BNL20 v Christopher John Dawson in capacity as State Emergency Coordinator and Commissioner of Police - [2020] WASC 315

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BNL20 -v- CHRISTOPHER JOHN DAWSON in capacity as STATE EMERGENCY COORDINATOR AND COMMISSIONER OF POLICE [2020] WASC 315
CORAM:   KENNETH MARTIN J
HEARD:   20 & 21 AUGUST 2020
DELIVERED          :   21 AUGUST 2020
PUBLISHED           :   4 SEPTEMBER 2020
FILE NO/S:   CIV 1872 of 2020
BETWEEN:   BNL20
Applicant
AND
CHRISTOPHER JOHN DAWSON in capacity as STATE EMERGENCY COORDINATOR AND COMMISSIONER OF POLICE
First Respondent
CRAIG BARNSLEY in capacity as INSPECTOR DETENTION OPERATIONS VICTORIA/TASMANIA MELBOURNE IMMIGRATION TRANSIT ACCOMMODATION, AUSTRALIAN BORDER FORCE
Second Respondent
THE SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS
Third Respondent

Catchwords:

Judicial review - Quarantine (Closing the Border) Directions (WA) - Application made - Approval given - Applicant granted travel exemption to enter State - Applicant in detention in Victoria under the custody of Commonwealth - Challenge against approval - Interlocutory injunction sought

Legislation:

Emergency Management Act 2005 (WA)
Quarantine (Closing the Border) Directions (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr G McIntyre SC & Mr A Aleksov
First Respondent	:	Ms C J Thatcher SC
Second Respondent	:	Mr P Knowles & Ms C Ernst
Third Respondent	:	Mr P Knowles & Ms C Ernst

Solicitors:

Applicant	:	Clothier Anderson Immigration Lawyers
First Respondent	:	State Solicitor for Western Australia
Second Respondent	:	Australian Government Solicitor, Perth
Third Respondent	:	Australian Government Solicitor, Perth

Case(s) referred to in decision(s):

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Baker v Commissioner of Australian Border Force [2020] FCA 836
BNL20 v Minister for Home Affairs [2020] FCA 1180
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Mount Gibson Mining v Anstee‑Brook [2011] WASC 172; (2011) 42 WAR 35
Wintawari Guruma Aboriginal Corporation RNTBC v The Hon Benjamin Sana Wyatt [2019] WASC 33

KENNETH MARTIN J:

(This judgment was delivered extemporaneously on 21 August 2020 and has been edited from the transcript.)

Introductory observations

These are my reasons, in relation to the application for an interlocutory injunction, which is advanced by the applicant in this matter. The application is made in urgent circumstances, where yesterday he has filed an application in this court for judicial review of a decision by the first respondent.

There are three grounds of review. Earlier today I indicated that I was not prepared to make an order granting an urgent final hearing for determination of the judicial review application. Consequently, I heard a subsequent argument by the applicant, which was resisted by all respondents, seeking interlocutory injunctive relief predicated upon the applicant's underlying asserted claim for certiorari, or Rules of the Supreme Court 1971 (WA) (RSC) O 56 r 1(1) judicial review relief akin to certiorari under the judicial review application pursued against the first respondent's 'reviewable' decision.
So the application for interlocutory relief presently pursued by the applicant with utmost urgency is that the second and third respondents be restrained from causing the applicant's entry into Western Australia. There has been what is referred to as a 'purported exemption' granted, in respect of the applicant, on 11 August 2020, as issued under the Quarantine (Closing the Border) Directions (WA) (the Directions), made under the Emergency Management Act 2005 (WA) (the Act) which would allow his entry into Western Australia. The applicant seeks this injunctive relief until determination of the substantive proceeding, or until further order.
I render two key observations at the outset. First, interlocutory relief is sought now in the context of the pending application for judicial review relief or for certiorari, ultimately seeking to quash a decision of the first respondent for the approval of entry into Western Australia. Secondly, as will have been observed, the interlocutory restraint is not sought against the first respondent. Rather, it will be an interlocutory restraint relief to be issued only against the second and third respondents, albeit the underlying cause of action, if I can use that terminology as regards possible future certiorari, is directed only against the first respondent.
Now, I accept, for the purposes of the argument today, that it may be theoretically open to grant an interlocutory restraint by way of injunction against parties associated with an underlying subject matter, albeit that final relief is not sought against those restrained parties, such as against parties in the positions of the second and third respondents.

The evidence and undisputed facts

The application is supported by three affidavits which have all been submitted on behalf of the applicant. Each has been sworn by the applicant's lawyer of record, that is, Ms Sanmati Verma. And so I hold each of her three affidavits read on the present application (declared and dated 18, 19 and 20 August 2020 respectively). For the second and third respondents there have been two affidavits filed by Mr Jonathon Papalia, who is a lawyer engaged with the Australian Government Solicitor (AGS) having the carriage of the present matter. They are his affidavits sworn 20 August 2020 and 21 August 2020 which have also been read and received.
For the purposes of the present application, in terms of key underlying facts, it is convenient to incorporate the facts as they are seen assembled in Mr Papalia's first affidavit, at between par 3 - 11:
3.The applicant is an 'unlawful non‑citizen' within the meaning of that term in s 14 of the Migration Act. Accordingly, he is required to be detained pursuant to ss 189 and 196 of the Migration Act.
3.1.The applicant is a national of the Islamic Republic of Pakistan.
3.2.On 28 December 2010, he arrived in Australia by plane, as the holder of a Class TR Subclass 676 Tourist (temporary) visa.
3.3.On 28 February 2011, the applicant applied for a Class XA Subclass 866 Protection (permanent) visa (protection visa). He was granted a Class WA Subclass 010 Bridging A (temporary) visa (bridging visa) in association with that application.
3.4.On 12 August 2011, a delegate of the then Minister for Immigration and Citizenship refused the application for a protection visa under s 65 of the Migration Act, on the basis that the applicant did not meet the requirements in s 36 of the Migration Act for the grant of that visa.
3.5.On 7 September 2011, the applicant sought review of that decision in the Refugee Review Tribunal.
3.6.On 10 April 2013, the Refugee Review Tribunal set aside the delegate's decision and remitted the matter back to the Department with the following direction:
'the applicant satisfies section 36(2)(a) of the Migration Act 1958, being a non‑citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.'
3.7.On 16 October 2019, the Director‑General of Security made an assessment that the applicant is directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979, and that it would not be consistent with the requirements of security for the applicant to be granted a protection visa.
3.8.On 23 October 2019, the applicant was given notice of the Minister's intention to consider cancellation of his bridging visa under s 116(1)(g) of the Migration Act, read with reg 2.43(1)(b) of the Migration Regulations 1994 (Cth). That is, on the basis of the Adverse Security Assessment.
3.9.The applicant was interviewed following that notification, with the assistance of a migration agent and an interpreter. Following the interview, a delegate of the Minister decided to cancel the applicant's bridging visa under s 116(1)(g) of the Migration Act.
3.10.As a result of the visa cancellation, the applicant was detained under s 189(1) of the Migration Act.
3.11.On 24 October 2019, the applicant sought review of the delegate's cancellation decision in the Administrative Appeals Tribunal.
3.12.On 25 November 2019, the Administrative Appeals Tribunal affirmed the cancellation decision.
3.13.The applicant does not hold a visa that is in effect.
4.The applicant is presently being held by, or on behalf of, an officer (within the meaning of that term in s 5 of the Migration Act) in a place approved by the Minister (administering the Migration Act) in writing under the Migration Act, namely Melbourne Immigration Transit Accommodation (MITA) in Victoria.
5.On 8 April 2020, the applicant commenced the Federal Court proceedings. By those proceedings, the applicant seeks final injunctions to restrain the Minister for Home Affairs, the Secretary of the Department of Home Affairs and the Commonwealth of Australia (the Federal respondents) from continuing to breach their duty of care, by exposing him to risk of contracting the coronavirus disease (COVID‑19) and severe acute respiratory syndrome coronavirus 2 (SARS‑CoV‑2).
6.On 10 August 2020 at 0743AWST, the Federal respondents were notified that the Federal Court (Murphy J) had granted the applicant an interlocutory injunction after a contested hearing held on 7 August 2020. His Honour relevantly ordered that:
1.Until further order, as soon as reasonably practicable but in any event by no later than [1300AEST] on 13 August 2020, the [Federal respondents] cease to detain the applicant at Melbourne Immigration Transit Accommodation centre.
2.At least 24 hours prior to taking any step to comply with Order 1 the [Federal respondents] inform the applicant's legal representatives of the step or steps proposed to be taken.
7.On 11 August 2020 at 2105AWST, I wrote to the applicant's solicitor, Ms Verma, by email, pursuant to order 2 of the orders made by Justice Murphy on 10 August 2020, outlining the Federal respondents' intentions for compliance with order 1 of those orders, namely the intended transfer of the applicant to Yongah Hill Immigration Detention Centre in Western Australia on 12 August 2020.
8.On 12 August 2020, the applicant sought a listing in the Federal Court, to ventilate an urgent oral application for a further interlocutory injunction restraining the Federal respondents from transferring the applicant to Western Australia.
9.On 13 August 2020, the Federal Court (Murphy J) set a programme for that further interlocutory application, and extended the time for compliance with order 1 of the orders on 10 August 2020 to 21 August 2020 at 1300AEST.
10.On 13 August 2020, the applicant filed his interlocutory application referred to at [8].
11.On 19 August 2020, the Federal Court heard and dismissed the applicant's further interlocutory application.
None of these facts are in dispute on this application.

The legal basis for interlocutory injunctive relief

The legal standard for obtaining interlocutory injunctive relief is also not in contention as between the parties. It was conveniently stated under the observations of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 in the respective reasons for decision which have been referred to today by counsel, namely, first, in the joint judgment of Gleeson CJ and Crennan JJ and secondly, in the joint reasons of Gummow and Hayne JJ (see page 74).
Consequently, under the rubric of either finding a serious question to be determined or a prima facie case, properly understood as was explained in ABC v O'Neill, I am looking, essentially, today for a respectable argument for the applicant in terms of a final position which is sought to be established under his claim for certiorari as it is pursued as against the first respondent. The argument for relief does not need to be assessed today as necessarily a winning argument at a trial. Nor it does need to be assessed now as overwhelmingly persuasive, or even need to be assessed today as an argument quantified as being more likely to succeed ultimately than to fail. There merely needs to be a reasonably coherent argument to support final relief that can be respectably advanced in order to support the applicant's position for interlocutory relief at this time.
But with the respectable argument there is a further evaluative factor, namely, the balance of convenience. As to the interdependency between the factors: see Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 (Mason ACJ). This consideration is jointly weighed into the overall equation in terms of assessing whether, at this point, it is more convenient for the court to intervene or not to intervene.
The essential argument for relief, in terms of judicial review by way of certiorari ordered as against the decision of the first respondent, requires me to put into context the Directions that have been issued under the Act.

The Emergency Management Act 2005 - Quarantine (Closing the Border) Directions

I turn to the Act and, in particular, to pt 5 and pt 6 thereof.
Under pt 5, if there is a declaration of emergency made by the Minister (as has occurred on 15 March 2020), then certain consequences follow. Reference is made to a State Emergency Coordinator (who is defined in s 10 of the Act) who under s 61 of the Act is the person who may authorise persons to act as authorised officers during a state of emergency.
Under pt 6 of the Act, in reference to the granting of emergency powers, I direct particular attention to s 72A as regards general powers during an emergency situation, and then to the general provisions as regards powers under div 3 and, at s 77, general provisions regarding directions.
The Directions were issued by the State Emergency Coordinator and the Police Commissioner, Mr Dawson, the first respondent, pursuant to his powers under s 61, s 67, s 70 and s 72A of the Act. The Directions came into effect on 5 April 2020.

Background to the application

As is apparent from what are the uncontroversial underlying key facts, as extracted now from Mr Papalia's first affidavit, the present position is that there is an underlying established likelihood that on this coming Monday (ie, on 24 August 2020) the applicant will be compulsorily removed from the detention facility in Melbourne, Victoria, where he currently is held as an unlawful non-citizen (detained by the Commonwealth) to be transported by a commercial airline flight to Perth, Western Australia.
How that all arose is explained in Mr Papalia's affidavit but, in brief summary, the circumstances began to unfold after a decision by Murphy J in the Victorian Registry of the Federal Court of Australia: see BNL20 v Minister for Home Affairs [2020] FCA 1180 (10 August 2020).
His Honour issued a mandatory interlocutory injunction as regards the applicant. This was done on the basis of an assessment as to the scope of the duty of care owed to the applicant by the Commonwealth under adverse current COVID-19 public health risk circumstances prevailing in Victoria. This was particularly necessary given the applicant's age, gender and general ill health by reference to an underlying diabetic condition and various other matters which render the applicant, for the purposes of that assessment, to be a person assessed as being at a high risk, or a higher than general risk of susceptibility to contracting the COVID-19 virus. Consequently, the Commonwealth was ordered by Murphy J, effectively, to remove the applicant from the Melbourne detention facility on an interlocutory basis, given that level of risk and the duty owed to him, albeit he is being held in detention.
In consequence of Murphy J's orders concerning the applicant, and I am only summarising here, alternative detention facilities were considered which could be more in alignment with the Commonwealth meeting its public health duty of care owed to the applicant (which it does not dispute) under the current adverse COVID‑19 situation blighting Melbourne, Victoria. This has all led, in effect, to an ensuing decision to remove the applicant from Melbourne by air (on a commercial flight) to Western Australia, and then from Perth to the Commonwealth's detention facility located at Yongah Hill on the outskirts of the rural wheatbelt town of Northam, Western Australia.
The applicant's lawyers were notified of those relocation plans by the Commonwealth authorities, relevantly made by the second or third respondents. There followed a further application made to Murphy J, seeking to restrain that potentiality of removal.
That further application to Murphy J occurred on 19 August 2020 and, given the urgency of the application before me, I have only been provided with his Honour's interlocutory order. But it appears from the orders issued by his Honour that applying the usual standards to the assessment of interlocutory relief, his Honour declined to intervene to inhibit the Commonwealth authorities moving the applicant away from Melbourne by air to Western Australia. It looks to be the case that a very considerable amount of medical evidence was put before his Honour on late last Wednesday (19 August 2020) from a public health and COVID‑19 perspective, provided by experts on all sides. There can, of course, be no collateral attacks made against that decision in this court. That would be an obvious abuse of process and the applicant accepts that to be so.
Now, the application made to this court yesterday arises over a further decision that has been issued under the Directions, but made by an authorised officer under the Directions. This material is contained in the first affidavit of Ms Verma and was put before me yesterday, which material I have been through with counsel. But, in particular, from Ms Verma's first affidavit, I refer to the materials appended between pages 59 and 67, for the purposes of endeavouring to ascertain the precise decision by the first respondent. It is that decision which is now the subject matter of a suggested potential impugnment under the three grounds of judicial review seeking prerogative relief against a reviewable decision.
At page 59 of Ms Verma's first affidavit, a notification may be seen of a decision as regard to the applicant being affirmatively permitted to enter this State from Victoria. The notification read:
In this instance, the application is for the recognition as a 'Person who can enter Western Australia' who may be subject to terms and conditions is APPROVED.
The notification then adds this:
You will be subject to certain conditions under Section 5(e)(i).
And there follows then some five health-related or social distancing conditions of a somewhat generic nature, all identified, and including remaining 1.5 metres away from others, coughing or sneezing into elbows, washing hands regularly, wearing face masks and making notification in the event of symptoms of fever or acute respiratory infection.
That notification was provided by email on Tuesday, 11 August 2020 at 12.25 pm, and was copied to Mr Barnsley, the second respondent.

The three (3) grounds of judicial review

The essential nature of the present challenge as advanced under the three grounds of judicial review speculates over the basis upon which the entry approval to Western Australia was issued for the applicant. By its terms, the email that was sent to Mr Barnsley does not on its face indicate any particular basis by reference to the Directions upon which a decision to allow entry was approved. There is, of course, as I assess it, no suggestion of an obligation to provide reasons for an affirmative decision.

The grounds of review then, by reference to the Directions, speculate over the actual basis for the affirmative entry approval decision.

The Directions and the application for exemption

To understand the challenge, one needs to be more familiar with the Directions. To that end, I commence with Direction 4, in plenary terms, which reads:
A person must not enter Western Australia unless the person is an exempt traveller. (emphasis in original)
The critical phrase for the purposes of that general prohibition and its application is the term, 'Exempt Traveller'. In turn, the Directions later define 'Exempt Traveller' at Direction 27.
One of the bases of the multiple grounds upon which a person seeking entry to the State might seek to meet that definition of 'Exempt Traveller' is by meeting sub‑direction 27(d). This reads:
[A] person who is carrying out functions under a law of the Commonwealth.
Pausing at that point, ground 1 contends for a jurisdictional error upon the speculative assumption by the applicant that his approval was given to enter Western Australia as an Exempt Traveller on the basis of his designation as a person carrying out functions under a law of the Commonwealth. Now that, if that were the case, by my assessment, could not possibly be correct. Indeed, no-one on the present application before me, contends for the possible engagement as regard to the applicant under that sub‑direction 27(d).

Request for approval as an Exempt Traveller form

Speculation about sub‑direction 27(d) being engaged here looks to emerge from the submitted application form, seen at between pages 61 and 66 of Ms Verma's first affidavit. Under Part B on page 63 under a heading 'Categories of Exempt Traveller', a tick is seen inserted in one of the potential boxes there. The box is for 'Persons carrying out a function under a law of the Commonwealth'.
Yet, at and on the very same page of the application form, under another heading 'People who cannot enter WA without receiving prior approval', there is equivalently to be seen a tick put in another box which, adjacently, says 'Persons otherwise seeking approval to enter WA'. Then at page 64, under a heading 'People who cannot enter WA without receiving prior approval', may be seen as inserted above a sub‑heading, 'Reason for exemption', the fixed preface:
If you are applying for People who cannot enter WA without receiving prior approval, on page three (3), you will need to provide further detail. Elaborate on why you require the exemption you have nominated. (emphasis in original)
Next, under that sub-heading 'Reasons for exemption' I draw attention to what is seen there inserted by typed words, 'Refer to attached letter'. That referred accompanying letter is duly found at page 66 of Ms Verma's affidavit. But before I get to the letter I should note that at Part C of the form (on page 65) under a heading, 'Declaration', the second respondent, Mr Barnsley, declares that he has read the Directions, that he understands the categories of Exempt Traveller must be read in the context of the Directions, and that he further acknowledges the penalty for providing false or misleading information. That declaration was made on 11 August 2020 when Mr Barnsley signed that application form concerning the applicant and the request for the applicant to enter this State.
I will next incorporate the appended letter at page 66 of Ms Verma's affidavit by reference to aspects of what it said. Again, this is Mr Barnsley's letter and by it he advises:
To whom it may concern.
The purpose of this letter is to confirm that the Detainee [BNL20] is being transferred by the Australian Border Force to Western Australia (WA) Yongah Hill Immigration Detention Centre.
Mr Barnsley's letter then continues:
This move is critical at this point in time, as the Department is required to transfer [BNL20] from the Melbourne Immigration Transit Accommodation facility to another location in accordance with a Federal Court order.
Further, Mr Barnsley's letter then relates:
A transfer to Yongah Hill Immigration Detention Centre is indicated under the Department's National Detention Placement Model. If transferred, [BNL20] would be able to isolate at the Yongah Hill Immigration Detention Centre under the supervision of medical and security contractors as engaged by the Australian Border Force.
I also note, but do not incorporate, the last paragraph of that attached letter.
Assessed in overall context, the data within what I assess together and will loosely refer to as the 'application form' (including the attached letter) provided the basis upon which duly followed an ensuing affirmative approval entry decision made for the applicant on 11 August 2020 at 12.25 pm.

Ground 1

Assessed in overall context, I do not assess the relevant entry application as being made on a basis that the applicant was an 'officer of the Commonwealth' for whom an approval was not required. That would be a nonsense. Clearly, the application proceeds on the basis that it was made for a category of person for whom an approval was then being sought. Here ground 1 of the three grounds of review is not sensibly likely to be engaged under present circumstances. It may be put to one side as irrelevant.

Ground 2

The second ground of review also speculates, by reference to sub‑direction 27(q)(iv), as to the assessed basis of the affirmative decision to grant the applicant's approval of entry to the State. Unlike for the definition of 'Exempt Traveller' under sub‑direction 27(d), (which does not refer at all to any approval being required), ensuing categories 27(q) and (r) (which I mention next) make an express reference to an 'approval' being given on behalf of the State Emergency Coordinator, or the authorised person, as regards entry as an 'Exempt Traveller'. So seen, sub‑direction 27(q) commences:
[A] person falling into any of the following categories whom I, as the State Emergency Coordinator, or a person authorised by me as the State Emergency Coordinator for the purpose, approves in writing -
And then:
[P]rovided that the person complies with the requirements of a centre direction immediately after entering Western Australia (or such other quarantine direction with which the approval may otherwise require the person to comply), and any other terms or conditions to which that approval is subject ...
Relevantly, sub‑direction 27(q)(iv) refers to a person who is required to enter Western Australia under, 'or to give effect to', an order of an Australian court.
Ground 2 of the review grounds as formulated seeks to contend for jurisdictional error of the decision maker, on the basis that the terms of sub-direction 27(q)(iv) were not engaged here. This is said to be so since Murphy J's first order requiring the Commonwealth to remove the applicant from the relevant Melbourne detention facility for COVID-19 risk reasons did not require the applicant enter Western Australia. Therefore, given the interstate movement was not expressed as a requirement of Murphy J's orders, it is said (iv) of sub‑direction 27(q) is not engaged.
That, I must say, would not be my preferred construction of sub‑direction 27(q)(iv), if required. Contextually, the Directions surely need to be assessed broadly, in a context of the underlying pandemic emergency and in a context of a workable approval process for certain classes of persons seeking to be allowed to enter Western Australia as categories of 'Exempt Traveller'. A sensible level of pragmatism, rather than strict legalism, ought to be applied in terms of the decision maker assessing possible approval for somebody engaging with the effects of an order of an Australian court - in a way that would bring about, or assist, or further a compliance with that order of the court. That approach should follow albeit the order of the relevant court itself may not be seen as crafted to as to engage directly upon a person as being under any express 'requirement', by the order itself, for them to enter Western Australia. In other words, an order made by a court in terms of its accompanying pragmatic compliance ramifications might, applied sensibly, still require a person to enter Western Australia assessed in underlying circumstances.
I see no reason at all to construe the Directions, surrounding the basis upon which an approval for entry to the State is given, upon any narrow or legalistic assessment.
Nevertheless, I can accept that the language of sub‑direction 27(q)(iv) is perhaps open to a different interpretation. By the applicant's arguments, a narrower view might arguably be applied to sub‑direction 27(q)(iv). So, for that reason, ground 2 of the grounds of review ought to be presently assessed as potentially arguable, although I must not say that I do not assess it as strongly arguable in all the underlying public health emergency circumstances that surround its making given COVID-19. Nevertheless, it is not clearly established that the approval decision was reached by reference to sub-direction 27(q)(iv).
As I endeavour to explain, I do not conclude that a decision as to which the Direction 27 category of Exempt Traveller is affirmatively engaged, or not, will necessarily provide a basis to show a true public law jurisdictional error if, in fact, a court were ever subsequently to take a position that some narrower view towards the correct interpretation of the text of the Directions is reached.
Any view about jurisdictional error is explained best by reference to the following 'catch all' concluding sub‑category (r) in Direction 27. This approval category for an 'Exempt Traveller' is expressed under extremely broad terms, as follows:
[A]ny person or category of person who I, as the State Emergency Coordinator, or a person authorised by me as the State Emergency Coordinator for the purpose, approves in writing and who complies with any terms or conditions to which the approval is subject (which may include a quarantine direction), whether on any compassionate grounds or -
and I do then emphasise these concluding words -
on any other ground whatsoever. (my emphasis)
Now, as seen, the terms of sub‑direction 27(r) are expressed in such breadth as regards the approval being granted (not even on broad compassionate grounds) but on any ground whatsoever, by the State Emergency Coordinator or their delegate. That breadth indicates to me that for a review that is attempted by reference to an ex post facto pigeon‑holing of an entry decision, particularly an affirmative approval decision would not, as I would assess it, be logical. That would not be a sensible way to approach emergency directions of this character, framed in the context of their dealing with avoiding drastic negative health consequences of an international pandemic. There is, I repeat, no obligation to provide reasons for an approval decision.
A legalistic approach to attempt to divine a category or categories of Exempt Traveller, that was assessed as being engaged under Direction 27, so as to argue over whether that category was truly met, or not, for the purposes of a judicial review application - presents to me to be out of any sensible alignment with the emergency character of the Directions. It is also out of alignment with the necessarily swift and robust way in which they must inevitably on occasions need to be applied in circumstances of an emergency - possibly for dealing with hundreds or more of applicants requiring assessment.
Here, I am much in agreement with the approach - although it is expressed, of course, for different legislation - by Mortimer J in Baker v Commissioner of Australian Border Force [2020] FCA 836. In particular, I refer to her Honour's observations seen at [63] and [64], in terms of procedural fairness and its scope:
63.In those circumstances, I reject the applicants' submission that the content of procedural fairness can in any way be equated with, for example, a full administrative decision‑making or merits review process. The entire context of the Determination is the existence of an emergency. The exclusion of the usual Parliamentary disallowance process indicates the exceptional nature of the Determination.
64.The obligation to afford a reasonable opportunity to be heard, assuming as I do that it exists, must conform to the circumstances of an emergency situation.

Ground 3

The argument for review by remaining ground 3 displays an extra element which is not put in respect of review grounds 1 and 2. This is that the error of the decision‑maker in granting approval was wrong in law and was, to quote the words in ground 3, by reason of the decision maker:
having failed to comply with the requirements of procedural fairness, in that [BNL20] was not notified of an application for approval being made in respect of him or provided with an opportunity to make any representations in relation to or oppose the decision being made or directions, terms or conditions being imposed upon him.
During the course of the hearing I have had a frank exchange with both senior and junior counsel for the applicant over what are wholly unique circumstances under which a person in the position of the applicant could seek to review for error for what is an affirmative entry approval decision on a basis of them somehow unfairly not being 'heard' for the purposes of the decision maker hearing their submission, in effect, that they ought not to receive the entry approval.
I still hold some in principle reservations over whether even a decision to refuse an approval to entry might, itself, be a subject of review - on a basis of failure to theoretically accord procedural fairness. But that is not this case.
Here it is a contrary contention that, in fact, an approval decision upon an as submitted application seeking entry can give rise to a basis on which the person, the subject of the application seeking to be approved for entry to Western Australia as an Exempt Traveller, ought to be heard, so as to then submit that they ought not to receive an entry approval (for reasons personal to them). I find that contention more than challenging, not to mention unprecedented in terms of its attempted engagement against principles of procedural fairness. There is no adverse decision against them for one thing. Their application has been approved.
Here, on my analysis, the true underlying grievance of the applicant, buried under review ground 3, is more conceptually directed at some deep rooted and embedded challenge against the authority of the second or third respondents. This challenge goes to their ability to lawfully be able to validly apply on his behalf to seek entry approval and then to actually submit that request for an approval on the applicant's behalf in the terms of the application form as was submitted here, which was then duly evaluated and ultimately approved. What could possibly alert a State entry decision maker to a possible need to hear an applicant to enable him to then submit against the very application that is to be approved for entry - as was then being sought to enter Western Australia. I assess no relevant aspect of unfairness to complain about in that affirmative approval decision.
Two further things about all that, from the point of view of procedural fairness. First of all, as Ms Thatcher SC, counsel for the first respondent, correctly pointed out, even upon the obtaining of Exempt Traveller approval, there is still then no obligation or, indeed, any compulsion upon a person (as a subject of the approval) to then travel to Western Australia as an Exempt Traveller. All the approval delivers, in effect, is to afford an expansion to entry rights to this State that might not otherwise be exercised, absent a person being designated as an Exempt Traveller.
There is, of course, no obligation for such a person so approved, to then travel to Western Australia. There is simply the acquisition of the entry permission, to the extent that a permission might be needed in future.
The second point that I wish to make is to take up the submission as was put on behalf of the second and third respondents by their counsel, Mr Knowles. This was to the effect that upon close review of the text of the Directions, particularly sub-direction 27(r), there is no formality seen there under those terms for the requiring of any written application form to be completed in terms of a basis upon which an approval sought under the Directions is to be obtained.
The Direction text itself seen expressed simply refers to a person or category of person who the State Emergency Coordinator 'approves in writing or complies with any terms to which the approval is subject'. In other words, there is to be seen no set regime of approval formality, as regards the obtaining of an approval - and for quite understandable purposes. For the present case, the application form has been completed for the applicant and submitted and then a decision made upon the basis of that form, as seen on 11 August 2020 at 12.25 pm.
But for the purposes of a decision maker under the Directions needing to meet a suggested procedural fairness defect in a decision making environment by not affording a hearing to an applicant, it seems to me to be drawing a long bow indeed. This is particularly so to suggest that the decision‑maker had failed to accord natural justice or procedural fairness by not, on receiving the submitted request for entry approval, then tracking down the exemption applicant to offer them an opportunity to submit a contrary representation against entry approval. All that after having had submitted on their behalf their request for approval to enter Western Australia as an Exempt Traveller.
It would be one thing for a review application on someone's behalf as an Exempt Traveller, if they had been refused permission, or refused approval, to complain and to then seek possibly to be heard. That is not this case. For present circumstances, I cannot reach a view, even arguably, that the to be approved person needs to be afforded a hearing for a purpose of stating their own opposing position so as to meet procedural fairness. That I assess instead to be procedural nonsense.
By my reading and assessment of the Directions as to the Exempt Traveller categories, there was no arguable obligation here to provide reasons. Here, as a mode of seeking approval, a form was completed and submitted. On its face the approval form presented as regular, and the decision then taken is in the affirmative as regards approval.
I have previously discussed procedural fairness in the context of construction contracts in Mount Gibson Mining v Anstee‑Brook [2011] WASC 172; (2011) 42 WAR 35 and more recently in the context of an exploration license in Wintawari Guruma Aboriginal Corporation RNTBC v The Hon Benjamin Sana Wyatt [2019] WASC 33.
I have listened with interest to arguments about the theoretical reach of procedural fairness principles and reminders from counsel for the applicant about errors of the decision-maker innocently not being appraised of relevant facts or, indeed, the decision-maker acting perfectly rationally or reasonably, nevertheless failing to accord procedural fairness. I take cognisance of such case authorities at a theoretical level. Nevertheless, towards present circumstances, as regards the approval to enter Western Australia as an Exempt Traveller, in terms of any longer term grant of certiorari to potentially vitiate a decision which actually granted the affirmative approval sought to enter Western Australia as an Exempt Traveller, I simply cannot accept that a sensible argument of any coherency is made out over a denial of procedural fairness, if the entry approval requested was in the affirmative. Moreover, as Ms Thatcher SC pointed out, there is no obligation to travel. Approval simply removes a potential barrier, if travel is ever attempted.
Consequently, I cannot evaluate here any longer term serious question or a prima facie case as arguable. Indeed, on my present evaluation, the review argument is fundamentally flawed longer-term in terms of its merit.

Balance of convenience

So then, in terms of balancing that factor out with the balance of convenience considerations, balance of convenience must be assessed in a context of the particular prevailing circumstances of the case. Relevantly to that further evaluation, I must note here this applicant's circumstances as a person that is lawfully detained by the Commonwealth. He is not a person who has previously enjoyed or enjoys freedom of movement across Australia, prior to the local state of emergency and the Directions which were issued under the Act. That state of affairs needs to be evaluated in terms of the overall convenience of a potential intervention at this time.
Secondly, I take cognisance of the disastrous COVID‑19 pandemic currently sweeping the world and, indeed, Australia, and of the respective community spread risk positions of Western Australia and Victoria at this time. In terms of Victoria, I note what is a current State of Disaster by reference to COVID-19 with great sympathy. But in terms of the comparative position with COVID-19 in Western Australia, for the moment, this State is in a better position in terms of the present lack of any community transmission currently being detected at all in Western Australia. Whilst hopeful, nobody is smug at all about that in terms of future risks. Ongoing vigilance is of course a given against a dangerous unseen COVID-19 enemy.
Nevertheless, when contrasting the present respective Victorian and Western Australian positions in terms of a community exposure spread risk and thus, a threat of contracting COVID-19 by a vulnerable person, it must be said that for the present, as a location, Western Australia is now perhaps one of the safest places in the world to be.
I note the position of the Commonwealth, in terms of its accepted duty of care to the applicant as regards public health. That duty is acknowledged as regards protection against unacceptable levels of COVID-19 exposure for persons in Commonwealth lawful detention, and its obligations to the applicant which follow in the wake of the decision of Murphy J. That decision, at the applicant's making, required, in effect, the Commonwealth to move the applicant to another, less risky, place from a COVID-19 perspective. But I note further that Murphy J refused, on 19 August 2020, to intervene to injunct the foreshadowed movement of the applicant from the Melbourne detention facility via air to Western Australia.
And I also note the steps the Commonwealth has taken in order to urgently locate another detention place with a lesser COVID-19 community exposure risk with a view to meeting its duty of care and thereby meeting the order of Murphy J. Those orders were made of course, as I observe again, upon the application of this applicant as regards the unacceptable level of COVID‑19 risk which he was then experiencing by way of his detention at the Melbourne facility.
I do also accept that the applicant has lately said that he would now prefer to be held in the State of Victoria, closer to his son and family, and where he has been for some time. Albeit the applicant finds himself under circumstances in which he is detained lawfully by the Commonwealth, not enjoying freedom of movement and under circumstances where the community spread risk of COVID-19 in Victoria is greater, presently, than it is for persons in Western Australia.
Hence, I weigh the balance of convenience in terms of an intervention. By doing nothing, it would appear that there is a strong prospect that, on Monday, the applicant will be moved by air from Melbourne via commercial flight to Western Australia, where he would then be taken to the Yongah Hill Immigration Detention Centre, isolated and quarantined for a period of 14 days before allowed into the general community of that facility.
Weighing these factors together, overwhelmingly the lack of coherency and persuasiveness in showing any prima facie case or serious question requires that, overall, this court should not intervene by way of interlocutory relief at this time. And, consequently, I will not grant interlocutory relief as sought today.
The application is dismissed and the applicant must in the circumstances meet the taxed costs of all respondents.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DW
Associate to the Honourable Justice Martin
4 SEPTEMBER 2020