tribunal had power to make that decision. Like the power in s 48B, only the Minister personally may exercise the power under s 351 and its exercise is not compellable.
In Davis 97 ALJR 214, the Court held that guidelines, that the Minister had formulated in 2016, invalidly conferred his personal power on officers of the Department. Kiefel CJ, Gageler and Gleeson JJ (with whose reasons Gordon J agreed at 231 [66]) discussed the ability of the Minister to make in advance a procedural decision that, in specified classes of case, applications for a more favourable decision under s 351(1) could be processed by officers of his Department in accordance with guidelines that instructed them that the Minister did not wish to have matters in those classes brought to his attention. Their Honours held that the Minister could instruct officers by issuing guidelines (or another form of instruction) that he would not consider certain applications because they satisfied particular criteria or, alternatively, could specify criteria for other classes of case that officers should bring to his attention so that, in each situation in a class, he would have made a decision in advance, under his personal statutory power, as to whether he would consider whether to exercise his power.
Their Honours discussed two sources of power for the Minister to issue instructions to officers of his Department as to his personal decision in classes of case in respect of a power, such as that in s 48B(1): first, statutory (in [16] of their reasons) and, secondly, non-statutory (in [19] of their reasons), in exercise of his executive power under s 64 of the Constitution. Their Honours discussed these two sources of power and how a Minister could give effect to his decision by instructions as follows:
[16]The Minister is not limited to exercising the power conferred by s 351(1) to make a procedural decision – to consider or not to consider making a substantive public interest decision – only in an individual case. The Minister can exercise the statutory power to make a procedural decision in a specified class of case and can do so in advance of a case arising within that class. Thus, the Minister can exercise the power conferred by s 351(1) to make a procedural decision to the effect that “I will consider making a substantive public interest decision in any case that has the following characteristics … but I will not consider making a substantive public interest decision in any case that has the following characteristics …”.
…
[19]Being under no obligation to exercise the statutory power to make a procedural decision at all, however, the Minister can choose to make no procedural decision one way or the other under s 351(1). The Minister can instead choose to exercise executive power, involving the Minister acting in “a capacity which is neither a statutory nor a prerogative capacity”, to give a non-statutory instruction to officers of the Department administered by the Minister under s 64 of the Constitution as to the occasions, if any, on which the Minister wishes to be put in a position to consider making a procedural decision. Thus, the Minister can exercise executive power to give a non-statutory instruction to departmental officers to the effect that “I wish to be put in a position to consider making a procedural decision in any case that has the following characteristics … but I do not wish to be put in a position to consider making a procedural decision in any case that has the following characteristics …”. That was found to be the effect of the 2009 Ministerial Instructions in Plaintiff S10/2011 [(2012) 246 CLR 636] as explained in SZSSJ [(2016) 259 CLR 180] and has been found to be the effect of the 2016 Ministerial Instructions by the Full Court in an unchallenged aspect of the decision under appeal.
(emphasis added; footnotes omitted)
The reasons of each justice referred to what Brennan J had said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 65-66. Kiefel CJ, Gageler and Gleeson JJ held at 226 [28]-[29] that the terms of s 351, which for present purposes are analogous to those of s 48B, conferred a personal, non-compellable, power on the Minister alone, as distinct from the Department, that he administered in accordance with s 64 of the Constitution, to make any decision whether or not to exercise the power to grant a more favourable decision. They held that because s 351(3) (and analogously, s 48B(2)) conferred on the Minister personally the power to evaluate the public interest as to whether a more favourable decision could be substituted, the section necessarily implied that no other officer of the Commonwealth could exercise that power. Their Honours held that the Minister could not circumvent that statutory limitation by any purported use of the executive power to allow officers of his Department to exercise his power. However, they held that he could exercise his personal power in advance through a procedural decision, by requiring officers to communicate his advance decision in cases falling within a class covered by that procedural decision. Edelman J and Jagot J came to the same result, giving separate and extensive reasons.
CONSIDERATION
It is important to appreciate that none of the authorities on which the appellant relied dealt with the implication that he seeks be found to qualify the duty of an officer to remove an unlawful non-citizen under s 198(6). Rather, those authorities dealt with the administrative process for officers of the Department to assess or consider a request to lift a bar or obtain a more favourable decision under the Migration Act that can only be exercised by the Minister personally, otherwise than in the ordinary course of administration by officers of his Department.
In SZSSJ 259 CLR at 200 [53]-[55], French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ said that, in that case, the Minister had made a procedural decision in exercise of his non-compellable personal power to consider whether to lift the bar for the appellants there to apply for a visa. Accordingly, the Court held that, when considering the substantive question of whether it was in the public interest to lift the bar, there was an implication in the Migration Act that the Minister had to afford the appellants there procedural fairness. In other words, the implication of the obligation to provide procedural fairness arose because of the Court’s finding that the Minister already had made a procedural decision to consider whether he would lift the bar. That is different to a situation, such as the present, where the appellant has made a request for the Minister to exercise his non-compellable power under s 48B(6) to consider whether the Minister would embark on the path of making a procedural and or substantive decision under s 48B(1).
The appellant’s argument is that the Guidelines already have given instructions as to the Minister’s procedural decision in respect of the determination of whether his s 48B request falls into one class of case prescribed in the Guidelines. He contended that once an officer evaluates the request and the plausibility of the information in it in accordance with the Guidelines, that will result in a procedural decision by the Minister personally through the officer’s application of his statutory instructions about the performance of the officer’s functions to assist him, in the sense that Kiefel CJ, Gageler and Gleeson JJ discussed in Davis 97 ALJR at 224 [16]. The appellant submitted that during the time in which unspecified officers had to follow and implement the Minister’s written instructions in the Guidelines in respect of his s 48B request, another officer could not be obliged to remove him under s 198(6) because the Minister was considering the exercise of his personal power through the process that the Guidelines mandated.
I reject that argument. In construing the clear words of s 198(6) in light of the requirements in s 197C(1) and (2), it is difficult to think that the Parliament intended that it was possible for an unlawful non-citizen to delay the performance of an officer’s duty to remove him or her merely by making, or because he or she has made, an application for the Minister to exercise a personal power such as that in s 48B. The Parliament could be expected to have contemplated that the Minister could, and probably would, put in place guidelines to filter out, from being brought to his attention, what would be likely to be very numerous applications that would not be appropriate for his individual personal consideration, so as to limit to particular classes of case matters that required his personal evaluation of the national interest.
In MZAPC [2023] FCA 877, Colvin J dealt with arguments about the construction of statutory provisions that involved some similarities to the present issue. Those included an argument that it was necessary to harmonise the operation of provisions of the Migration Act, having regard to the process of statutory construction as explained, for example, in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]. There (at 381-382 [69]-[70]), McHugh, Kirby, Gummow and Hayne JJ said:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
(emphasis added; footnotes omitted)
Importantly, Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said in Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35], commenting on the reasons in Project Blue Sky 194 CLR at 381 [69], if a party contended that, by reason of such considerations, a statutory provision should not be given its literal meaning, then such a construction may lack force unless accompanied by some plausible formulation or alternative meaning.
Colvin J did not have before him the Guidelines and did not address his reasons to their content. He held that because the powers in s 48B were both personal and non-compellable (MZAPC [2023] FCA 877 at [30]):
It would alter their character if the making of the request could give rise to some form of requirement for the Minister to indicate whether or not the request was to be considered.
His Honour said that MZAPC had not suggested that the expression “as soon as reasonably practicable” as used in s 198 meant that it would not be practicable to remove a person, who otherwise satisfied the conditions specified in each of its relevant subsections, until the person had sufficient time to make a request under s 195A or its analogues, including s 48B. Instead, MZAPC asserted (but his Honour rejected) that it would be unlawful to remove him under s 198(6) unless and until it was clear that the Minister would or would not consider the request. His Honour considered, as have I, the obviously serious consequences for a person in the position of the appellant, who faces imminent removal from Australia if an argument of the present kind is unsuccessful and there is a realistic possibility that the Minister will make a procedural decision as to whether or not to grant his application for intervention (MZAPC [2023] FCA 877 at [31]-[32]).
Colvin J held that the mere making of a request that the Minister exercise one of his personal non-compellable powers did not entail that that request was “pending”. He said that, for the purposes of s 198(6), such a construction impermissibly sought to give a statutory significance to a request to the effect that its making entailed that the power to make a procedural decision would be exercised despite its nature being personal to the Minister alone and its exercise non-compellable. His Honour found that the mere making of a request did not create an obligation on the Minister to make a procedural decision (at [40]). Colvin J held that the mere possibility of the Minister making a procedural decision in the future in relation to a request of the kind contemplated in an analogue s 48B did “not mean that anything is ‘pending’ when a person makes a request” (at [43]). I agree. Here, s 48B(6) makes clear that the Minister has no obligation to deal with a request under s 48B(1).
Moreover, his Honour held that there was a stark absence of any statutory provision that qualified the circumstances in which an officer must remove an unlawful non-citizen from Australia under s 198 if he or she makes a request for the exercise by the Minister of a non-compellable personal power such as that found in s 48B. In support his conclusion, Colvin J also relied on the requirement in s 197C that an officer’s duty to remove an unlawful non-citizen under s 198 arises irrespective of whether there has been an assessment of Australia’s non-refoulement obligations in respect of him or her. He said (at [44]-[45]):
In the face of these express and detailed provisions, the existence of the personal powers is not a basis to conclude there is some further implicit limitation upon the circumstances of which an unlawful non-citizen must be removed "as soon as reasonably practical". Finally, there was no answer to the Minister's submission the contentions advance would allow for a rolling requests as a means of deferring removal from Australia.
While the Guidelines provide some constraint on the prospect of such rolling requests, his Honour’s reasons support a construction of s 198(6) that negates the implication of a limitation on the duty on an officer to remove an unlawful non-citizen who satisfies the conditions in that section as soon as reasonably practicable from Australia. Such an implication would be at odds with, and be a significant derogation from, the condition precedent for the officer’s duty to remove the unlawful non-citizen in s 198(6)(d), supplemented by s 197C(1) and (2), namely, that the unlawful non-citizen has not made another valid application while in the migration zone for a substantive visa that can be granted.
I reject the appellant’s construction. It would be odd that the Parliament had specifically imposed a pre-condition for the duty of an officer in s 198(6)(d) to remove, as soon as practicable, an unlawful non-citizen that he or she had not made a valid application for a substantive visa and where s 197C(1) and (2) prescribe that Australia’s non-refoulement obligations are irrelevant to the performance of that duty, but somehow omitted to enact expressly that it was also essential there be no valid, but undetermined, request for the personal exercise of the Minister’s non-compellable powers under s 48B and numerous other provisions in the Migration Act analogous to it: DB Management 199 CLR at 338 [34]-[35].
The construction of s 198(6) which the appellant urges would be contrary to the statutory scheme in ss 48A, 48B and 197C. That scheme limits the entitlement of an unlawful non-citizen to make one or more further substantive applications for a protection visa, with the consequence that officers will have the duty under s 198, in appropriate cases, to remove him or her as soon as reasonably practicable, because, as s 197C provides, Australia’s non-refoulement obligations are irrelevant to the performance of that duty.
Moreover, the Parliament has made clear in s 48B(6) that the Minister does not have any duty to consider under s 48B(1) whether to exercise the power to lift the bar, whether or not he is requested to do so by the non-citizen, any other person, or in any other circumstances. In this context, if the appellant’s argument were right, an officer would be prevented from removing him under s 198(6) for an indefinite period because, ultimately, the Minister may or may not decide to consider whether to exercise his personal power, including after the Department has pursued a process, such as in the Guidelines, to process whether, in accordance with the Minister’s instructions, the request should or should not be put before him.
Because the Minister’s powers under s 48B and its analogues are both personal and non-compellable, a person seeking their exercise will not be able to seek a writ of mandamus to require the Minister to make a procedural or substantive decision on a request such as one under s 48B(1). Therefore, the unlawful non-citizen could be held indefinitely in immigration detention until the request is determined, notwithstanding the express terms of ss 197C and 198(6) that require the person’s removal as soon as reasonably practicable in circumstances where Australia’s non-refoulement obligations in respect of the unlawful non-citizen are irrelevant to the performance of that duty.
DOES AN INJUNCTION LIE?
The appellant argued that the jurisdiction to grant an injunction created by s 75(v) of the Constitution should be understood as directed to prevent an unlawful exercise of power, as Kiefel CJ, Bell and Keane JJ said in Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177 at 220 [96].
The appellant contended that a constitutional writ of injunction available under s 75(v) or pursuant to the Division 2 Court’s powers conferred under s 476(1) of the Migration Act should be granted to prevent a breach of the law by the Minister or an officer removing him from Australia contrary to the alleged implied duty not to do so pending the evaluation under the Guidelines of the appellant’s request to lift the bar under ss 48A and 48B.
For the reasons I have given, it is difficult to characterise the imperative duty of an officer under s 198(6) to remove an unlawful non-citizen who fulfils its criteria as somehow becoming an unlawful exercise of power in the event that the non-citizen chooses to seek an indulgence or permission by making an application under s 48B(1), whatever the good faith of such an application.
I infer that the appellant made this application in good faith. However, that does not eschew the difficulty in an officer or a court determining the quality or plausibility (as required in the Guidelines) of a request under s 48B(1) so as to be satisfied (as the appellant’s suggested implication to qualify the duty in s 198(6)) whether or not there is a “realistic possibility” that it may be referred, by application of the Guidelines, to the Minister for his personal consideration.
This difficulty can be seen in the fact that the appellant’s request itself contains no information (nor was any before the trial judge or me) that identifies any country information to suggest that the appellant would be a person to whom Australia owes protection obligations, were he to be returned to Sri Lanka, being the very subject matter that s 197C(1) and (2) make irrelevant to the performance of the duties to remove imposed on officers under s 198. Nor was there any information as to the way in which the Tribunal or the Federal Circuit Court had assessed or characterised any credibility of the appellant or his claims in his earlier failed protection visa application. Yet, the Guidelines require that an officer take those matters into account in assessing plausibility of any new claim or new information in a s 48B request.
Therefore, it is not possible for me to find that it is more likely than not that a decision by an officer under s 198(6) to remove the appellant, as is threatened, would be an unlawful exercise of power. That is because, in addition or alternatively to the reasons above, it is not clear what might happen to the appellant’s request under s 48B or when the Minister, either personally or by officers of his Department following his instructions in the Guidelines, will determine it.
As s 48B(6) expressly provides, there is no compellable duty of the Minister, or any officer of the Commonwealth, to process a request under s 48B(1) at all or within any particular time. The scheme of the Migration Act for the reasonably prompt removal of persons who satisfy the criteria or preconditions in s 198(6) would be frustrated by an implication in the terms of the nature for which the appellant contends. That implication does not seem to make sense with either the literal words or the ordinary and natural meaning of s 198(6), read alone or in the context of s 197C (which makes Australia’s non-refoulement obligations, that a request under s 48B(1) seeks to enliven, irrelevant to an officer’s duty to remove an unlawful non-citizen) as soon as reasonably practicable and the personal and non-compellable powers conferred on the Minister by s 48B.
DISPOSITION
For all these reasons, I am not satisfied that there is any error in the trial judge’s decisions to reject both the application for interlocutory relief and dismiss the proceeding below. I am also not satisfied, on the balance of probabilities, that the appellant has established that there would be any unlawful exercise of power were an officer to perform the duty to remove the appellant from Australia imposed under s 198(6), despite his request under s 48B(1) not yet having been determined. Accordingly, I am of opinion that the appeal should be dismissed with costs.
However, I will grant an interlocutory injunction for seven days to enable the appellant, if so advised, to seek special leave to appeal.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 22 August 2023
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