CLM18 v Minister for Home Affairs

This case concerned an application for judicial review brought by the applicant, CLM18, against the Minister for Home Affairs. The dispute arose from the Minister's decision to revoke a previous decision that had lifted a bar under section 46A of the Migration Act 1958 (Cth), which had allowed the applicant to apply for a Temporary Protection Visa or a Safe Haven Enterprise Visa. The applicant contended that the revocation decision was unlawful. The matter was heard in the Federal Court of Australia before Judge Baird.

The primary legal issue before the Court was whether the exercise of the Minister's power to revoke the lifting of the section 46A bar was conditioned by an implied requirement of procedural fairness. If so, the Court also had to determine whether the procedures afforded to the applicant in this instance were sufficient to meet that requirement. The applicant argued that the presumption of procedural fairness, which generally applies to the exercise of statutory powers that affect an individual's interests, was not displaced in this case, unlike in certain "dispensing provisions" previously considered by the High Court.

The Court considered the High Court's explanation in *SZSSJ* that a statute conferring a power apt to affect an individual's interest is presumed to confer that power on the condition that it is exercised with procedural fairness, unless this presumption is clearly displaced by the statutory scheme. The Court noted that the lifting of the section 46A bar created an interest or expectation in the applicant to apply for a visa. The applicant argued that the revocation power under section 46A(2C) did not resemble the "dispensing provisions" discussed in *Plaintiff S10*, which were designed to relax visa system requirements. The Court also examined the Minister's actions in revoking the bar, which involved personal consideration of a ministerial submission and specific directions regarding medical testing. The Court noted that the applicant challenged the second and third Informed Referral of Status Resolution (IRSR) assessments, which concluded that Australia would not breach its non-refoulement obligations if the applicant were returned to Sri Lanka, and that the applicant's claims were "manifestly unfounded."

The Court found that the Minister's submission and the subsequent actions taken demonstrated that the Minister personally considered the matter. The Court also noted that the applicant had not engaged with the Department regarding his claims, and the IRSR assessments, while not assessing protection claims directly, indicated that the applicant's claims were not supported by available country information and did not appear to have substance. The Court ultimately determined that the procedures followed were sufficient to afford procedural fairness to the applicant in the circumstances.