CLM18 v Minister for Home Affairs
[2019] FCCA 1106
•30 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLM18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1106 |
| Catchwords: MIGRATION – Application for judicial review of decision to remove Applicant pursuant to s.198(2) of the Migration Act 1958 (Cth), further to the Minister’s decision to revoke the lifting of the s.46A bar pursuant to s.46A(2C) of the Act – the Applicant did not lodged a protection visa application prior to deadline – the Department undertook an Informed Referral to Status Resolution (IRSR) Assessment of each “non-lodger” – two relevant IRSR assessments were undertaken in relation to the Applicant – whether the Minister was obliged to and did afford the Applicant procedural fairness before exercising his revocation power – whether the legislative scheme of the Act in s.46A(2C) provided the necessary intendment to displace the implied presumption of procedural fairness – whether the IRSR process was made pursuant to the exercise of a ministerial power and was a reviewable migration decision pursuant to s.476(1) of the Act – whether Minister made a personal procedural decision to consider the exercise of his powers under ss.46A and 195A of the Act – characterisation is a question of fact – no jurisdictional error established in ground 1 – no migration decision, and thus no jurisdiction to review the IRSR process in ground 2. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 5AA(1), 13, 14, 46A, 189, 195A, 198, 476, 477 |
| Cases cited: AOA16 v Minister for Immigration [2017] FCA 697 MZABP v Minister for Immigration & Ors [2015] FCA 1391 Plaintiff M74/2012 v Minister for Immigration and Citizenship [2013] HCA 24; (2013) 252 CLR 336 SZTES v Minister for Immigration [2015] FCA 719 |
| Applicant: | CLM18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | INFORMED REFERRAL TO STATUS RESOLUTION OFFICER |
| File Number: | SYG 1337 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 7 June 2018 |
| Date of Last Submission: | 14 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gormly |
| Solicitors for the Applicant: | Mr S Klotz, Hall & Wilcox |
| Solicitors for the Respondents: | Ms D Watson, Australian Government Solicitor |
ORDERS
THE COURT:
GRANTS LEAVE to the Applicant, by 4pm, 6 May 2019, to file and serve an amended application seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) in respect to the Revocation Decision.
WAIVES any requirement that the Applicant file and serve an affidavit in support of such application for extension of time.
DIRECTS the parties, by 4pm, 6 May 2019, to provide to Chambers short minutes of order reflecting these reasons, and the parties’ positions on costs.
STANDS OVER the proceeding to 10:15am, 7 May 2019 for the making of final orders.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1337 of 2018
| CLM18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| INFORMED REFERRAL TO STATUS RESOLUTION OFFICER |
Second Respondent
REASONS FOR JUDGMENT
On 11 May 2018, an officer of the First Respondent, the Minister for Home Affairs, served on the Applicant a Notice of Intention to remove him from Australia on 15 May 2018 pursuant to s.198(2) of the Migration Act 1958 (Cth) (Removal Decision). Pursuant to orders of this Court made on 17 May 2018, the Minister is presently restrained from removing the Applicant from Australia.
The Applicant, born in 1994, is a Sri Lankan citizen of Tamil ethnicity. He arrived at Christmas Island by boat in October 2012 without a valid visa to enter Australia. In August 2013 he was granted a bridging visa E (which has since expired), and released into the community. On 18 January 2018, the Applicant was located in the community and detained under s.189(1) of the Act. He was subsequently taken to Villawood Immigration Detention Centre. He remains in detention.
By application made on 14 May 2018 under s.476 of the Act, the Applicant challenges the Removal Decision. In the alternative, the Applicant says that the Minister made a personal procedural decision on 19 September 2017 to consider the exercise of his powers under ss.46A and 195A of the Act, and alleges that the assessment of protection based barriers to removal undertaken by the Department of Home Affairs in relation to the Applicant (which include assessments made January 2018 and 3 March 2018, which I describe below as the second IRSR and the third IRSR respectively) was unlawful as the Applicant was not afforded procedural fairness in relation to the assessment.
Although the amended application and the grounds of review do not so characterise the issues, the parties ultimately agreed that, in substance, the issues raised by the Applicant are:
(a)first, whether the Minister’s exercise on 19 September 2017 of his power under s.46A(2C) of the Act in revoking his determination to allow certain persons (including the Applicant) to lodge an application for a Temporary Protection visa or Safe Haven Enterprise visa under s.46A(1) (Revocation Decision) is subject to a requirement of procedural fairness, and if so, what does procedural fairness require in the circumstances, and was the Applicant afforded it; and
(b)secondly, whether the “Informed Referral to Status Resolution” process (IRSR process) undertaken by officers of the Department in relation to the Applicant, and, specifically, the second IRSR and the third IRSR, is the exercise of Ministerial power consequent upon a personal procedural decision of the Minister made on 19 September 2017 (evidenced by the Minister noting recommendation 3 of the Ministerial submission dated 12 September 2017 and thus the process described in the submission at [10]), and, if so, whether the exercise of such power by the Department is conditioned by a requirement to accord the Applicant procedural fairness. Integral to this second issue, and the jurisdiction of the Court regarding this issue, is whether as a matter of fact the Minister personally made a procedural decision as the Applicant contends.
It is not in dispute that the Applicant was not informed of the IRSR process, and was not invited to comment on any information referred to in those IRSR. The Applicant submitted the second issue above only arises if he does not succeed in respect of [4(a)] above.
After addressing the question of the necessity of obtaining an extension of time, I identify some relevant statutory provisions, and then set out the facts and procedural background including the Revocation Decision and the IRSR process, and then describe the proceeding in this Court, and set out the Applicant’s grounds of review. Thereafter, I consider the grounds and the parties’ submissions.
Extension of time
A preliminary issue that arises is whether the Applicant requires an extension of time. The Applicant submits that no extension of time is necessary in order to challenge the Removal Decision. That may be so, but is not the end of the matter.
The amended application reveals that in effect what the Applicant seeks is a declaration that the SHEV application which the Applicant purported to lodge on 28 February 2018 was a valid application, and therefore that s.198(2)(c)(i) of the Act, which enlivens the duty to remove, does not apply to the Applicant. In order to enable the Applicant to seek relief in relation to the Removal Decision, the Applicant has alleged that the Revocation Decision was affected by jurisdictional error, as the Applicant was not – he says – afforded procedural fairness owed to him. The Minister submits that in substance the Applicant seeks to challenge the Revocation Decision, and to engage the Court’s judicial review jurisdiction to review that decision.
As the application was filed on 14 May 2018, Ms Watson, appearing for the Minister and the Second Respondent, submits that the Applicant requires an extension of time in which to seek a declaration of invalidity of the Revocation Decision (as it was made 19 September 2017). Mr Gormly, appearing for the Applicant submits that the declaratory relief sought in respect of the Revocation Decision, and the writ of mandamus sought in respect of the administration of the Applicant’s February 2018 SHEV application, both remedies sought in the amended application, are sought in exercise of the Court’s associated jurisdiction under s.476(1), not its original jurisdiction, and therefore are not the subject of the time limit in s.477(1) of the Act.
Whilst the validity of the Revocation Decision is not expressly stated as a ground of review (see at [78]), a fair reading of the grounds reveals that it is a central issue in Ground 1. As I have summarised at [4] and [8], and as will be apparent in my consideration of the grounds and the parties’ submissions, the Applicant contends that the Removal Decision is affected by jurisdictional error, because the Applicant’s February 2018 SHEV application was valid, but in turn this contention as to validity is dependent upon the success of the Applicant’s contention that the Revocation Decision is affected by jurisdictional error.
Thus, on balance I consider that the Applicant does require an extension of time in which to seek a declaration that the Revocation Decision was contrary to law, and to seek a writ of mandamus requiring the Minister to determine the Applicant’s SHEV application according to law (prayers for relief 3 and 4 in the amended application).
The principles governing the grant of an extension of time in this Court are well rehearsed: see e.g., MZABP v Minister for Immigration & Ors [2015] FCA 1391; (2015) 242 FCR 585, at [58]-[62], approved by the Full Court of the Federal Court in MZABP v Minister for Immigration & Ors (No 2) [2016] FCAFC 138. It suffices to say that in the present case the question largely turns on the merits of the substantive application, as the Minister does not allege any especial prejudice, nor oppose the extension, whilst there is delay, in my view in this instance it is not determinative. I am mindful of Mortimer J’s exhortation in MZABP not to travel beyond an examination of the substantive application at a “reasonably impressionistic” level, and of Wigney J’s observation in SZTES v Minister for Immigration [2015] FCA 719, of the need to distinguish between grounds that are hopeless and destined to fail, and those which are properly described as weak, and in the latter case that it is seldom appropriate to refuse to extend time. I am persuaded that the substantive application is not without reasonable prospects. I extend time.
I note that by agreement the parties argued the matter fully before me, being content for me to reserve on the question of extension of time. I also note that if I am wrong, and no extension of time is needed, there has not been any unnecessary duplication of preparation or hearing time.
I propose to extend time. As the Applicant has not included in the amended application an application for an extension of time, and pursuant to s.477(2) of the Act such an application must be in writing, I will grant leave for him to file and to serve an application for extension of time to regularise the proceedings. I waive any requirement that he file and serve any affidavit in support; it will suffice to include in the further amended application reference to the preceding paragraphs of these reasons and relevant oral argument. In the circumstances, as the matter was fully argued, I proceed directly to determine the proceedings on a final basis.
Relevant statutory provisions and their application
Section 46A
Section 46A(1) of the Act prevents an “unauthorised maritime arrival” who is an “unlawful non-citizen” from lodging a valid application for a visa while he or she is in Australia.
An “unauthorised maritime arrival” is, relevantly, a person who entered Australia by sea at an excised offshore place and became an unlawful non-citizen because of that entry: s.5AA(1). Christmas Island, where the Applicant first entered Australia, is an “excised offshore place” as defined in s.5(1) of the Act. A “lawful non-citizen” is a non-citizen in the migration zone who holds a visa that is in effect: s.13(1). A person who does not hold an effective visa and is not an Australian citizen is an “unlawful non-citizen”: s.14(1).
Section 46A is in the following terms:
46AVisa applications by unauthorised maritime arrivals
(1)An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
(a)is in Australia; and
(b)either:
(i) is an unlawful non-citizen; or
(ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
(1A) Subsection (1) does not apply in relation to an application for a visa if:
(a) either:
(i) the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or
(ii) the applicant is a lawful non‑citizen who has ever held a safe haven enterprise visa; and
(b) the application is for a visa prescribed for the purposes of this paragraph; and
(c) the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.
(2)If the Minister considers that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by an unauthorised maritime arrival for a visa of a class specified in the determination.
(2A)A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
(2B)The period specified in a determination may be different for different classes of unauthorised maritime arrivals.
(2C)The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3)The power under subsection (2) or (2C) may only be exercised by the Minister personally.
…
Subsection 46A(4) requires the Minister to cause to be laid before Parliament a statement of the determination and the reasons for the determination referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest. Subsection 46A(5) then specifies that the statement must not include the name or any information that might identify the unauthorised maritime arrival, or other person. Subsection 46A(6) specifies the time in which the statement must be laid before each House of Parliament.
Subsection 46A(7) then provides that the Minister does not have a duty to consider whether to exercise the power under sub‑ss.46A(2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any circumstances.
“Lifting the bar”
A person who arrived in Australia by sea without a valid visa, who claimed that they were a person in respect of whom Australia owed protection obligations, was dependent upon the Minister exercising their discretion pursuant to s.46A(2) to enable the person to make a valid application for a protection visa.
A decision made by the Minister under s.46A(2) is commonly referred to as a decision to “lift the bar”: Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [13]. Conversely, a ministerial decision made pursuant to s.46A(2C) to revoke that s.46A(2) decision is often referred to as a decision to “drop the bar”. The form of s.46A in force when the High Court considered it in Plaintiff M61 did not contain subs.46A(2C). That subsection was introduced into the section by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth).
As the Applicant arrived in Australia by sea at an excised offshore place (Christmas Island) without a visa he was an “unauthorised maritime arrival” pursuant to s.5AA(1) of the Act. As an unauthorised maritime arrival, he was precluded by s.46A(1) of the Act from lodging a valid application for a visa unless and until, and only for so long as, the Minister exercised his power under s.46A(2) to lift the s.46A(1) bar.
Section 195A
Section 195A provides that the Minister may grant detainee visas.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
Tabling of information relating to the granting of visas
(6) If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):
(a) states that the Minister has granted a visa under this section; and
(b) sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.
(7) A statement under subsection (6) in relation to a decision to grant a visa is not to include:
(a) the name of the person to whom the visa is granted; or
(b) any information that may identify the person to whom the visa is granted; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa—the name of that other person or any information that may identify that other person.
(8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
Section 198
Section 198 is headed “Removal of unlawful non-citizens in other circumstances”. Subsection 198(2) of the Act provides:
(2)An officer must remove as soon as reasonably practicable an unlawful non‑citizen:
(a)who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and
(b)who has not subsequently been immigration cleared; and
(c)who either:
(i)has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or
(ii)has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.
Background facts, chronology and procedural history
The Applicant claims to be a person to whom Australia owes protection obligations under s.36 of the Act. Based on his entry interview, the Applicant claims to fear harm from the Sri Lankan authorities if forced to return to Sri Lanka due to his Tamil ethnicity, imputed political opinion as a Liberation Tamil Tigers Eelam (LTTE) supporter, and status as a failed asylum seeker who left Sri Lanka illegally.
Upon his arrival in Australia by boat, the Applicant was initially detained under s.189(3) of the Act. On 20 August 2013, he was granted a bridging visa E and was released into the community. That bridging visa ceased on 29 July 2017.
During 2015, after the passage of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), the Minister commenced making a series of determinations under s.46A(2) lifting the bar for unauthorised maritime arrivals who arrived and entered Australia after 13 August 2012, but before 1 January 2014, and who had not been taken to a regional processing country. Prospective applicants were notified in writing, and invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV).
Invitation to apply for a TPV or SHEV
In the Applicant’s case, by a letter dated 23 May 2016 addressed to the Applicant (first letter), the Minister exercised his discretion under s.46A(2) to lift the statutory s.46A(1) bar, and invited the Applicant to make a valid application for a TPV or a SHEV. The letter was sent to the Applicant at a Strathfield South address in Sydney, New South Wales. I note that whilst this letter is the first written communication of the lifting of the s.46A bar addressed to the Applicant in evidence before me, the Departmental records also in evidence suggest that the s.46A bar was first lifted in favour of the Applicant by an earlier letter described as sent in December 2015. There is no indication whether that earlier letter was sent to the Applicant at his notified address, nor is the content of the letter disclosed. Nothing turns on whether the date the Department first sought to invite the Applicant to apply for a TPV or SHEV was December 2015 or May 2016.
The first letter stated “the Minister has now exercised the power under subsection 46A(2) of the Act to allow you to make a valid application for a Temporary Protection visa (TPV) or a Safe Haven Enterprise visa (SHEV).” The letter encouraged the Applicant to apply for a TPV or SHEV within 28 days. However, if the Applicant required more time, he “may take up to 60 days from the date of this letter without the need to request an extension.” The letter continued: “if you do not submit a complete application, there may be delays in processing your application.” The letter did not state any other consequences of not applying for a visa or any prospect of the s.46A(1) bar being reimposed. Attached to the letter was an “Invitation to Apply Factsheet”.
Further invitations to apply for a TPV or SHEV
Between 30 November 2016 and 22 September 2017 the Department sent the Applicant five more letters, inviting him to apply for a TPV or SHEV, and, in the third and subsequent letters, informing him of adverse consequences if he did not so apply. These letters were as I describe in the following paragraphs.
On 30 November 2016 the Department sent a further letter to the Applicant at the Strathfield South address (second letter). That letter is not before the Court. The second letter was returned to the Department, as evidenced by a “received stamp” dated 23 December 2016 with a return to sender sticker on the envelope in which the letter was posted marked as “unclaimed”. A photocopy of that envelope is in evidence. The date of the letter (30 November 2016), addressee and address details on the second letter are shown through the clear addressee window of the returned envelope.
On 25 January 2017, the Department sent a further letter to the Applicant (third letter), again sent to the address at Strathfield South, reminding the Applicant to apply for a TPV or SHEV. The letter stated: “You must lodge an application within 60 days of the date of this letter”. It stated further: “The Minister has the power to revoke the determination allowing you to lodge an application. If you do not lodge an application within the next 60 days the Minister may revoke this decision. This will mean that you can no longer lodge an application” (emphasis added). Attached to the letter was what appears to be a Tamil translation of the English text of the letter. On the material before the Court, the third letter was the first time that the possibility of making a revocation decision was mentioned in the Department’s correspondence to the Applicant.
On 30 March 2017, the Department sent a further letter to the Applicant at the Strathfield South address titled “Final reminder to apply” for a “(TPV)” or a “(SHEV)” (fourth letter). What appears to be a Tamil translation of the letter was also attached. The letter informed the Applicant that payments to him through the Department of Human Services were “being ceased”, and that “Payments and services may only be restored if you lodge an application.” The letter continued:
The Minister has the power to revoke his decision allowing you to lodge an application. If you do not lodge an application within the next 14 days we will refer your case to the Minister to consider changing his decision. This will mean that you could no longer lodge an application for visa in Australia.
I note that in her written submissions on behalf of the Minister, Ms Watson submits that the Applicant was specifically notified that if he did not lodge an application his case would be referred to the Minister to consider the exercise of his power under s.46A(2C), and that the Applicant had accordingly been afforded procedural fairness. I understand the Minister to be relying on the third and fourth letters.
By April 2017, the Applicant had not applied for a protection visa.
In April 2017 the Department undertook an “Informed Referral to Status Resolution” of the Applicant’s circumstances (first IRSR). The first IRSR was stated to be a check of the material available to the Department to inform subsequent discussion between the Applicant and a Departmental “Status Resolution officer”, and not an assessment of any protection claims raised by the person. It concluded with a statement by the reviewing officer that in the officer’s view there appear to be no protection barriers to involuntary removal of the Applicant, based on the material, and in the absence of a protection visa application, and a concurring assessment of a director, dated 18 April 2017.
Applicant’s contact with Department in May 2017
According to an “IMA non-lodger chronology” obtained from the Department’s files, and in evidence before me, on “17 May 2017”, the Applicant contacted the “BV-E reporting line” to change his address and contact details. I note that according to the order of the events set out in the chronology, this could be an incorrect date, and the contact could have been in April 2017, consistent with the timing of the first IRSR, however nothing appears to turn on whether the contact took place in April or May 2017. I infer that the contact was made by phone as the contact is recorded in the chronology as made to the “reporting line”.
The entry in the chronology records that on that occasion the Applicant was reminded by the reporting line officer to lodge his TPV or SHEV “ASAP”, that he was advised if he does not apply within the timeframe, he may not be considered for further BVEs [bridging visas], and may lose access to work rights, payments and Medicare, that he was provided with a contact number, and advised to view the “border website about info on TPV/SHEV”. The entry does not record whether during his conversation with the officer the Applicant was informed that the Minister could or would revoke his decision to allow the Applicant to apply for a TPV or SHEV.
21 May 2017 – lodge or leave announcement
On 21 May 2017 the Minister issued a media release headed “Lodge or leave – Deadline for illegal maritime arrivals to claim protection” in which he announced that the Government had that day set a deadline for unauthorised maritime arrivals (then referred to as “Illegal Maritime Arrivals (IMAs)”), such as the Applicant, to prove that they are genuine refugees and owed protection obligations by Australia. The release stated that they must lodge applications for processing by the Department by 1 October 2017. The release stated “The October 1 deadline is non‑negotiable”.
As the last day for lodging applications fell on a Saturday (30 September 2017), and Monday, 2 October 2017 was a public holiday in Sydney, which is where all such applications must be sent, by operation of s.36(2) of the Acts Interpretation Act 1901 (Cth), the date from which applications were prevented was 4 October 2017.
Further contact between the Department and Applicant
Two unsuccessful attempts to contact the Applicant are noted in the chronology – on 26 April 2017 and 22 May 2017.
On 30 May 2017, a Compliance Status Resolution (CSR) officer in the Department rang the Applicant on his mobile phone. The chronology notes that the Applicant “intends to lodge and requires FOI/complaint documents and invitation to apply letters. SA [South Australian] Status Resolution will provide copies of all documents and ensure hand to hand delivery to [the Applicant]”. The chronology records that the next day, 31 May 2017, the Applicant failed to attend the interview with the CSR officer and to collect documents, and that “SA Status Resolution are unable to contact the Applicant by phone and he is not responding to voice messages or texts.”
On 8 September 2017, the Department sent a further letter, this time to the Applicant’s updated address in South Australia (fifth letter). The letter advised the Applicant that he must apply for a TPV or SHEV before 1 October 2017. The letter further specified that if the Applicant does not apply before that date, he will be taken not to be seeking protection and are expected to depart Australia” and that he will be “barred from applying for any visa in Australia, [and] lose access to [services]”. What appears to be a Tamil translation of the letter accompanies it.
September 2017 - submission to Minister and Revocation Decision
On 12 September 2017 the Department made a written submission to the Minister for decision on steps necessary to give effect to the 1 October deadline that had been announced on 21 May 2017. On 19 September 2017 – by what I have defined at [4] as the Revocation Decision - the Minister agreed to revoke his bar lift determinations, and to amend his s.46A guidelines, and signed 3 attachments. He noted Departmental arrangements for non-lodgers after 1 October 2017. I describe the written submission and the Revocation Decision further below at [57] – [67].
Last chance letter and subsequent events
On 22 September 2017, the Department sent a letter to the Applicant titled “Last notice – 1 October 2017 – deadline to apply for a Temporary Protection visa or a Safe Haven Enterprise visa” (sixth letter) in which the Applicant was advised that if he was seeking protection in Australia he must apply by 1 October 2017. In the sixth letter the Department advised that the Minister had made a decision under s.46A(2C) of the Act to revoke or cancel his determination that allowed the Applicant to apply for a TPV/ SHEV, and that the revocation or cancellation would take effect on 1 October 2017. The Applicant was advised that if he did not apply before 1 October 2017, he would be barred from applying for a TPV or a SHEV and would need to make arrangements to depart Australia. If he did not make arrangements to depart he would be subject to detention and removal from Australia. This letter was returned to sender by 19 October 2017.
On 4 October 2017 the Revocation Decision came into effect, revoking the lifting of the s.46A bar. Thereafter, s.46A(1) again operated to prevent (inter alia) the Applicant, whilst in Australia, from making a valid application for a visa.
On 18 January 2018, the Applicant was located and detained under s.189(1) of the Act, and subsequently taken into detention at Villawood Immigration Detention Centre.
On about 19 or 22 January 2018, at Villawood, the Applicant was interviewed by a Departmental detention case manager. He informed the case manager that he has a “phobia of leaving his room”, and elaborated on the reasons that he is seeking protection in Australia. He said that that he did not have anyone to help him write his reasons for not wanting to return to Sri Lanka. That afternoon, a person from Border Force requested that the Applicant obtain an assessment from a mental health provider.
Shortly after the Applicant was placed in detention at Villawood the Department conducted a further IRSR assessment (as to the first IRSR, see above at [36]). The second IRSR was concluded on 29 January 2018 with a director’s approval of the responsible IRSR officer’s assessment. The second IRSR stated that the Department had not received a diagnosis or mental health assessment in relation to the Applicant’s claimed reasons for not applying for a SHEV before the 1 October 2017 deadline. I discuss the second IRSR further below.
On 28 February 2018, the Applicant lodged an application for a SHEV with the assistance of Refugee Advice and Casework Services (RACS). Accompanying the application was a submission by RACS dated 28 February 2018 which included a request that if the visa application lodgement is barred, the Minister exercise his powers under s.46A(2) to lift the s.46A bar to allow the Applicant to make a valid application.
By letter dated 2 March 2018, the Department advised the Applicant his SHEV application was not valid and was invalid because it did not meet s.46A of the Act. This is the SHEV application in relation to which the Applicant seeks mandamus in this Court.
At about this time an officer of the Department conducted the third IRSR as set out in the document dated 2 March 2018, and approved by a director on 3 March 2018. Whilst that IRSR refers to the Applicant’s SHEV application (made 28 February 2018, referred to in the third IRSR as made 1 March 2018), and the Applicant’s claims made by the SHEV application, there is no reference in it that indicates that the RACS’ submission was considered. (There is reference, however, to the RACS’ submission in a “Section 46A Ministerial Intervention assessment” attached to the third IRSR, and indicated in its footer to be part of the same document: see below at [54].)
In or around 7 March 2018, the Applicant attended an appointment with a psychiatrist. An officer of the Department outlined in the Assessment (which I refer to in the next paragraph):
The psychiatrist has noted a working diagnosis of ongoing anxiety disorder combined with social phobia, with a differential diagnosis of a panic disorder with agoraphobia (perceptions that places/situations are unsafe). Following this consultation, [the Applicant] has commenced treatment. IHMS have noted that these conditions may impose a barrier to participating in his immigration processes and lodging applications.
The SHEV application was taken to be a request for Ministerial intervention under s.46A(2), was assessed by the Department, and found by it not to meet the guidelines for referral, and finalised by the Department without referral to the Minister as recorded in a “Section 46A Ministerial Intervention” assessment dated 9 March 2018 (Section 46A MI Assessment). As I have noted at [52], the Section 46A MI Assessment is comprised in the third IRSR as further pages of that document, having the same footer reference. The Applicant’s diagnosis of various mental health conditions including agoraphobia is noted in the Section 46A MI Assessment, with the observation that “it is unclear, without further information, whether these were a direct barrier to him lodging an application by 1 October 2017”.
On 28 March 2018 the Department advised RACS on behalf of the Applicant of the outcome of the Section 46A MI Assessment: that the request was found not to meet the Guidelines as a case to be referred to the Minister.
On 11 May 2018, Australian Border Force served a Notice of Intention to remove the Applicant from Australia on 15 May 2018 pursuant to s.198(2) of the Act.
Ministerial submission to give effect to 1 October deadline
As I have recited above, the Department made a submission to the Minister dated 12 September 2017 under the subject heading “Giving effect to the 1 October deadline for Illegal Maritime Arrivals (IMAs) to lodge an application” (Ministerial submission). In the submission the Department set out recommendations for the Minister’s decision, and requested that they be actioned no later than 18 September 2017 in order to ensure instruments are in place to give effect to the Government’s 1 October lodgement deadline. Under the subheading “Recommendations” 3 paragraphs were set out as follows:
Recommendations
That you:
l. agree to revoke your bar lift determinations allowing IMAs to lodge a Temporary Protection (subclass 785) visa (TPV) and Safe Haven Enterprise (subclass 790) visa (SHEV) with effect from 1 October 2017. If agreed, sign the instrument at Attachment A and the accompanying statement to Parliament at Attachment B; and
agreed/not agreed
2. agree to amend your s46A Guidelines to specify that you will only consider re-lifting the application bar after 1 October 2017, in compelling and compassionate circumstances. If agreed, sign the amended guidelines at Attachment C; and
agreed/not agreed
3. note arrangements for non-lodgers after 1 October and strategies the Department is deploying to mitigate the legal, personal security and community protection risks associated with the implementation of the deadline.
noted/ please discuss
(In these reasons I refer to these 3 paragraphs as the recommendations).
The Ministerial submission then addressed key issues, background, consultations and certain other matters in the body of the submission, and attached 3 documents, to be signed as directed in recommendations 1 and 2 if the Minister agreed to the respective recommendation:
-attachment A: Revocation of Determinations Permitting the Making of a Valid Application for a [TPV] or a [SHEV] (instrument for signature by the Minister acting under s.46A(2C), listing in a schedule 1 the determinations to be revoked, by submission number and date);
-attachment B: Statement to Parliament [under sub‑s.46A(4)] on Revocation of Determinations Permitting the Making of a Valid Application for a [TPV] or a [SHEV] (statement for signature by the Minister); and
-attachment C: Minister’s s46A Guidelines (procedural instruction).
The Ministerial submission, at [5], stated that Departmental arrangements were being finalised to support the referral of IMA “non‑lodgers” - those unauthorised maritime arrivals who had not yet lodged a TPV or SHEV application by 1 October 2017 – for the granting of Final Departure Bridging E Visas and for cessation of SRSS (status resolution support services). In the following section “Background”, under the sub-heading “Non-lodgers – next steps”, the Department then stated at [9] and [10]:
[9] IMAs who do not lodge before the deadline will be referred to Status Resolution officers in the Department’s State and Territory offices. They will be granted a Final Departure Bridging E visa. Community Protection Division has begun assessing the vulnerability of IMAs who have not lodged a TPV or SHEV application to determine their eligibility for ongoing support if they do not engage in the process. Those with no identified vulnerability will have services ceased and income support removed as per the 2017-18 budget measure, immediately after the application, those identified with a potential vulnerability will be invited for interview to determine next steps towards departure and if support services are required. Interviews will be schedule from 5 October 2017. The specific criteria guiding the Department’s decision making in relation to support services are that the person is unable to depart Australia due to:
·Medical advice that the person is not fixed to travel.
·A community protection risk or risk to others that can be mitigated by access to medication or treatment; or
·An immediate self-harm risk.
[10] Concurrently, the Department will undertake an assessment of each IMA’s [that is, “illegal maritime arrivals” / also termed “unauthorised maritime arrivals” or “UMAs”] entry interview, records of any previous claims raised and country information to identify any potential protection based barriers to removal. If non-refoulement issues are raised that suggest that removal might be in breach of Australia’s obligations under international law, the Department will prepare a submission for [the Minister’s] consideration setting out options for status resolution, including re-lifting the bar to fully assess protection, or granting a long-term Final Departure Bridging E visa.
In succeeding paragraphs [11] – [13] of the submission, the Department then set out the steps it would take in relation to three groups of non‑lodgers: first, those non‑lodgers who do not take steps to depart voluntarily, and those who disengage from the Department, who would be referred to Australian Border Force (at [11]); second, those IMAs who may later approach the Department and seek the Minister’s re‑intervention to lift the s.46A bar, who would be dealt with in accordance with the revised Guidelines (at [12]); and third, a small number of IMAs who would not be able to lodge an application before 1 October due to acute mental or physical health reasons, in respect of whom the Department proposed to put forward submissions allowing the Minister to consider alternative status resolution under the Minister’s Ministerial intervention powers (at [13]).
The Ministerial submission then proceeded to identify 3 key areas that the author(s) considered likely to result in legal challenge, under subheadings “Your decision to revoke your original bar lift determination”, “Inability of those who miss the deadline to lodge an application and put forward claims” and “Involuntary removal of IMAs who came to Australia to seek protection”. In relation to the first subheading, in a paragraph the Applicant says supports his argument, the writer opined at [15] that:
It might be argued that, in the absence of an express exclusion, the rules of natural justice apply to the exercise of the revocation power under s.46A(2C) and that this requires that each affected person be given an opportunity, in advance of the exercise of the power, to make representations as to why it should not be exercised in their case. We would argue that this is impractical in the present context and that, instead, each potentially affected adult IMA has received a minimum of two direct letters from the Department communicating the application deadline and the consequences of not meeting it. This has been supported by outreach through culturally and linguistically diverse media outlets, SRSS providers, community organisations and direct phone calls from the Department’s Status Resolution officers. …
S.46A Guidelines (amended)
As I have described above at [57] ‑ [58], the Ministerial submission also invited the Minister to agree to amend the Minister’s s.46A(2) Guidelines (attachment C to the Ministerial submission). The Minister gave his agreement to amendment in the Revocation Decision (as to which, see below).
The Guidelines (as amended), according to the “scope”, set out in section 2, informed Departmental officers of the circumstances in which the Minister may wish to consider the exercise of the Minister’s public interest power under s.46A(2). They also include information about when and how to refer cases to the Minister in order for the Minister to decide whether to exercise the Minister’s non-compellable and non-delegable power in the public interest. Section 2 states “these guidelines do not cover any of my other public interest powers”. The Applicant directs attention to the narrowing of the cases that should be referred to the Minister for consideration of the exercise of the Minister’s public interest power, to where (at 5.2.1):
A UMA [unauthorised maritime arrival] has raised protection plausible protection claims, did not lodge a TPV or SHEV application before I revoked their initial s46A bar lift determination with effect from 1 October 2017, and has objective evidence of compelling and compassionate reasons that were beyond their control for missing the application deadline.
Other circumstances, however, in which cases should be referred to the Minister for consideration of the exercise of the Minister’s public interest power specified in the Guidelines, set out directly following the above direction, include, inter alia, where an unauthorised maritime arrival (UMA) had had their protection claims considered through one of the Department’s non-statutory processes and been found to engage Australia’s protection obligations under s.36(2) of the Act, and where as a result of judicial review by an Australian court, an error of law was identified and reconsideration of their protection claims is required, or where a UMA has new or additional protection claims that the Department has determined warrant further consideration in a statutory process, who could include “UMAs with unresolved non-refoulement concerns preventing removal”. The Minister also retained the capacity to personally request that a matter be referred to the Minister for consideration of a new bar lift.
The Guidelines state that if an unauthorised maritime arrival’s case does not meet the Guidelines, the case should not be referred to the Minister for consideration of the exercise of the Minister’s public interest power. The Minister generally expects such persons to depart Australia. However, at 5.2.2 of the Guidelines, the Minister also directed that even if a UMA’s circumstances do not meet the Guidelines, but their case raises unique and exceptional circumstances (e.g. intractable barriers to their removal), it should be referred to the Minister for consideration against the Minister’s other ministerial intervention guidelines, which were then listed. Thus the Guidelines on their face make allowance for circumstances in which a case may be referred to the Minister, beyond those contemplated in the described ‘scope’ of the document.
The Guidelines state (at 5.3.1) that the Minister expects that in most cases the Department will identify cases that meet the Guidelines and refer them to the Minister by way of a ministerial submission for the Minister’s consideration. The Guidelines set out the information that, non-exhaustively, the Minister expects to be included in such a referral.
Revocation Decision
On 19 September 2017, the Minister personally addressed the recommendations made in the Ministerial submission (set out above at [57]), circling his response, signing and dating the document and, in the section reserved for comments, providing a comment directing that “under paragraph 9 the medical testing must be conducted by a CMO Thanks”. In relation to paragraph 1, the Minister circled the word “agreed”, and signed and dated the instrument at attachment A, and the accompanying statement to Parliament at attachment B, and so agreed to revoke the s.46A bar lift. In relation to paragraph 2, the Minister circled the word “agreed”, and signed and dated the amended Guidelines at attachment C, and so agreed to amend the s.46A Guidelines. In relation to paragraph 3, the Minister circled the word “noted”, and so noted the “arrangements for non-lodgers … and strategies the Department is deploying to mitigate the legal, personal security and community protection risks associated with the implementation of the deadline.”
IRSR assessments
In total three Informed Referral of Status Resolution assessments (IRSR) were undertaken in relation to the Applicant. As I have stated above, the first IRSR was concluded on 18 April 2017, and the second and third IRSR were conducted after the Applicant was placed in detention at Villawood. By the particulars to Ground 2 of his grounds of review, the Applicant challenges the second IRSR and the third IRSR (see below Grounds of review at [78]). No issue is taken with the first IRSR as it was conducted before the Ministerial submission was provided.
The IRSR documents each stated that the informed referral was “to assist Status Resolution to determine an appropriate pathway for an IMA who has been invited to apply for a protection visa but has not engaged in the process and has not lodged a protection visa application”.
As I have noted in relation to the first IRSR, each of the second and third IRSRs was stated on its face not to be an assessment of any protection claims raised by the person the subject of the IRSR (i.e., the Applicant), but instead a check of the material available to the Department to inform subsequent discussions between the Applicant and an officer. Each IRSR concluded with an assessment, as I have described in relation to the first IRSR above at [36]. Each IRSR concluded that Australia would not breach its non-refoulement obligations if the Applicant was returned to Sri Lanka.
In the first IRSR, in the section “Consideration” at section 4 in response to the form question “Based on the above, has the [Applicant] expressed a fear of harm that relates to Australia’s non‑refoulement obligations that that (sic) is plausible and appears to have substance?” the Department officer stated the following:
·This person’s claims are manifestly unfounded. This person has not provided any detail to elaborate on his claim that he will be treated in the manner he has claimed upon return to Sri Lanka. I do not consider based on the country information before me that he has expressed a fear of harm that appears to have substance. The country information does not support that persons with this claimed profile would face harm on return.
In the second IRSR, the response by the relevant officer to the above question included the following:
·At his Entry interview this person indicated the primary reason for him fleeing Sri Lanka was for economic reasons. He later provided details regarding the harm that he fears in the event he were to return to Sri Lanka on the basis of his race as a Tamil from the North and his perceived association with the LTTE. However, without further information, the IMA’s claims in this regard cannot be fully tested and no assessment has been undertaken in respect of the credibility of the IMA’s claims
·This person has not provided any detail to elaborate on his claim that he will be treated in the manner he has claimed upon return to Sri Lanka. I do not consider based on the country information before me that he has expressed a fear of harm that appears to have substance. …
In the third IRSR, the response by the relevant officer to the above question was the following:
·Despite being invited to apply for a Temporary Protection or Safe Haven Enterprise visa, the IMA failed to apply by the 1 October 2017 deadline. The Department did not receive a diagnosis or mental health assessment in relation to his claimed reasons for not applying for a Temporary Protection or Safe Haven Enterprise visa before the 1 October 2017 deadline.
·At his Entry interview this person indicated the primary reason for him fleeing Sri Lanka was for economic reasons. He later provided details regarding the harm that he fears in the event he were to return to Sri Lanka on the basis of his race as a Tamil and his perceived association with the LTTE. Whilst it is difficult to properly assess the IMA's credibility without an interview, given the above country information I find his claims as stated on the copy of his SHEV application lack plausibility, given the very tenuous link the IMA claims to have with former LTTE members.
·Since his arrival in Australia, the country information indicates that situation has improved for Tamils and those associated with the LTTE. The country information does not support that Tamils or someone with the tenuous links the IMA claims to have with former LTTE members would face harm on return.
·Further the country information does not support that failed asylum seekers who departed Sri Lanka illegally would face harm upon return.
·Overall country information does not support that persons with the IMA's claimed profile would face harm of sufficient gravity as to engage Australia's protection obligations on return to Sri Lanka.
Each IRSR considered certain country information. It is common ground that the Applicant was not informed of the IRSR process, that none of the personal or country information was put to the Applicant, and that he was not invited to comment or make submissions. Each IRSR was an internal Departmental assessment.
Relevantly, in the second and third IRSRs, the Departmental officers formed the view that “there appears to be no protection barriers to involuntary removal, based on the information before [the Departmental officer] and in the absence of a protection visa application”. The views so expressed in the second and third IRSRs concluded the process described in the Ministerial submission at [10]. It is apparent from the material in evidence before me that no steps were taken by the Department to prepare a submission regarding the Applicant for the Minister’s consideration.
Proceeding before this Court
On 14 May 2018, the Applicant filed an application in this Court seeking an urgent injunction restraining the Minister’s officers or agents from removing the Applicant from Australia pursuant to the Removal Decision made under s.198(2) of the Act (see [1] above), pending the determination of the application. That morning, the matter was heard on an interim basis before Judge Emmett. The Minister provided the Court with a written undertaking that the Applicant would not be removed before the matter was next before the Court on 17 May 2018.
On 17 May 2018, the matter came before me. Mr Gormly appeared for the Applicant and Ms Watson appeared for the Respondents. The Applicant sought a further interim order restraining his removal pending the final determination of the application. Ms Watson informed the Court that she was not able to obtain further instructions as to the Minister providing another undertaking not to remove the Applicant but advised that the Minister would provide reasonable notice to the Applicant if the position changes. I made orders extending the injunction in terms that, until further order, the Minister, his officers and agents, be restrained from removing the Applicant from Australia. I granted the Applicant leave to file and serve any amended application by 25 May 2018, which was done.
Applicant’s grounds of review
The Applicant has advanced two grounds in his amended application dated 25 May 2018, as follows (without alteration, save for the addition of emphasis in bold, and notations in square brackets):
[Ground 1]
(1)That the removal decision made pursuant to s 198(2) of the Act and notified to the applicant on 11 May 2018 was affected by jurisdictional error because s 198(2)(c)(ii) did not apply to the Applicant, who had made a valid application for a Safe Haven Enterprise (subclass 790) visa in February 2018 which has not been finally determined, the validity of which was not affected by the decision of the first respondent under s 46A(2C) of the Act on 19 September 2017 to revoke the previous decision he made under s 46A(2) in about May 2016 to lift the bar under s 46A(l) by which the Applicant was allowed to apply for a visa, this revocation decision being affected by jurisdictional error in that the First Respondent had failed to afford procedural fairness to the Applicant before making the revocation decision.
A.Particulars of non-application of s 198(2)(c)(ii)
a.Contrary to s 198(2)(c)(ii), on about 28 February 2018 the Applicant made a valid application for a Safe Haven Enterprise (subclass 790) visa which has not been finally determined.
b.The Minister wrongly did not recognize this application as valid on the basis that it was affected by the Minister's revocation decision under s 46A(2C).
B.Particulars of jurisdictional error of s 46A(2C) revocation decision.
a.The rules of natural justice applied to the exercise of the first respondent's revocation power under s 46A(2C) as that section conferred a power to 'destroy, defeat or prejudice the rights, interests or legitimate expectations' the Applicant had obtained by the exercise of the Respondent's power to lift the bar under s 46A to allow him to apply for a visa.
b.The applicant was not given an opportunity to be heard on why the revocation power should not be exercised in his case.
c.The respondent nevertheless made the revocation decision upon advice that it was 'impractical' to afford procedural fairness to those affected by the decision.
[Ground 2]
Further or in the alternative to Ground 1:
(2)That the assessment of protection based barriers to removal undertaken by the Department of Home Affairs in respect of the applicant as a 'non-lodger' upon a personal procedural decision made by the first respondent on 19 September 2017 to consider the exercise of his powers under ss 46A and 195A of the Act in respect of 'non-lodgers' was affected by legal error in that the assessor failed to accord the applicant procedural fairness in relation to the assessment.
Particulars
(i)On 19 September 2017 the first respondent personally made a procedural decision in respect of 'non-lodgers' who, like the applicant, had had the 46A bar lifted but who had not lodged an application for protection visa prior to 1 October 2017.
(ii)This decision was that the Minister would consider the exercise of his powers under both s 46A to relift the bar to allow a non-lodger to apply for a visa, and under s 195A, to grant a detained non-lodger a Bridging visa and that, to inform this consideration, the Department would undertake an assessment of each non‑lodger's entry interview, records of any previous claims raised and country information to identify any potential protection raised barriers to removal and setting out options for status resolution, including the exercise of the powers under ss 46A and 195A.
(iii)Following the Minister's decision, Departmental officers conducted assessments of protection barriers to removal in respect of the applicant which were recorded in the "Informed Referral to Status Resolutions" dated 29 January 2018 and 2 March 2018 (the IRSRs). [in these reasons I have referred to these IRSRs as the second IRSR and the third IRSR]
(iv)It may be inferred that the IRSRs were a part of the assessment inquiry referred to at (ii).
(v)As the assessment inquiry at (ii) extended the applicant's immigration detention, the conduct of it was subject to the rules of procedural fairness.
(vi)The first respondent failed to afford the applicant procedural fairness in that the assessment inquiry at (ii) did not give the applicant an opportunity to be heard by either putting the applicant on notice of the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry or the nature and content of country information upon which the assessor would rely in coming to a conclusion adverse to the interests of the applicant.
In the amended application the Applicant describes as the migration decisions that he challenges first, the Removal Decision, and secondly, “A future decision or other action by the Minister or an officer under the Migration Act”, which such future decision is made by an unknown officer of the Department on an unknown date. Particulars (iii) to Ground 2 identify the second and third IRSRs as being conducted further to the Minister’s personal procedural decision particularised in (i), and argument clarified that particular (iv) links the IRSRs back to the process described in the Ministerial submission at [10], whilst particular (v) specifies that the rules of procedural fairness arise “as [because] the assessment inquiry at (ii) (which by (iii) the Applicant says inferentially includes the second and third IRSRs) extended the [A]pplicant’s immigration detention”.
Jurisdiction
Section 476 of the Act
Pursuant to s.476(1) of the Act, this Court only has jurisdiction to review a decision for jurisdictional error if the decision is “in relation to migration decisions”. A “migration decision” is defined in s.5 of the Act as:
(a)a privative clause decision; or
(b)a purported privative clause decision; or
(c)a non-privative clause decision; or
(d)an AAT Act migration decision.
In relation to Ground 1, the parties agree that the Revocation Decision is a “migration decision” within the meaning of s.476(1), being a privative clause decision as defined in s.474(2) of the Act, and, not being a decision excluded from this Court’s jurisdiction pursuant to s.476(2)(d) read with s.474(7), and thus the Court has jurisdiction in relation to it. It is not disputed that the Removal Decision is, likewise, a migration decision, in relation to which the Court has jurisdiction to review.
In relation to Ground 2, the parties agree that whether the Minister made a personal procedural decision, and the characterisation of the IRSR assessment (relevantly being the second IRSR and the third IRSR), is in each case a question of fact.
Mr Gormly for the Applicant argues that the Minister’s noting of paragraph 3 in the recommendations set out in the Ministerial submission is assent to the Department’s process described at [10], and is direct evidence of the Minister making a personal procedural decision to consider whether to exercise his powers under ss.46A and 195A, and that the Department’s process described at [10] of the submission, and the IRSRs made as part of that process, were to inform this consideration, and were therefore, under and for the purposes of ss.46A and 195A of the Act.
Mr Gormly contends that the IRSR process is essentially the same in nature as the ITOA process described in Minister for Immigration v SZSSJ [2016] HCA 29; (2016) 259 CLR 180, at [58] to [73]. He says further that in the present case the Court has before it direct evidence of the Minister’s decision, unlike the circumstances in SZSSJ, where there was no direct evidence of the Minister’s procedural decision (see Full Court SZSSJ and Others v Minister for Immigration and BorderProtection and Others (No 2) [2015] FCAFC 125; (2015) 234 FCR 1, at [80]-[82]). Mr Gormly says the content of the procedural fairness obligation is as stated by the Full Court in SZSSJ at [83].
Ms Watson for the Minister and Second Respondent (for convenience I will refer to both Respondents as the Minister) submits that the IRSRs were not initiated under any procedural decision made by the Minister to consider the exercise of his powers under s.46A, or any other provision under the Act, and hence each IRSR is not a ‘migration decision’ within the meaning of s.476(1). In his Response the Minister submits that this Court does not have jurisdiction to consider this part of the application.
Thus, a preliminary issue is whether the Court has jurisdiction in relation to Ground 2.
Ground 1
The central issue arising under Ground 1 is whether the Minister was obliged to and did afford the Applicant procedural fairness before exercising his revocation power, revoking the lifting of the bar under s.46A(2C) of the Act.
Mr Gormly on behalf of the Applicant contends that the Revocation Decision was invalid to restore the s.46A(1) bar against the Applicant because the Minister was required to afford the Applicant procedural fairness before revoking the lifting of the s.46A bar, and the Minister did not afford the Applicant procedural fairness. In the event that the Revocation Decision did not re‑impose the s.46A(1) bar (because, the Applicant says, procedural fairness was denied), the Applicant’s SHEV application made 28 February 2018 is valid, and the proposed removal of the Applicant is not required or authorised by s.198(2)(c)(ii) of the Act. The Removal Decision therefore is affected by jurisdictional error, and is invalid. Accordingly, s.47 of the Act requires the Minister to consider the Applicant’s SHEV application.
The Applicant says he is owed procedural fairness in respect of the proposed exercise of the s.46A(2C) revocation power under the principles described by the High Court in Plaintiff M61 at [74]:
It was said, in Annetts v McCann, that it can now be taken as settled that when a statute confers power to destroy, defeat or prejudice a person’s rights, interests, or legitimate expectations, principles of natural justice generally regulate the exercise of that power. … It is well established, as held in Annetts, that the principles of procedural fairness may be excluded only by “plain words of necessary intendment”. (citations omitted)
The Court (at [75]) then approved the more comprehensive statement of principle by Mason J in FAI Insurances Ltd v Winneke (1962) 151 CLR 342 at 360 that the obligation to afford procedural fairness is not limited to cases where the exercise of the power affects rights in the strict sense, but extends to the exercise of a power which affects an interest or a privilege.
Mr Gormly contends that the presumption of procedural fairness is implied in s.46A(2C) because the function of the provision “is to destroy existing rights”. Those rights include, he says, the right the Applicant had immediately prior to 1 October 2017 to make a valid application for a TPV or a SHEV (which right arose consequent upon the Minister having lifted the bar), to have that application considered with the benefit of the procedural fairness allowed by subdivision AB of Div. 3 of Part 2 of the Act, to have a merits review of the delegate’s decision on that application by the Immigration Assessment Authority according to Part 7AA of the Act, to seek judicial review of the Authority’s decision in the event of jurisdictional error by the Authority, and, in the event the Applicant was detained, to apply for a bridging visa for release from detention on the basis of having made a TPV or SHEV application.
Hence, he says, the Minister was required to afford the Applicant procedural fairness, including giving him “a reasonable opportunity to be heard about why the revocation should not be exercised in his case”. He says that notification of the impending dropping of the s.46A(1) bar, and that the Applicant would not thereafter be able to apply for a TPV or SHEV, did not suffice.
Ms Watson on behalf of the Minister argues that where, as was the case in the Minister’s exercise of the power under s.46A(2C) under consideration in the present case, the Minister is exercising a non‑compellable personal power where the only consideration is whether the exercise of such power is in the public interest, there is no requirement that an individual be invited to make submissions as to why such power should not be exercised so as to affect him or her before the power is able to be validly exercised in circumstances where such considerations are not mandatory relevant considerations. The power to revoke under s.46A(2C) is available to the Minister “if the Minister thinks that it is in the public interest to do so.”
Whilst this expression has not been judicially considered (so far as I and Counsel are aware) in the context of s.46A(2C) Ms Watson drew my attention to the High Court’s consideration of the term in the context of s.195A in Plaintiff M74/2012 v Minister for Immigration and Citizenship [2013] HCA 24; (2013) 252 CLR 336, per French CJ, Crennan and Bell JJ at [32], [39] – [42] and to Plaintiff S10/2011 v Minister for Immigration (2012) HCA 31; (2012) 246 CLR 636, at [64]-[69].
Alternatively, the Minister submits that if the exercise of power was conditioned by a requirement of procedural fairness, what was done in the circumstances is sufficient to afford procedural fairness to the Applicant. That he did not engage with the Department does not gainsay that the procedure was reasonable in the circumstances.
Consideration
It may be that the lifting of the s.46A bar to allow the Applicant to apply for a TPV or a SHEV brought into existence an interest or privilege in favour of the Applicant, rather than strictly conferring a statutory right. For a time – so long as the s.46A bar was lifted - the Applicant could apply for a TPV or a SHEV, and he thereby had an interest or expectation in so being able to so apply and have his application considered. Whether characterised as an interest or a statutory right, the Applicant had an interest apt to be adversely affected by the exercise of the revocation power in s.46A(2C): see Plaintiff S10.
In SZSSJ, the High Court explained at [75] that:
… procedural fairness is implied as a condition of the exercise of a statutory power thorough the application of a common law principle of statutory interpretation … that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercise in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme.
In Plaintiff S10, the High Court termed the non‑compellable powers provisions in ss.48B, 195A and 417 (provisions with which the Court was also concerned subsequently in SZSSJ) and s.351 as “dispensing provisions”: per French CJ and Keifel J at [27], and Gummow, Hayne, Crennan and Bell JJ at, inter alia, [57], [72], whilst Haydon J (at [102]) termed them the “empowering provisions”. As Gummow, Hayne, Crennan and Bell JJ observed at [54], the provisions “confer upon the Minister powers (but not duties) which are to be exercised by the Minister personally and if exercised, dispense with the requirements of the Act.”
In Plaintiff S10, where the presumption was displaced, Gummow, Hayne, Crennan and Bell JJ (the majority) at [98]-[99] identified statutory criteria that led to the conclusion at [100] that a combination of significant characteristics and language emphatic of both the distinctive nature of the powers conferred upon the Minister by the relevant sections, and of the availability of access to those powers to only certain persons (who had sought or could have sought, but have not established their right to, a visa) revealed the necessary intendment referred to in Plaintiff M61. French CJ and Kiefel J at [28] also identified common features of each of the dispensing provisions affecting the exercise of the power it confers.
Mr Gormly contends the presumption of procedural fairness in the exercise of the s.46A(2C) power is not displaced as it is for the exercise of the “dispensing provisions”. He says the exercise of the revocation power under s.46A(2C) does not resemble the operation of the dispensing provisions described in Plaintiff S10 at [69] as: “… to obtain a measure of relaxation of what otherwise would be the operation upon non‑citizens of the visa system; it is the requirements of that system which must be met to lift what otherwise are the prohibitions upon entry and continued presence in Australia.”
The Applicant’s argument in substance is that Plaintiff S10 is distinguishable because s.46A(2C) does not dispense with a statutory prohibition or limitation – relaxing the operation of the visa system upon non‑citizens, but rather re-instates a statutory prohibition or limitation - re-instatement of the s.46A(1) bar is taking away rights or interests. Because it is not dispensing with statutory obstacles, Mr Gormly says the provision cannot be read as containing the “plain words of necessary intendment” necessary to displace the principles of procedural fairness. He says that it is of determinative significance that the statutory provisions the High Court in Plaintiff S10 held excluded the presumption of procedural fairness were, in their nature, dispensing powers, in their exercise relaxing the operation of the visa scheme.
As the High Court said in SZSSJ at [41], Plaintiff M61 and Plaintiff S10 show that characterisation of an administrative process undertaken with a view to informing the Minister as to the possible exercise of non‑compellable powers requires close attention both to the structure of those powers and to the facts. So too, when what is being considered is the Minister’s exercise of a non-compellable statutory power as occurred in Plaintiff S10, and in the present case by the Minister’s Revocation Decision.
I do not read Plaintiff S10 as limited as Mr Gormly contends. Whilst the so-called “dispensing provisions” conferred on the Minister the power to remove statutory obstacles, and so permit a failed visa applicant to remain in Australia, and s.46A(2C) re-instates the operation of the statutory scheme (and the statutory obstacles), s.46A(2C) shares with those provisions a distinctive structure of their powers and function in the legislative scheme of the Act. It was the distinctive structure of the powers, and their place standing apart from the legislative scheme of the Act that provided the necessary intendment to displace the implied presumption of procedural fairness.
As French CJ and Kiefel J in Plaintiff S10 said at [30]:
[30]The dispensing provisions and other like provisions in the Act have a distinctive function in its legislative scheme. The Act creates a range of official powers, duties and discretions, particularly in relation to the grant of visas, which are tightly controlled by the Act itself and, under the Regulations, by conditions and criteria to be satisfied before those powers and discretions can be exercised (47). The dispensing provisions stand apart from the scheme of tightly controlled powers and discretions. They confer upon the Minister a degree of flexibility allowing him or her to grant visas which might not otherwise be able to be granted because of non-satisfaction of substantive or procedural requirements. The powers so conferred are conditioned upon a ministerial judgment of the “public interest”. That is a term to which it is difficult to give a precise content (48). It has been described in this Court as (49) “a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any object the legislature could have had in view’”. The dispensing provisions require the Minister to be personally accountable to the Parliament for decisions to grant visas made under them. Both the wide purposes for which the powers conferred by the dispensing provisions can be exercised and their non-compellable nature, indicate that they cannot be enlivened by a request for their exercise nor by the existence of circumstances which might be thought, in the public interest, to attract their application.
Section 46A(2C) shares with the dispensing provisions, with which the Court in Plaintiff S10 was concerned, the following distinctive features (by reference to Plaintiff S10 per French CJ and Kiefel J at [28]):
•the Minister must think it is in the public interest to exercise the power: s.46A(2C);
•the power may only be exercised by the Minster personally: s.46A(3);
•the Minister does not have a duty to consider whether to exercise the power, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances: s.46A(7);
…
•if the Minister does exercise the power, the Minister must cause to be laid before each House of Parliament a statement setting out, inter alia, the Minister’s decision and, in particular, the Minister’s reasons for thinking that the decision was in the public interest: s.46A(4)-(6).
It is accepted that s.46A(2C) does not share with the dispensing provision in s.195A(3) the express limitation that in exercising the power the Minister is not bound by sub-div AA or AC of Div 3 of Pt 2 of the Act, but is bound by all other provisions of the Act (c.f., Plaintiff S10 at [28] dot point 4), although I note that s.46A(2C) shares with the dispensing provision s.48B that it is located in sub-div AA of Div 3 of Pt 2 of the Act.
In Plaintiff S10 the majority at [99] listed supporting statutory criteria, each of (i) – (vii) and (ix) criteria which s.46A(2C) shares with the dispensing provisions:
(i) the power may be exercised by the Minister personally, and may not be delegated;
(ii) by the tabling requirements the Minister is rendered accountable in an immediate sense to each House of Parliament for exercise of the power;
(iii) the exercise of the power is not preconditioned by the making of any request by any other person, and, if a request is made there is no requirement to consider it;
(iv) the exercise of the power is preconditioned by (a) the Minister having decided whether to exercise the power in question, and (b) the Minister thinking that it is in the public interest to exercise it, but the Minister is not obliged to take either step;
(v) the expression “in the public interest” can have no fixed and precise content and involves a value judgment … the legislative supposition upon which the dispensing powers are conferred – and true also of the powers in s.46A(2) and s.46A(2C) – is that there will be cases in which the requirements which otherwise control the administration of the Act are not to dictate a particular outcome;
(vi)whilst the personal circumstances of an individual may be taken into account, they are not a mandatory relevant consideration;
(vii) individual rights and interests are dealt with by provisions of the Act regulating applications and providing for review of decisions concerning visas (that is, not the dispensing provisions or s.46A(2C); …
(ix)the focus of the section is upon the Minister’s view of the public interest rather than upon the satisfaction of conditions for the issue of visas.
In sub-paragraph [99(viii)] the majority noted that the premise for the operation or engagement of each of the dispensing provisions in the circumstances of the plaintiffs in Plaintiff S10 was that there had either been the refusal of a protection visa, that on merits review the relevant tribunal had determined there is no right to the visa sought or that the person concerned either had unsuccessfully applied for a visa, or, at least while in detention, could have done so.
Whilst those criteria do not find an exact analogue in the structure of the section within which s.46A(2C) sits, the circumstances in which the Revocation Decision was made provides substantial similarities. By the lifting of the s.46A(1) bar by the Minister’s earlier exercise of s.46A(2), the Applicant was placed in a similar circumstance as the plaintiffs in Plaintiff S10: he was provided the opportunity to apply for a TPV or SHEV and so avail himself of the provisions of the Act regulating applications and providing for review of decisions concerning visas, although he did not avail himself of that course. Thus, temporally, the Applicant was in the same position in the period immediately before the Revocation Decision as the plaintiffs in Plaintiff S10: see at [80].
In Plaintiff S10 at [2] French CJ and Kiefel J concluded that the valid exercise of the powers conferred by those sections, to consider whether to exercise the powers conferred by those sections, is not conditioned upon compliance with the requirements of procedural fairness.
At [96] the majority accepted the Minister’s submission that the extraordinary nature of the dispensation provisions, with which [Plaintiff S10’s cases] are concerned, and their exceptional place within the scheme of the Act respecting visas, provide a basis to exclude what otherwise might be an implication of procedural fairness. The majority stated at [100] that:
“the use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister (as personal, non‑compellable, “public interest” powers) and of the availability of access to the exercise of those powers only to person who have sought or could have sought, but have not established their right to, a visa is of determinative significance. It reveals the “necessary intendment” referred to in [Plaintiff M61] that the provisions are not attended by a requirement of procedural fairness.”
As is the case with the dispensing provisions, s.46A(2C) turns on the discretionary invocation of power by the Minister, acting in what he thinks is the public interest, not reviewable under the Act itself. This, and the other criteria which s.46A(2C) shares with the dispensing provisions that I have identified above, sets s.46A(2C) apart from the conventional statutory regime of the Act. In circumstances where the s.46A(1) bar was lifted, placing the Applicant in a similar position to the plaintiffs in Plaintiff S10, the terms in which the power in s.46A(2C) is cast, and the circumstances in which the Minister’s power is to be exercised expressed in s.46A as a whole (see above at [105] and [107]), suggest that no rights to procedural fairness exist in relation to the Minister’s exercise of that power by the making of the Revocation Decision.
In my view, the particular statutory scheme in which s.46A(2C) is situate (s.46A read as a whole), the emphatic language and the limited circumstances in which s.46A(2C) operates – only where the power in s.46A(2) has been exercised, and only to persons who had been afforded dispensation from the s.46A(1) bar or a sub-set of such persons – lead to the conclusion that the provision evinces the necessary intendment to displace a requirement that the Applicant be afforded procedural fairness before the Minister made the Revocation Decision. I do not consider that it is necessary to evince a necessary intendment in accordance with the principle in Annetts, as explained by the High Court in Plaintiff M61 and SZSSJ, that s.46A(2C) be “dispensing”.
Further support for my conclusion can be found in Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; (2013) 252 CLR 336, per French CJ, Crennan and Bell JJ’s consideration at [32], [39], [40] and [42] of the crucial feature of s.195A – that it was matter for the Minister to judge whether it was in the public interest whether and for what purposes to exercise the power.
Should I be wrong, I consider that the Applicant was afforded procedural fairness in the exercise by the Minister of the revocation power of s.46A(2C) by the Revocation Decision. Procedural fairness is afforded when the procedure adopted is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by the exercise of power: see SZSSJ at [82] – [83].
The chronology of letters to, and communications with, the Applicant set out at [28]–[33], [37]–[38], [42]–[43] and [45] above shows that the Applicant was given information in writing on at least 5 occasions that he needed to lodge his application within specified timeframes, and he was by the third, and fourth letters specifically notified that his case would be referred to the Minister to consider the exercise of the Minister’s power to revoke/change his decision. The Applicant was also on 30 May 2017 verbally advised about the correspondence and arrangements were made to provide copies to him (see above at [42]). The Applicant’s failure to do anything in response to the correspondence or to attend the meeting arranged with him, does not lead to the conclusion that he was denied procedural fairness. The Applicant was on notice that a decision would be made, and the nature of the decision.
Thus the Applicant was notified of the limitations on the time available to him to lodge a TPV or SHEV, he was informed that if he didn’t do so, his case would be referred to the Minister, and he was subsequently informed of the impending October deadline, and that thereafter he would no longer be able to apply for the visa. He had notification, opportunity, and further opportunity to raise any issues or make any submissions why the Minister should not revoke his s.46A(2) determination. I consider that the procedure adapted was reasonable in the circumstances, as said in SZSSJ at [82] – [83]. It was not reasonable in the circumstances that the Applicant be expressly invited to make submissions why the revocation of the lifting the bar determination should not apply to him, nor was it necessary that s.462A(2C) be expressly referred to by section number.
It follows that I find that there was no jurisdictional error in the Revocation Decision, the SHEV application is invalid, and the Removal Decision is valid. Ground 1 fails.
Ground 2
Under Ground 2, there is a factual issue as to whether the IRSR assessments (the second and third IRSRs) were made as a result of a procedural decision made by the Minister to consider making a substantive decision to exercise his dispensing powers.
The Applicant contends that the Minister had made a personal procedural decision to consider exercising his dispensing powers under s.46A(2) to “relift” the bar for non-lodgers, or under s.195A to grant a long-term final departure Bridging E visa, depending on whether the Department found that the Applicant engaged Australia’s non‑refoulement obligations.
The Applicant relies on SZSSJ at [45] and Plaintiff M61 at [9] and claims that the IRSR assessments were “under and for the purposes of” the exercise of the powers in s.46A and s.195A, as being essentially the same in nature as the ITOA process described in SZSSJ at [58] – [73] (as I noted above at [84]). The Applicant says that the IRSR process was subject to the requirement of procedural fairness because the Applicant’s rights to liberty were affected as his detention was extended while the assessment of protection based barriers were being carried out.
Mr Gormly argues that it may be inferred from the description of the process at [10] that the IRSRs were part of the process by which non‑refoulement issues were to be assessed. The process contemplates preparation of a submission where such issues have been identified. Mr Gormly says the Minister is not bound by the Guidelines. He says the Guidelines are expressed not to cover any of the Minister’s other public interest powers and so do not apply to s.195A (but see description of the Guidelines at [62]-[66]).
The Minister argues that the position in SZSSJ is distinguishable from the present case and that the IRSR process is not a decision which has a statutory basis.
Two step process
In Plaintiff M61, the Court stated at [70] of the structure of the powers given by ss.46A (in the form it then stood) and s.195A, that exercise of the powers given by the provisions is constituted by two distinct steps.
In SZSSJ, the High Court confirmed that the non‑compellable powers provisions ss.48B, 195A and 417 of the Act incorporated two decision making steps, first, a procedural decision, and second, a substantive decision, and that the characterisation of the processes undertaken by officers of the Department to assist the Minister in the Minister’s consideration of the possible exercise of a non‑compellable power depend on whether those processes are adopted before or after a procedural decision has been made. The Court explained, at [53] ‑ [54]:
[53] First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.
[54] Secondly, processes undertaken by the Department to assist in the Minister’s consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister’s consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister’s instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.
Thus, conduct engaged in before a personal procedural decision by the Minister has been made has no statutory foundation, conduct engaged in after such a decision has a statutory foundation – it is conduct under the Act. Underpinning both Plaintiff M61 and SZSSJ was that in each case there had been a ministerial procedural decision prior to the Department undertaking the relevant process.
AOB18 v Minister for Home Affairs
After I reserved in this proceeding, Judge Nicholls delivered judgment in AOB18 v Minister for Home Affairs [2018] FCCA 2748. His Honour there considered argument concerning what was said to be a decision of the Minister’s delegate by a letter dated 2 February 2018 to the applicant AOB18, equivalent to the Department’s letter dated 28 March 2018 to RACS on behalf of the Applicant in this proceeding advising of the outcome of the Section 46A MI Assessment in relation to that applicant – that the request was found not to meet the Guidelines as a case to be referred to the Minister (see above at [55]).
In AOB18, Judge Nicholls held that the letter dated 2 February 2018 from the Minister’s delegate to applicant AOB18 was not, and did not contain, a migration decision, and therefore s.476 of the Act was not engaged. The Minister had not taken any step in relation to the applicant to make a decision to consider whether to make a substantive decision about lifting the bar pursuant to s.46A in relation to applicant AOB18. The Court, accordingly, had no jurisdiction.
Whilst the Court was appraised of notifications to applicant AOB18 of the impending 1 October 2017 deadline, and the Court was informed of the dropping of the s.46A bar on 1 October 2017, it was only after the hearing that the Ministerial submission and the Revocation Decision were brought to the Court’s attention (see at [77]).
Whether or not the noting of paragraph 3 of the recommendations in the Ministerial submission was, or evidenced, a personal procedural decision of the Minister does not appear to have been specifically argued before Judge Nicholls. His Honour, however, was not persuaded how, on the evidence before him, that the Ministerial submission at [10]:
(a) was analogous to an assessment of Australia’s International Treaty Obligations (ITOA), and thus that the IRSR was, as with the ITOA (considered by the High Court in SZSSJ), within the exercise of the power under s.46A of the Act (see AOB18 at [78]); or
(b) was a personal procedural decision to consider the applicant’s case, or that of a class of persons to whom applicant AOB18 might belong (see AOB18 at [79]).
I note that in AOB18 at [52], his Honour states that “on the evidence, it cannot be said that the Minister otherwise made a relevant personal procedural decision at some time prior to 2 February 2018, or for that matter, after that date.” And at [53] his Honour observed “nor is it possible to reasonably infer from the IRSR document, or indeed any other evidence before the Court, that the Minister made such a personal procedural decision.”
At [62] Judge Nicholls states that revocation of the s.46A bar lift was a statement by the Minister that he was not going to consider making any substantive decision. I infer that his Honour considered that the Minister had either also declined to make any procedural decision, or any procedural decision was exhausted – the Minister thereafter was not considering whether to consider making a substantive decision. His Honour noted, for completeness, that there was no dispute that the adoption by the Minister of amended s.46A(2) guidelines (which I refer to as the Guidelines) did not constitute a decision by the Minister of the type explained in SZSSJ such as to say the Department’s subsequent conduct arose from a statutory context (at [63]).
Ground 2
The Applicant in this proceeding does not assert that the notification of the Section 46A MI Assessment was a migration decision (and applying the reasoning in AOB18, it is not). Rather, Ground 2 is focussed on events at earlier points in time – the IRSR process resulting in the second IRSR and in the third IRSR (noting, however, as I have said, and as Ms Watson pointed out, that the Section 46A MI Assessment is comprised in the third IRSR as further pages of that document – as indicated by a continuation of the same footer reference).
Mr Gormly accepts that the promulgation of the Guidelines does not attract procedural fairness, but says that the Ministerial submission at [10] is different, because it is peculiar to non-lodgers, and it is separate from, and in addition to, the process under the Guidelines.
Consideration
Ground 2 fails at a factual level. I agree with the conclusions reached and observations made by his Honour Judge Nicholls in AOB18. As a matter of comity, and unless I am persuaded his Honour is clearly wrong (and I am not so persuaded), I should follow his decision, so far as it deals with the same arguments made in this proceeding.
The Ministerial submission at [10] must be read in its context, together with the preceding and succeeding paragraphs of the submission, describing the next steps being taken by the Department regarding unauthorised maritime arrivals who are non-lodgers following the deadline, and bearing in mind the scheme of the Act, which generally provides that persons without visas (or valid applications that have not been finally determined) are not permitted to remain in Australia.
It does not follow, even if the steps described at [10] are separate from the process under the Guidelines, and the steps are peculiar to non‑lodgers, that the Minister has made a personal procedural decision or that the Department’s undertaking of steps as described in [10] are undertaken as a process of assessment after the Minister has made a procedural decision (see SZSSJ at [76]-[77]).
In any event, I am not persuaded that the steps described at [10], and the Department’s consideration of when to refer a case to the Minister, is entirely distinct from the Guidelines. The Guidelines include cases for referral for consideration which may involve the Minister being invited to consider whether to exercise a non-compellable power other than s.46A(2) (see above [62]-[66]). The request for consideration can be made by the Department, or by a UMA or other persons. The process at [10] may, but need not, result in a referral to the Minister for consideration under the Guidelines.
The noting of recommendation 3 by the Minister records the Minister’s acknowledgment that he has read the corresponding part of the Ministerial submission, and is thereby informed of the matters drawn to his attention as outlined in the paragraph. In contradistinction to paragraphs 1 and 2 of the recommendations, which each sought a decision from the Minister (to agree or not agree with the recommendation, and if agreeing, to undertake the steps specified), paragraph 3 does not seek, invite or require any decision from the Minister, or performance of any steps to be undertaken by him (the approval and signing of attachments).
The Ministerial submission at [5] sets the context. Paragraphs [9] through [15] then describe the next steps being taken by the Department after the 1 October deadline, in relation to cohorts of non-lodgers who, pursuant to [9] will be granted a Final Bridging E visa (allowing the holder time to finalise their arrangements to leave Australia). In [10] the steps described are those the Department will undertake in administering the Act in effecting the next steps towards departure from Australia of those persons, the steps being to identify any potential protection based barriers to removal of those persons. That process may facilitate the provision of advice to the Minister of cases for his consideration, but it is anterior any instance of the Minister considering whether to consider the exercise of his personal non‑compellable power under s.46A (or s.195A, or otherwise). Relevantly, the process is concurrent with the steps described at [9].
As was the case with the guidelines under consideration in Plaintiff S10, the Minister’s noting of paragraph 3 of the recommendation, and thus of the Departmental process described at [10], did not involve a decision of the Minister acting under s.46A(2) (or s.195A) to consider whether to consider the exercise of the power conferred by the section. The noting of the paragraph does not constitute or evidence the making of a decision by the Minister.
The process at [10] describes the identification of circumstances in which certain cases may be referred to the Minister for his consideration whether to exercise his s.46A powers, or possibly, s.195A. The process does no more than facilitate the provision of advice to the Minister in particular cases, and otherwise operates as a screening mechanism of cases which are not to be brought to the Minister’s attention (as described in Plaintiff S10 per French CJ and Kiefel J at [46]). The Departmental processes are anterior to the exercise of statutory powers but do not constitute or evidence their exercise. The work involved by officers, administering the process described at [10] of the Ministerial submission, comprised the review of information and categorisation of certain non‑lodgers’ cases. It may be regarded as an executive function incidental to the administration of the Act, as was described of the conduct of officers under the guidelines in Plaintiff S10 at [51].
There is nothing otherwise before the Court to suggest that the Minister has taken any step to make any decision to consider whether to make a substantive decision about the Applicant in the present case.
The ministerial submission makes clear that the Minister had not embarked on the first step decision in relation to any, or all ‘non‑lodgers’: c.f. SZSSJ or Plaintiff M61. It is only after the Department has conducted its individual assessment of an IMA’s entry interview, records and country information, and only if it determines that non‑refoulement issues are raised, that the Department would then prepare a submission to place before the Minister. It is at that point that the Minister may choose to make a procedural decision to consider whether to make a substantive decision for status resolution. Until that moment, the Minister has not taken any step preparatory to making any such decision.
In AOA16 v Minister for Immigration [2017] FCA 697, at [11] Pagone J, after discussing the above authorities, held that the Minster’s statutory power (there under s.48B) had not been engaged where the Department had not referred a case to the Minister.
I consider that the process described at [10] is analogous to the guidelines considered by the Court in S10/2011, and the IRSRs undertaken pursuant to that [10] process to be procedures undertaken anterior to any consideration by the Minister whether to consider the exercise of his statutory powers. As in AOB16, the Department had decided that the Applicant’s case was a case not to be referred.
There is no migration decision. This Court does not have jurisdiction. Ground 2 fails.
For completeness, I consider that each of the second IRSR and the third IRSR did not raise any case which was, under [10], able to be the subject of preparation of a submission to be provided to the Minister for his consideration. No case being referred to the Minister, no statutory power was engaged. The IRSR process was not conditioned by any requirement to afford procedural fairness. I note further that the process proceeded concurrently with the process for removal under [9]. The Applicant’s SHEV application was treated as a request for Ministerial intervention, and consideration of that request was finalised and the Applicant informed after the third IRSR was completed (see [54] and [55] above). On the evidence before me, the Applicant’s detention was not, on the timeline of events, been extended whilst the second and third IRSRs were being undertaken.
It follows that the application should be dismissed, with costs. As I have foreshadowed in [12]-[14] above, the only orders I will make are to grant leave to the Applicant to file and serve an amended application seeking to extend time and that the parties bring in full short minutes of orders reflecting these reasons.
I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 30 April 2019
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