CED17 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors

[2019] HCATrans 155

[2019] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S135 of 2019

B e t w e e n -

CED17

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

LAUREN OF THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 AUGUST 2019, AT 9.37 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 8 May 2019, the applicant filed an application for a constitutional writ and other relief.  For the reasons that I now publish, I would dismiss the application.  I direct that those reasons be incorporated into the transcript.

The orders are:

1.The application is dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

2.        The plaintiff pay the defendants’ costs.

I publish those orders.

The plaintiff has applied for a constitutional writ and other relief seeking to have the first defendant personally assess the plaintiff’s request for the exercise of his powers under ss 48B and 417 of the Migration Act 1958 (Cth) (“the Act”).

The first defendant contends that the plaintiff’s application does not disclose an arguable basis for the relief sought and that the plaintiff’s application should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

The plaintiff, who arrived in Australia as an illegal maritime arrival on 17 August 2012, claimed protection as a refugee.  He was refused a Safe Haven Enterprise Visa by a delegate of the first defendant.  The plaintiff challenged that refusal before the Immigration Assessment Authority (“the IAA”) and subsequently in proceedings in the Federal Circuit Court of Australia and the Federal Court of Australia.  He was unsuccessful in these proceedings, and an application for special leave to appeal to this Court was refused on 12 September 2018[1]. 

[1]     CED17 v Minister for Immigration and Border Protection [2018] HCASL 259.

On 7 October 2018, the plaintiff requested the first defendant to exercise powers conferred upon him either by s 48B or s 417 of the Act. On 17 April 2019, the plaintiff was advised by an officer of the Department of Home Affairs (“the Department”) that his request under s 48B was finalised by the Department without referral.

The plaintiff contends that he was denied procedural fairness in relation to the determination of his requests.

The plaintiff’s request under s 417 of the Act was plainly misconceived: that section does not permit the first defendant to substitute his decision for that of the IAA; nor does any other provision of the Act confer such a power.

As to the plaintiff’s other request, the first defendant has no obligation to consider the exercise of the power conferred by s 48B of the Act. The plaintiff’s application must fail in light of this Court’s decision in this regard in Plaintiff S10/2011 v Minister for Immigration and Citizenship[2]. It is settled by this decision that the exercise of the power conferred by s 48B of the Act is not conditioned by the provision of procedural fairness.

[2] (2012) 246 CLR 636 at 668 [100] and 673 [118]‑[119]. See also Plaintiff S277/2017 v Minister for Immigration and Border Protection (unreported, Gordon J, 22 August 2018); Plaintiff S118/2018 v Minister for Home Affairs (unreported, Gordon J, 22 August 2018); Plaintiff S28/2018 v Minister for Home Affairs (unreported, Gageler J, 29 August 2018).

The first defendant’s contention must be accepted; the plaintiff’s application should be dismissed with costs.

Adjourn the Court.

AT 9.37 AM THE MATTER WAS CONCLUDED