Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCAFC 213
•23 November 2021
FEDERAL COURT OF AUSTRALIA
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213
Appeal from: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791
DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022
File numbers: VID 399 of 2020
NSD 831 of 2020Judgment of: KENNY, BESANKO, GRIFFITHS, MORTIMER AND CHARLESWORTH JJ Date of judgment: 23 November 2021 Catchwords: MIGRATION – appeals from orders dismissing applications for judicial review – where the appellants each made applications for Ministerial intervention under the Migration Act 1958 (Cth) – where the Minister had issued Guidelines to officers prescribing the circumstances in which such requests are to be brought to his attention – where officers concluded the requests for intervention did not satisfy the criteria for referral in the Guidelines and so refused to refer the requests to the Minister – nature of the officers’ decisions – whether the officers’ decisions were judicially reviewable by the Federal Court of Australia – whether the decisions were judicially reviewable on the ground of legal unreasonableness – whether the decisions were affected by legal unreasonableness – appeals dismissed Legislation: Constitution ss 61, 64, 75, Ch III
Acts Interpretation Act 1901 (Cth) ss 19, 19A
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 8, 16
Federal Court of Australia Act 1976 (Cth) s 28
Judiciary Act 1903 (Cth) ss 39B, 78B
Migration Act 1958 (Cth) ss 4, 5, 13, 14, 31, 37, 48A, 48B, 116, 189, 195A, 198, 349, 351, 417, 474, 476, 476A, 499, 501J, 504
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth) Sch. 2, cl. 050.212
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457
Animals Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35
Argos Pty Ltd v Minister for the Environment and Sustainable Development [2014] HCA 50; 254 CLR 394
Attorney-General (Cth) v Ogawa [2020] FCAFC 180; 281 FCR 1
Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1
Australian Communist Party v Commonwealth (1951) 83 CLR 1
Aye v Minister for Immigration and Citizenship [2010] FCAFC 69; 187 FCR 449
Bank of New South Wales v The Commonwealth (1948) 76 CLR 1
BAQ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 369
Bedlington v Chong (1998) 87 FCR 75
Broadbridge v Stammers (1987) 16 FCR 296
Bunbury v Fuller [1853] 156 ER 47
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554
Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825
Davis v Commonwealth [1988] HCA 63; 166 CLR 79
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791
DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022
DUE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1187
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123
Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438
Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44
Kioa v West [1985] HCA 81; 159 CLR 550
Kruger v Commonwealth [1997] HCA 27; 190 CLR 1
Mason v Ryan (1884) 10 VLR (L) 335
Miller v Prime Minister [2016] UKSC 3; [2020] AC 373
Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274
Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590
O’Sullivan v Farrer (1989) 168 CLR 210
Osborn v Parole Board [2013] UKSC 61
Petrotimor v Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3; 126 FCR 354
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173
Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42
Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476
Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168
Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 28
R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Everett [1989] QB 811
R v Toohey; Ex parte Northern Land Council [1981] HCA 74; 151 CLR 170
R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
Raikua v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 370; 158 FCR 510
Re Ditfort; ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634
Re Judiciary Act 1903-1920, & Navigation Act 1912-1920 (1921) 29 CLR 257
Re Macks; Ex parte Saint (2000) 204 CLR 158
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; 204 CLR 82
Rooke’s Case (1597) 5 Co Rep 99b
Sharp v Wakefield [1891] AC 173
Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55
Thomas v Mowbray [2007] HCA 33; 233 CLR 307
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591
Western Australia v Commonwealth (1995) 183 CLR 373
Williams v Commonwealth [2012] HCA 23; 248 CLR 156
XA v Minister for Home Affairs (2019) 274 FCR 289
Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3; [2016] AC 1457
Brennan G, “The purpose and scope of judicial review” (1982) 2 Australian Bar Review 93
Deakin, “Channel of Communication with Imperial Government: Position of Consuls: Executive Power of Commonwealth”, in Brazil and Mitchell (eds), Opinions of Attorneys-General of the Commonwealth of Australia, Volume 1; 1901-14 (1981) 129
De Smith, Woolf and Jowell, Judicial Review and Administrative Action (Sweet & Maxwell, 5th ed, 1995) 377-399
M J Beazley, ‘Judicial Review and the Shifting Sands of Legal Unreasonableness’ (10th Annual Whitmore Lecture, Council of Australasian Tribunals, 12 October 2016)
Robert French, ‘Singapore Academy of Law Annual Lecture 2013 – The Rule of Law as a Many Coloured Dream Coat’ (2014) 26 Singapore Academy of Law Journal 1
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 365 Date of hearing: 26 May 2021 VID 399 of 2020 Counsel for the Appellant: Mr C Horan QC with Mr A Krohn (both pro bono) Counsel for the First Respondent: Dr S Donaghue QC (Solicitor-General of the Commonwealth) with Mr N Wood Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice. Counsel for the Third Respondent: The Third Respondent filed a submitting notice. NSD 831 of 2020 Counsel for the Appellant: Mr B Zipser Solicitor for the Appellant: Rasan T Selliah & Associates Counsel for the First Respondent: Dr S Donaghue QC (Solicitor-General of the Commonwealth) with Mr N Wood Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice. ORDERS
VID 399 of 2020 BETWEEN: MARTIN JOHN DAVIS
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
SECRETARY, DEPARTMENT OF HOME AFFAIRS
Second Respondent
KAREN DIX – POSITION NUMBER 60008218 IN HER CAPACITY AS ASSISTANT DIRECTOR, MINISTERIAL INTERVENTION, DEPARTMENT OF HOME AFFAIRS
Third Respondent
ORDER MADE BY:
KENNY, BESANKO, GRIFFITHS, MORTIMER AND CHARLESWORTH JJ
DATE OF ORDER:
23 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.Unless a party notifies the Court in writing by 4:00pm on 30 November 2021 indicating opposition to this order, the appellant is to pay the respondents’ costs of the appeal, such costs to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 831 of 2020 BETWEEN: DCM20
Appellant
AND: SECRETARY, DEPARTMENT OF HOME AFFAIRS
First Respondent
ASSISTANT DIRECTOR, MINISTERIAL INTERVENTION, DEPARTMENT OF HOME AFFAIRS
Second Respondent
ORDER MADE BY:
KENNY, BESANKO, GRIFFITHS, MORTIMER AND CHARLESWORTH JJ
DATE OF ORDER:
23 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.Unless a party notifies the Court in writing by 4:00pm on 30 November 2021 indicating opposition to this order, the appellant is to pay the respondents’ costs of the appeal, such costs to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KENNY J:
The facts and circumstances that led the appellants in these two cases to apply for judicial review in this Court are elegantly set out in the reasons of Charlesworth J.
These cases illustrate how an exercise of legislative power may give rise to intersecting exercises of executive power, all of which are subject to the Constitution and the general law. There is one essential question: can this Court on judicial review determine whether the non-statutorily based administrative actions taken by the Departmental officers in these two cases are unlawful because they are legally unreasonable? This was an initial question for each primary judge in both cases.
As explained below, it seems to me that the Court can decide this question on judicial review. The Minister’s challenge to Robertson J’s decision in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438, in which his Honour reached the same conclusion in similar circumstances, must fail. I agree, however, for the reasons stated by Griffiths J (and by Charlesworth J to the extent her Honour’s reasons are consistent with his) that neither appellant has established that the challenged action was in fact unreasonable in the legal sense. Accordingly, the appeals in both cases should be dismissed.
As will be seen from what follows, I have reached my conclusion concerning the availability of the unreasonableness ground substantially, though perhaps not entirely, for the reasons stated by Griffiths J. In this event, it seems to me appropriate to set out the substance of my own reasons briefly.
These cases primarily concern the application of s 351 of the Migration Act 1958 (Cth) (the Act), an expressed object of which “is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: s 4(1). Section 351 is one of a number of provisions in the Act conferring an extraordinary power of last resort: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [96], [99] (Gummow, Hayne, Crennan, Bell JJ); [111] (Heydon J). It permits the Minister to grant a non-citizen permission to enter or remain in Australia if the Minister thinks this is in the public interest after the non-citizen has exhausted all the other statutory processes for which the Act provides.
To understand the primary issue in these appeals properly, it is first necessary to understand the regulatory scheme established by the Act, and the place of s 351 in this scheme. Under the Act, whether a non-citizen is lawfully in Australia depends on whether the non-citizen holds an effective visa: ss 13, 14. An unlawful non-citizen, being a non-citizen without an effective visa, is liable to immigration detention and removal from Australia: ss 189, 198. The Act makes provision for visas of various kinds conferring permission to enter or remain in Australia, including bridging visas: ss 31, 37. These latter visas are classes of temporary visas, granted under Subdivision AF of Div 3, Pt 2 of the Act. The possibility of a bridging visa is contemplated by the Migration Regulations 1994 (Cth) (the Regulations) where a request has been made for an exercise of power under s 351 and upon satisfaction of other criteria.
The Act contains a range of provisions that afford an unsuccessful visa applicant an opportunity to apply to the Administrative Appeals Tribunal or another body for merits review with a view to obtaining a visa after one has been refused by an officer in the Minister’s Department. Where a visa applicant has failed on a review conducted by the Tribunal under Div 3, Pt 5 of the Act, the visa applicant may seek the grant of a visa from the Minister, who under s 351 of the Act may make a decision more favourable to the visa applicant in substitution for the Tribunal’s decision if the Minister thinks this is in the public interest. The power conferred by s 351(1) may only be exercised by the Minister personally (s 351(3)); and, if the Minister makes a decision in substitution for the Tribunal’s decision, the Minister must ensure that a statement to that effect, with reasons, is laid before the Parliament: s 351(4). The Minister is, however, under no duty to consider whether to exercise the power in s 351(1), whether requested to do so, “or in any other circumstances”: s 351(7).
I note in passing that ss 417 and 501J confer much the same power on the Minister where the Tribunal has made a decision against a visa applicant under provisions other than s 349 of the Act. Sections 48B and 195A, which have also been described as dispensing powers, have a similar structure and dispensing operation to ss 351, 417, and 501J of the Act: see Plaintiff S10/2011 at [27].
It must be borne in mind that since the Minister is under no duty to consider whether to exercise the power conferred on him by s 351(1), the Minister must first make a procedural decision about whether to consider making a substantive decision before making any substantive decision (that is, a decision about whether to substitute a decision more favourable to the visa applicant for that made by the Tribunal): see Plaintiff S10/2011 at [99(iv)] (Gummow, Hayne, Crennan and Bell JJ); [102] (Heydon J); also Minister for Immigration and Border Protection v SZSSJ[2016] HCA 29; 259 CLR 180 at [52]-[53]; Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [70].
The executive power of the Commonwealth, with which s 61 of the Constitution is concerned, is engaged in various ways to ensure that s 351 can be given consistent and practical effect. As already indicated, the Regulations, which were made by the Governor-General (s 504), provide for the grant of a bridging visa where a non-citizen makes a request to the Minister under s 351 for a more favourable decision than that made by the Tribunal and where the person has not previously made such a request: see Regulations, Sch 2, cl 050.212(6). Broadly speaking, for the grant of a bridging visa in this circumstance, the applicant must meet various requirements, one of which may include the requirements of cl 050.212(6). Clause 050.212(6) provides that:
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the subject of:
(i)a decision in relation to an application made in Australia for a visa, or
(ii)a decision to cancel a visa; and
(b) in relation to the decision mentioned in paragraph (a), the applicant:
(i)is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351 or 417 of the Act; and
(ii)has made a request to the Minister to substitute a more favourable decision under section 345, 351 or 417 of the Act; and
(c)the applicant has not previously sought, or been the subject of a request by another person for:
(i)the exercise of the Minister’s power under 345, 351 or 417 of the Act; or
(ii)a determination under section 48B of the Act
The grant of such a bridging visa would enable the recipient lawfully to remain in Australia in order that, once the request has been made for an exercise of the power in s 351, the recipient could enjoy the benefit of any favourable decision the Minister may ultimately make.
Bridging visas permitting a person in the position of each of the appellants to remain in Australia after a request has been made for an exercise of power under s 351 may also be granted under other provisions of the Regulations, including pending the outcome of legal proceedings referrable to the request. Indeed, although it appears that each appellant currently holds a bridging visa, neither holds a subclause 050.212(6) bridging visa. As explained below, however, whether the appellants have been granted a bridging visa under subclause 050.212(6) or some other provision of the Regulations pending the outcome of their requests or associated legal proceedings, does not affect the outcome of these appeals.
The executive power of the Commonwealth is also obviously engaged by s 351 itself since under this provision Parliament has conferred the power on the Minister to make a decision more favourable to the visa applicant in substitution for that of the Tribunal, in recognition that the Minister is part of the executive branch of government with responsibility for the Department of State responsible for the administration of the Act: Constitution, s 64; Administrative Arrangements Order, 30 September 2015, p 27 (noting that the Department of Home Affairs has been known by various names over the years).
In his capacity as the responsible Minister, the Minister has issued guidelines to officers of his Department concerning s 351 of the Act, which were applicable in each appellant’s case. I interpolate here that these guidelines replaced the earlier guidelines relating to s 351 and a number of other provisions, which were considered in Plaintiff S10/2011 and SZSSJ.Like the guidelines considered in those cases, the guidelines relevant here were included in a Centralised Departmental Instruction System, and were written in the first person as instructions from the Minister: cf. Plaintiff S10/2011 at [34]. They adopted a similar structure to the earlier guidelines, although their provisions differed in certain significant respects. I return to these differences below.
The guidelines did not have a basis in the Act and did not have the force of law. Rather, they were an exercise of the executive power of the Commonwealth, made in furtherance of the execution of the Act and, relevantly, s 351. In substance, their status was informed by the Minister’s constitutional responsibility for his Department and the statutory power conferred on him by s 351 itself. As to the work done by Departmental officers under the guidelines, to adopt the language of French CJ and Kiefel J in Plaintiff S10/2011 at [51], that work “may be regarded, for the purposes of s 61 of the Constitution, as an executive function incidental to the administration of the Act and thus within that aspect of the executive power which ‘extends to the execution and maintenance … of the laws of the Commonwealth’”.
As explained hereafter, the guidelines applicable to the making of the Departmental decisions at the centre of these appeals are relevant to the question of whether the decisions are amenable to judicial review on the ground of unreasonableness. The purpose for the guidelines, as stated by the Minister, was to:
•explain the circumstances in which I may wish to consider intervening in a case
•explain how a person may request that I consider intervening in their case
•explain when my Department should refer a case to me
•confirm that if a case does not meet these guidelines, I do not wish to consider intervening in that case.
The guidelines instructed the Departmental officers to whom they were addressed how they were to deal with requests for the Minister’s intervention under s 351 of the Act, including how to identify requests that the Minister “may wish to consider” and, the corollary, the requests that the Minister did not wish to consider at all.
After setting out what were referred to as “principles” for intervention, the Minister described the types of “[c]ases that should be brought to [his] attention” as being “[c]ases that have one or more unique or exceptional circumstances” such as those within categories the guidelines described. One such category was “strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit …”.
Also within the guidelines, the Minister instructed that:
Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing[.]
Types of disqualifying circumstances were subsequently identified, for example, where “the person has left Australia”.
Under the heading “How requests for Ministerial intervention will be progressed”, the Minister stated, in connection with a “first request”:
If the Department assesses that the case has unique or exceptional circumstances such as those described in section 4 of these guidelines, it will be brought to my attention in a submission. I may consider intervening if I think it is in the public interest to do so.
… If the Department assesses that the case does not have unique or exceptional circumstances such as those described in section 4 of these guidelines, and is not inappropriate for me to consider, it will be finalised by the Department without referral to me.
If I do not wish to intervene or consider intervening in the case, whether or not it has been referred to me, the Department will reply on my behalf to the person or their authorised representative that I do not wish to intervene or consider intervening in that case.
Regarding a “repeat request” (as defined), the guidelines instructed that, as a rule, the Minister did not wish to consider them, although such a request “may be referred” to the Minister in “limited circumstances”, where “the Department is satisfied [that] there has been a significant change in circumstances … [and] these new, substantive issues fall within the unique or exceptional circumstances”.
The guidelines concluded with the statement that:
A request for [the Minister] to consider intervening is not an application for a visa and unless making the request leads to the grant of a Bridging visa, the request has no effect on the department’s removal obligations.
The guidelines were not directed to the manner in which the Minister, personally, decided under s 351 whether to consider to make a substantive decision in any particular case; and, if so, what, if any, substantive decision should be made. Rather, the guidelines were directed to an anterior point in the process. The guidelines relevant to the present appeals operated to screen out any requests that Departmental officers assessed as being of the kind that the Minister had directed should not be referred to him for any form of consideration under s 351. Where Departmental officers assessed a request as being of this kind, the Department finalised the case without referring the request to the Minister. A request would only be referred to the Minister for at least preliminary consideration (as to whether the Minister would consider whether to make a decision to grant a visa) where the Departmental officers assessed the request as being of the kind that the Minister had instructed should be brought to his attention.
Departmental officers assessed the appellants’ requests as being ones that did not fall within a class that the Minister had directed should be referred to him and therefore took steps to finalise the appellants’ cases without reference to the Minister. As a consequence, with respect to the appellants’ requests, the Minister did nothing at all under s 351 of the Act, and no statutory power of any kind was engaged.
This means that the circumstances falling for consideration in these appeals are relevantly different from those in Plaintiff M61/2010E and SZSSJ, where the Minister had made a personal procedural decision to consider whether to exercise the relevant power: see Plaintiff S10/2011 at [45], [46]; SZSSJ at [33]. In those two cases, the subsequent Departmental processes were undertaken to assist the Minister’s consideration as to whether to make a substantive decision in favour of the relevant non-citizens: in consequence these processes had a statutory basis. Where, as here, the relevant Departmental processes were undertaken prior to the Minister making any personal decision at all under s 351, the Departmental processes can have no statutory basis: see SZSSJ at [54]. The assessments and decisions made by the relevant Departmental officers – to the effect that the appellants’ requests were not of a kind the Minister had instructed he wanted to consider and that the Department should therefore proceed to finalise their cases without referring them to the Minister – were part of these processes. As the Solicitor-General for the Commonwealth, Dr Stephen Donaghue QC, accepted, the relevant Departmental officers made these decisions not to refer the appellants’ requests in exercise of Commonwealth executive power.
In each appeal, the appellants contend, and the respondents deny, that the challenged decisions are amenable to judicial review by this Court on the unreasonableness ground. It is to this issue that I now turn. Before proceeding further I would interpolate that, for the reasons stated by Griffiths J in his reasons at [80], I agree that the fact that s 351(1) of the Act confers a discretion is sufficient to attract the principle in Li, and the terms of s 351(7) do not require the contrary conclusion.
As already stated, the personal power conferred on the Minister by s 351 may properly be characterised as an extraordinary power of last resort (being exercisable only after all other relevant statutory processes have been exhausted and there being no duty to consider exercising it in any particular case). It may be borne in mind, however, that what the Departmental officers did was in the ordinary course of the administration of an Act and that that Act regulated the rights of individuals (who because of their legal status as non-citizens had no right to be in Australia other than as conferred under the Act). Their assessments and consequent decisions were in many respects not out of the ordinary at all.
There are some fundamental propositions that bear on the amenability of judicial review. In exercising executive power, whatever its source, the Minister and his Departmental officers are subject to law. Section 75(v) of the Constitution ensures that the High Court is capable of restraining any officer of the Commonwealth from exceeding power and entrenches a minimum of judicial review: see Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 363 (Dixon J). This, it has been said, is a textual reinforcement for Dixon J’s statement in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 about the significance of the rule of law for the Constitution: Plaintiff S157 at [103]. By virtue of s 39B of the Judiciary Act 1903 (Cth), the terms of which follow s 75(v), this Court is placed in the same position as the High Court in this regard.
The substance of the proposition that s 75(v) ensures that an unlawful exercise of executive power by an officer of the Commonwealth is capable of limitation, whether its source is constitutional, statutory or non-statutory, has been accepted for many years: see, for example, R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, especially at 220-221 (Mason J); Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; 204 CLR 82 at [45] (Gaudron and Gummow JJ); Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 at [69] (McHugh, Gummow and Hayne JJ); and Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [126]-[129] (Gageler J). It has also been accepted for many years that the concomitant duty of the High Court or this Court in determining the lawfulness of executive action extends not only to action alleged to be beyond prerogative power but to action “alleged to be otherwise in disconformity with the law”: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35; Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274, referencing with approval Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 (“CCSU”) at 278 (Bowen CJ), 280 (Sheppard J) and 302-304 (Wilcox J); Aye v Minister for Immigration and Citizenship [2010] FCAFC 69; 187 FCR 449 at [98] (Lander J), [123] (McKerracher J); cf. Attorney-General (Cth) v Ogawa [2020] FCAFC 180; 281 FCR 1 at [73]. There was no dispute in these appeals about these general propositions.
What may be termed the width and depth of the judicial review that the Court can undertake depends on the nature and subject matter of the challenged exercise of executive power: see, for example, Toohey at 219-220 (Mason J); Re Ditfort; ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 369-370; Peko-Wallsend at 277; Aye at [98], [123]. This proposition was also not in dispute. Rather, the dispute in these appeals centred on an argument that the nature of the challenged decisions precluded review on the legal unreasonableness ground.
To evaluate this argument, it is useful to consider the nature of the ground itself. The common law respecting judicial review is built on the rule of reason, as Rooke’s Case (1597) 5 Co Rep 99b illustrates. At issue in that case was a decision of the Commissioners of Sewers to impose on one landowner alone the charges for repairs to a river bank from which the other riparian owners also benefitted. Coke LJ held, at 100, that the exercise of such a discretion “ought to be limited and bound with the rule of reason and law”, and that the Commissioners’ decision failed because it did not observe this principle. This tends to support the proposition that it should be accepted that in principle the ground of legal unreasonableness may be relied on in challenging a decision made in exercise of executive power, irrespective of the source of that power.
The principle that judicial review is founded on reason has continued to inform the common law since Rooke’s Case. Nearly 300 years later, in Sharp v Wakefield [1891] AC 173 at 179, Lord Halsbury LC referred to Rooke’s Case in connection with a decision to refuse a licence under the Intoxicating Liquor Licensing Acts when he said:
An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and “discretion” means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke’s Case [5 Rep. 100, a]; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular.
Although their primary focus was the lawfulness of a statutory exercise of discretion, the reasons of French CJ and of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 acknowledge more broadly that reason or rationality has been and remains a fundamental organising touchstone for assessing the lawfulness of decisions of the executive branch of government at common law in Australia: see Li at [24]-[26] (French CJ), [65] (Hayne, Kiefel, and Bell JJ); also Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [88]-[89]. This has led the High Court to hold that reasonableness is an implied condition of an exercise of statutory discretionary power. It is tolerably clear, however, that this is not the only manifestation of reason as a fundamental common law principle, particularly in the context of judicial review.
This last proposition is, so it seems to me, confirmed by the reasoning of courts in the United Kingdom respecting the amenability of administrative decisions to judicial review. As the Full Court of this Court noted in Peko-Wallsend, CCSU accepted that the lawfulness of an exercise of non-statutory executive power can be examined in common law judicial review proceedings on the unreasonableness ground: CCSU at 410-411 (Lord Diplock), 417 (Lord Roskill); 423-4 (Lord Brightman). This was in part because a challenge for unreasonableness was a discrete ground, separate from procedural fairness which had a different legal history. (Concerning the history of these two grounds, see further M J Beazley, ‘Judicial Review and the Shifting Sands of Legal Unreasonableness’ (10th Annual Whitmore Lecture, Council of Australasian Tribunals, 12 October 2016); De Smith, Woolf and Jowell, Judicial Review and Administrative Action (Sweet & Maxwell, 5th ed, 1995) 377-399; Robert French, ‘Singapore Academy of Law Annual Lecture 2013 – The Rule of Law as a Many Coloured Dream Coat’ (2014) 26 Singapore Academy of Law Journal 1 at 13; Osborn v Parole Board [2013] UKSC 61 at [69]-[70].)
Since CCSU, courts in the United Kingdom have continued to undertake judicial review of non-statutorily-based administrative decisions on what have been called the “traditional grounds”, an expression which includes the ground of unreasonableness or irrationality, in cases where the challenged decision affects the rights or interests of an individual: see, for example, Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3; [2016] AC 1457 at [24]-[26] (Lord Carnwath, with Lord Neuberger, Lord Mance, Lord Wilson and Lord Sumption agreeing) and R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Everett [1989] QB 811 at 820. That the courts in the United Kingdom also undertake judicial review on the non-traditional ground of proportionality review, which is not part of Australian public administrative law, and that, those courts apply a doctrine of legitimate expectation that has been rejected in Australia has little, if any, bearing on the amenability of non-statutory decisions to judicial review on the ground of unreasonableness.
Similarly, differences in constitutional understandings of executive power in the United Kingdom and Australia (as outlined in Williams v Commonwealth [2012] HCA 23; 248 CLR 156 (e.g., at [25], [150]-[159], [488]) and illustrated in Miller v Prime Minister [2016] UKSC 3; [2020] AC 373) are not relevant in these appeals, given the nature of the executive power with which they are concerned: for example, these appeals do not involve an exercise of an executive capacity also enjoyed by private persons, as to which the availability of judicial review in the two jurisdictions may perhaps differ.
For all these reasons, subject to general constitutional and common law constraints (some of which are mentioned below) and any applicable statutory limitations, there should be no continuing doubt that an exercise of executive power (whatever its source) is amenable to judicial review on the unreasonableness ground. Such an exercise of power may be challenged on this ground either because the reasons given by the decision-maker disclose no “intelligible justification” in the Li sense or because the outcome is such that the circumstances disclose legal unreasonableness, as in Rooke’s Case referred to earlier. The long common law history of the unreasonableness ground confirms that it is separate and distinct from the procedural fairness ground. In the context of these appeals, the fact that the decision of the High Court in Plaintiff S10/2011 precludes reliance on the procedural fairness ground in relation to the decisions under challenge does not of itself prevent reliance on the unreasonableness ground.
As already noted, the width and depth of judicial review in any particular case may be reduced or enlarged by the nature and subject matter of the challenged exercise of executive power. The constraints on judicial review in Australia, even where loosely analogous to constraints in the United Kingdom, may be derived from the common law or have an Australian constitutional dimension. This is, so it seems to me, illustrated by Dr Donaghue’s submissions at the hearing of these appeals.
In these appeals the Commonwealth Solicitor-General submitted that there could be no judicial review of the challenged decisions on the unreasonableness ground because the decisions were not subject to “ascertainable, sufficiently precise legal limit”. Although not spelt out in argument, I understand this submission to be a reference to the fact that, by virtue of Ch III of the Constitution, this Court, like the High Court and other federal courts, can exercise only judicial power (and power incidental to judicial power). Of its nature an exercise of judicial power requires that there be judicially ascertainable standards capable of application by a court: see, for example, Australian Communist Party at 272 (Kitto J); also Thomas v Mowbray [2007] HCA 33; 233 CLR 307, particularly at [321]-[322] (Kirby J); [501]-[512] (Hayne J). It may be accepted that there will be occasions when non-statutory decisions made by the executive in exercise of power in s 61 of the Constitution are not susceptible to analysis according to judicially ascertainable standards capable of application by a court. This may be on account of the nature or subject matter of the exercise of power, or for some other reason. It is unnecessary to explore this issue further, because the exercise of power at issue in these appeals was not of this kind.
There were clearly ascertainable standards capable of application and according to which a court could determine whether the challenged decisions were legally unreasonable. As Rooke’s Case illustrates, common law courts have understood and applied the concept of legal unreasonableness for a very long time, and in Australia there is little continuing doubt about the nature of the judicial inquiry that the concept of legal unreasonableness involves: see [36] above. Whether the non-statutory decisions in question were unreasonable in the legal sense should be determined by reference to the context in which they were made: that is, by reference to the material before the decision-makers at the time of making each of the decisions; and by reference to the guidelines under and according to which the decisions were to be made. The latter requires consideration of the guidelines’ purpose, as well as attention to the principles and other matters that the guidelines instructed were to be observed or considered in making the assessments and decisions as directed by the Minister. As Robertson J said in Jabbour at [91], “[t]he guidelines provided a purpose and set out criteria or considerations” for the decisions that were to be made under them. The guidelines relevant to the challenged decisions ensured that there was no absence of clearly ascertainable standards capable of application by a court in determining whether the decisions were legally unreasonable.
On these appeals, the Commonwealth Solicitor-General also submitted that the challenged decisions were not amenable to judicial review because the decisions did not affect the appellants’ rights or interests.
Of course, judicial review proceedings may only be brought by a person with standing to do so (see, e.g., Animals Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35 at [120]-[121]; and Argos Pty Ltd v Minister for the Environment and Sustainable Development [2014] HCA 50; 254 CLR 394 at [43] (French CJ and Keane J), [66]-[68] (Hayne and Bell JJ), and [86] (Gageler J). The applicant for judicial review must therefore be adversely affected by the challenged decision or be otherwise a person aggrieved by it. Generally speaking, the question of standing is ‘subsumed within the constitutional requirement of a “matter”’: Plaintiff S10/2011 at [68]. There was, however, no suggestion that the standing of the appellants to bring judicial review proceedings to challenge the decisions in question was in contest. As Griffiths J observes in his reasons at [89], the Minister must therefore be taken to accept that the appellants are persons aggrieved in sense that the common law would permit them to seek a public law remedy with respect to the decisions. This was not therefore the issue to which the Solicitor-General’s submissions were directed when he contended that the challenged decisions did not affect the appellants’ rights or interests.
It may be that this submission was directed to a common law requirement of the kind mentioned in Youssef: see [34] above. Or, it may be that it was directed to a constitutional requirement deriving from Ch III of the Constitution. That is, as a general rule, judicial power involves “a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation”: see R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374. Perhaps the argument was intended to convey that there could be no judicial review of the challenged decisions, because the proceedings could not engage judicial power because they could not, relevantly, settle any right or obligation. Perhaps the submission was intended to refer generally to a common law requirement having a constitutional dimension in Australia. It is unnecessary to decide which of these possibilities was indicated by Dr Donaghue’s submission, because the argument, however understood, cannot succeed.
There is, it seems to me, little doubt that the decisions in question relevantly affected the appellants’ rights and interests. Both appellants had been refused visas by Departmental decision-makers. Both failed before the Tribunal on a review under Div 3, Pt 5 of the Act. In addressing their requests to the Minister, they each sought the favourable exercise of the extraordinary power conferred on the Minister by s 351 to obtain relief from the ordinarily applicable provisions of the Act. Broadly speaking, these provisions governed the appellants’ presence in Australia. As already stated, the power permitted the Minister to grant the appellants each a visa in substitution for the Tribunal’s decision if the Minister thought this was in the public interest. As we know, the appellants’ respective requests never reached the Minister. This was because, acting or purporting to act under the guidelines addressed to them, the relevant Departmental officers decided that the appellants’ requests were not of a type that the Minister had stated that he wished to consider; and in conformity with the guidelines, the appellants’ requests should not therefore be referred to the Minister. Accordingly the Minister was not informed of the appellants’ requests and no occasion arose for the Minister to make a decision of a kind contemplated by s 351. As I have already noted, and is more fully explained by Griffiths J at [93]-[95] of his reasons, the guidelines applicable to the appellants were significantly different in the latter respect to the guidelines at issue in Plaintiff S10/2011. In these circumstances, the challenged decisions evidently affected the appellants’ interests in seeking to engage the power conferred by s 351 on the Minister.
In another sense too, the challenged decisions affected the appellants’ rights. As already noted, the statutory scheme, which includes the Act and the Regulations, makes provision for bridging visas including where the visa applicant has made a request to the Minister to substitute a more favourable decision under s 351 of the Act: cf. the Regulations, Sch 2, subcl 050.212(6). The grant of a bridging visa prevents the recipient’s compulsory removal from Australia and detention prior to removal: the Act, ss 189, 198. If the appellants’ requests to the Minister to exercise his discretions under s 351 succeeded and they were each granted a further visa, their permission to remain at liberty in Australia continued. If their requests failed, then, they either left Australia voluntarily, or their removal from Australia was mandated by the Act and they were liable to detention until removed: ss 189, 198. The outcome was the same whether their request failed because the Minister declined to exercise any part of the power conferred by s 351 in the appellants’ favour; or because the Departmental officers determined that, in conformity with the guidelines, their requests should not be referred to the Minister. Their rights or interests were, therefore, necessarily affected by the challenged decisions.
Furthermore, for these purposes, it would not matter whether individuals making a request to the Minister to exercise the s 351 power in their favour held a bridging visa under cl 050.212(6) of Sch 2 of the Regulations or under some other provision dependent on another circumstance associated with the request, such as the existence of related legal proceedings. The fact remains that the grant of an effective bridging visa permits the visa holder to remain at liberty in Australia until such time as the request is finalised, which may entail the completion of the legal proceedings.
For these reasons, I would reject the submission that the challenged decisions were not amenable to judicial review because the decisions did not affect the appellants’ rights or interests, or because they were not subject to “ascertainable, sufficiently precise legal limit”. There was no other suggested reason why the challenged decisions were not amenable to judicial review on the unreasonableness ground.
There are two remaining matters. First, for the reasons stated by Charlesworth J, I would grant leave to Mr Davis to agitate on his appeal whether the announcement of the guidelines amounted to the Minister making an advance procedural decision to consider making a substantive decision whether to grant a visa in those cases in which the Departmental officers found that a request met the guidelines’ criteria for referral. This question was not raised before the primary judge. Indeed it was not raised in the appeal proceeding prior to the filing of written submissions for Mr Davis. Having granted leave, for the reasons stated by Charlesworth J, I would reject the submissions made by Mr Davis to the effect that an advance procedural decision had been made as argued. Also, for the reasons stated by Charlesworth J, I would refuse leave to Mr Davis to amend his notice of appeal to include proposed ground 2.
For the reasons stated, both appeals should be dismissed. It is unnecessary to consider the nature of the relief that might have been granted had there been a different conclusion.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny. Associate:
Dated: 23 November 2021
REASONS FOR JUDGMENT
BESANKO J:
I have had the considerable advantage of reading the reasons for judgment in draft of the other members of the Court. In my opinion, both appeals should be dismissed.
With respect to the important legal questions raised by the respondents by way of a Notice of contention in each appeal, I respectfully agree with the reasons of Griffiths J, subject to two matters.
The first matter is a point I wish to emphasise. In the discussion by Griffiths J of whether individual rights or interests are potentially affected, his Honour refers to the decisions of Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 (Jabbour) and Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 (Plaintiff S10/2011). In light of those authorities and the terms of s 351 of the Migration Act 1958 (Cth) (the Act), it seems to me that, to the extent it is necessary to examine the effect on individual rights or interests, it is appropriate to approach this case not as one of rights, but rather as one of interests (see the discussion of this concept in Plaintiff S10/2011 at [66]–[68] per Gummow, Hayne, Crennan and Bell JJ) or, as Robertson J put the matter in Jabbour (at [91]), potential rights.
The second matter is that I note the observations of Mortimer J about the analysis of Charlesworth J at [253]–[270] and Griffiths J’s agreement with that analysis at [87] concerning the availability of an order in the nature of mandamus and as a consequence, it would seem, an order in the nature of writ of certiorari (see Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [100]) and Mortimer J’s statement that she is not presently persuaded that there is a duty enforceable by an order in the nature of mandamus of the type identified by Charlesworth J. I share that reservation. Although the issue of the availability of orders in the nature of the prerogative writs was raised in the Notice of contention in each appeal, and was the subject of written submissions, little was said about that issue in oral submissions. For example, the duty that an order in the nature of mandamus would command the person to whom it was directed to perform was not fully and clearly articulated by either appellant in the course of oral submissions. That was in circumstances in which, in his Further Amended Originating application before the primary judge, Mr Davis sought a writ of mandamus to require the Secretary of the Department of Home Affairs (the Secretary) to consider and to determine according to law the applicant’s request for Ministerial intervention, and in his Amended Notice of appeal, Mr Davis sought a writ of mandamus or an order in the nature thereof requiring the Secretary to refer the appellant’s request for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to exercise his power under s 351 of the Act to the Minister or, in the alternative, a writ of mandamus to require the Secretary to refer the request to the Minister or, in the further alternative, a writ of mandamus to require the Secretary to deal with the request according to law. In his Further Amended Originating application before the primary judge, DCM20 sought a writ of mandamus directed to the Assistant Director, Ministerial Intervention, Department of Home Affairs and the case officer requiring them to determine the applicant’s request according to law. By the time of his written response and reply in his appeal, DCM20 appears to have conceded the unavailability of prerogative writs or orders in the nature thereof and he states that the issue is the availability of the remedy of a declaration.
In any event, having regard to the terms of s 351 of the Act and, in particular subsection (7), and the holding that the screening out process in the 2016 Guidelines is lawful, I am not persuaded that, even if the appeals were otherwise successful, there is a proper basis to issue a writ of mandamus or make an order in the nature thereof.
With respect to Mr Davis’ appeal, I agree with the reasons of Griffiths J for rejecting Ground 1 of the appeal and, like his Honour, I agree with the reasons of Charlesworth J with respect to the disposition of proposed Ground 2 of Mr Davis’ appeal. As to the new argument raised by Mr Davis in his appeal, I would grant leave to raise the argument, but reject it on the merits for the reasons given by Charlesworth J.
With respect to DCM20’s appeal, I agree with the reasons of Charlesworth J for rejecting the appeal.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. Associate:
Dated: 23 November 2021
REASONS FOR JUDGMENT
GRIFFITHS J
I have had the considerable benefit of reading Charlesworth J’s draft reasons for judgment. I gratefully adopt her Honour’s summary of the background facts and identification of many of the relevant legislative provisions. I respectfully agree with her Honour’s proposed orders that both proceedings should be dismissed. I prefer, however, to express my own reasons in relation to some of the relevant legal principles and why, in particular, I reject the first respondent’s challenge to the correctness of Robertson J’s decision in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438. I would also like to provide some additional reasons for agreeing with Charlesworth J’s conclusion that ground 1 of Mr Davis’ appeal should be rejected.
Relevant legal principles
A central issue is whether Robertson J’s decision in Jabbour regarding the availability of judicial review for unreasonableness is wrong. The issue is squarely raised by the first respondent’s notices of contention. The Court was urged by the first respondent in both appeals to determine that issue irrespective of the outcome of the appeals having regard to the different views and approaches taken in several previous first instance decisions concerning the correctness of Jabbour (see Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791; CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825; DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022; DUE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1187).
Jabbour raised similar issues to those in these appeals and, in particular, whether the ground of legal unreasonableness applied to a decision of a Departmental officer not to refer an intervention request to the Minister for consideration under s 351 of the Migration Act 1958 (Cth) (the Act), based on the same Guidelines as those which were applied in these appeals (i.e. Guidelines which were signed on 11 March 2016 and reissued on 29 March 2016 which I shall refer to as the 2016 Guidelines). It is important to note at the outset that these are not the guidelines which were the subject of analysis in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636, upon which the first respondent places heavy reliance in these proceedings. I shall refer to the guidelines in Plaintiff S10 as the 2009 Guidelines. The relevant differences in those guidelines are highlighted in my summary of them at [94]-[95] below.
(a) Jabbour summarised
In Jabbour, a request was made for Ministerial intervention under s 351 of the Act. That application was made following a refusal to grant the first applicant a subclass 457 visa, a decision which was affirmed on appeal by the former Migration Review Tribunal. This request for intervention was declined by the Assistant Minister for Immigration and Border Protection on 4 October 2017.
On 7 March 2018, a further request was made for Ministerial intervention under s 351. On 23 March 2018, a Departmental officer determined not to refer that request to the Minister. The basis for this decision was the officer’s application of the 2016 Guidelines, which required there to be a significant change in circumstances since the previous request which change raised new, substantive issues that were not provided previously or which would now present unique or exceptional circumstances. It is this decision which was the subject of the application for judicial review in Jabbour, on the basis that the decision was legally unreasonable. A threshold issue arose as to whether such a decision, which itself was non-statutory and was made with reference to the non-statutory 2016 Guidelines, was amenable to judicial review on that ground. Justice Robertson held that it was but ultimately concluded that legal unreasonableness had not been established.
The key features of Robertson J’s legal analysis in Jabbour may be summarised as follows:
(a)Although the heads of review of denial of procedural fairness and legal unreasonableness overlap to some extent, the principles are distinct in their history, principles and terms.
(b)Accordingly, the fact that the High Court held in Plaintiff S10 that procedural fairness principles had been displaced in respect of the operation of non-statutory guidelines, did not necessarily mean that, as a matter of statutory construction, review for unreasonableness has also been displaced.
(c)Previous authorities (including R v Toohey; Ex parte Northern Land Council [1981] HCA 74; 151 CLR 170; Re Refugee Review Tribunal; Ex parte Aala[2000] HCA 57; 204 CLR 82 and Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44) had established that the exercise of some non-statutory executive powers under s 61 of the Constitution may be amenable to judicial review, depending upon the nature and subject matter of the power, as opposed to its source. That is not to say, however, that all Commonwealth public administration is subject to judicial review, including on the ground of legal unreasonableness.
(d)A departure from non-statutory Ministerial guidelines may give rise to judicial review for error of law where, for example, a decision-maker who is not bound to apply the policy nevertheless purports to apply it or, alternatively, misconstrues or misunderstands the policy, such that what is applied is not the policy but something else (citing Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208 per French and Drummond JJ).
(e)Similarly, the condition of reasonableness in the exercise of some non-statutory powers is such that judicial review may be available on either of the two limbs identified in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47] per Allsop CJ, Robertson and Mortimer JJ, i.e. reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the administrative action and also by reference to the result or outcome of that process.
(f)The common law provides the conceptual underpinning for the Court’s role in judicial review of administrative action involving non-statutory powers.
(g)Although an impugned administrative decision which lacks a statutory foundation does not prevent judicial review in an appropriate case, in the absence of a statute providing a legal framework for the review process, it is appropriate to adopt as a framework guidelines which are intended to be applied by decision-makers. Such guidelines or instructions are intended to set out criteria or considerations which will be taken into account in making decisions which potentially affect an applicant’s interests and rights.
The essence of the reasoning in Jabbour is set out at [91], [92] and [102] (without alteration):
91In my opinion, at the level of principle the non-statutory administrative action on the part of the second respondent in this case is amenable to judicial review for legal unreasonableness. Relevantly, the nature of that administrative action is informed by the guidelines. Although those guidelines take the form of instructions to officers of the Minister’s Department, that is not their only character. The instructions are promulgated and, amongst other things, set out how to make a request and how requests for Ministerial intervention will be progressed. The interests and potential rights of the applicants were affected by the administrative action. The guidelines provided a purpose and set out criteria or considerations.
92The nature of the administrative action, the relevant exercise of power, does not take it out of the mainstream of government actions either by reference to subject matter or as involving a matter of political judgment. These characteristics of the present non-statutory administrative action do not distinguish it from a statutory discretion. Although involving the exercise of a non-statutory power, the circumstances are “more closely related to justice to the individual than with political, social and economic concerns”: South Australia v O’Shea [1987] HCA 39; (1987) 163 CLR 378 at 387 per Mason CJ. That the basis of review may be narrower than for government action under a statute does not have the consequence that judicial review is unavailable. That the action in the present case is not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth), because there is no decision under an enactment, does not mean that judicial review under s 39B of the Judiciary Act is not available: s 10 of the Administrative Decisions (Judicial Review) Act provides that the rights conferred by ss 5, 6 and 7 are in addition to, and not in derogation of, any other rights that the person has to seek a review by, relevantly, a court. Further, I have set out at [81] above why I consider the displacement of procedural fairness, as a matter of contrary statutory intention, does not mean that review for legal unreasonableness is similarly displaced.
…
102In my opinion, the content of any condition of reasonableness in the exercise of non-statutory power is such that judicial review is available at least on the alternative analysis in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47], that is, reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the administrative action. Because it focusses on the reasoning process of the decision-maker, this form of analysis does not depend upon the identification of statutory scope and purpose. Further, by reference to the guidelines, which as I have explained above bear on the nature of the relevant power, I accept that legal unreasonableness could be made out by reference to result: that is, the proposition that no reasonable decision-maker could have failed to refer the application to the Minister by reference to the description in the guidelines of unique or exceptional circumstances, if made out, would sound in legal error. In this analysis the guidelines and characteristics of the power identified at [91] above perform, in the non-statutory context, a function comparable to the scope and purpose of a statutory power.
(b) Was Jabbour correctly decided?
It is important to note at the outset that the Solicitor-General (who appeared with Mr Nick Wood for the respondents) explicitly acknowledged that the first respondent did not make any “general claim to the effect that it is impossible to review any exercises of non-statutory power on any grounds”. With reference to Toohey, the Solicitor-General identified the relevant question as “what kinds of powers and on what grounds”. In answering these questions, the Solicitor-General submitted that attention had to be given to the subject matter of the impugned decision and its effects on individual rights of interests, as well as asking whether there is an “ascertainable, sufficiently precise legal limit”.
It is also important to note that the Solicitor-General accepted that the assessments carried out by Departmental officers under the 2016 Guidelines is part of the executive power of the Commonwealth under s 61 of the Constitution.
The first respondent advanced five arguments in support of his contention that Jabbour is wrong. It is convenient to address each of them in turn and explain why none should be accepted.
(i) Reiteration of the submissions advanced in Jabbour
The first respondent maintained the submissions which were advanced in Jabbour and summarised by Robertson J at [50]-[55] and [63]-[73]. I respectfully agree with his Honour’s reasons for rejecting those submissions, which are substantially reflected in my summary of the key features of his Honour’s analysis, as well as in my reasons which follow.
(ii) The distinction between the procedural and substantive steps in Ministerial non-intervention powers
The first respondent contended that even if it was the case that the Act does not displace legal unreasonableness as a constraint on the exercise of power under s 351, it does not follow that the anterior “decision” or conduct of Departmental officers in not referring a request for intervention to the Minister can be challenged as being “legally unreasonable”. In support of this contention, the first respondent cited Minister for Immigration and Border Protection v SZSSJ[2016] HCA 29; 259 CLR 180 and the Court’s unanimous approval there (at [53]) of the distinction between the procedural and substantive steps in ministerial intervention powers such ss 195A and 417 (which have a similar structure to that in s 351) as identified in Plaintiff S10 and Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319.
Of course, the distinction drawn in those High Court decisions must be accepted and applied in an appropriate case. It is important, however, not to lose sight of the context in which this distinction was drawn. The context in both Plaintiff S10 and Plaintiff M61 was a complaint of procedural unfairness. Neither case directly addresses the question which arises in these appeals, namely whether legal unreasonableness is available in respect of a Departmental officer’s understanding and application of the 2016 Guidelines. Merely because neither the procedural nor substantive limb of the power under s 351 is engaged does not necessarily preclude the availability of the ground of legal unreasonableness. For reasons which will be developed below, there are some significant differences between those two grounds of judicial review, even though, as Robertson J pointed out in Jabbour, it may be accepted that they overlap to some extent.
In view of the heavy reliance placed upon them by the first respondent, it is appropriate to say something more about both Plaintiff S10 and SZSSJ.
Plaintiff S10
Plaintiff S10 involved four requests by four different plaintiffs for Ministerial intervention which raised one or more of the powers in ss 48B, 195A, 351 and/or 417 of the Act. As French CJ and Kiefel J pointed out at [5], the plaintiffs’ histories had some common elements. In all four cases the plaintiffs had failed in administrative review challenges in either the Migration Review Tribunal or the Refugee Review Tribunal. Each of the four plaintiffs had submitted at least one request for Ministerial intervention under one or more of the relevant provisions and each plaintiff had had his or her case considered personally by the Minister on at least one occasion under either s 351 (one plaintiff) or s 417 (in the case of the other three plaintiffs). Other requests by three of the plaintiffs were refused by Departmental officers applying the 2009 Guidelines and consequently those requests were not forwarded to the Minister (presumably, however, in accordance with s 16 of the 2009 Guidelines the Minister was notified by the Departmental officers that the requests had been refused: see [94] below). In the case of the fourth plaintiff, the request was refused by the Minister personally. The central issue was whether the statutory provisions conferring dispensing powers on the Minister required procedural fairness in the case of each plaintiff.
As Charlesworth J has pointed out, different approaches were taken by various members of the Court in Plaintiff S10 in characterising the assessment process under the 2009 Guidelines. I respectfully agree with her Honour’s analysis and observations, including her Honour’s conclusion in the present proceedings that the Minister has not made any advanced procedural decision to consider requests referred under the 2016 Guidelines (see at [284]). The evidence in both appeals indicates that no statutory process of consideration had begun. Importantly, however, both requests for Ministerial intervention were “screened out” by the Departmental officers concerned and, equally significantly, there is no evidence that the Minister was informed of that outcome. In contrast with the previous guidelines, the 2016 Guidelines contained no requirement equivalent to s 16 of the 2009 Guidelines that the Minister be notified if a request was refused by a Departmental officer (see [95] below).
It is desirable to set out [30] and [31] of the joint judgment of French CJ and Kiefel J (footnotes omitted):
30The 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. 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. It has been described in this Court as “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.
31The dispensing provisions do not in terms provide for applications or requests for the exercise of a ministerial discretion. Nevertheless, they are drafted on the assumption, which recognises the practical reality, that requests will be made. They provide that the Minister has no duty to consider whether to exercise the power they confer, whether or not requested to do so. Other provisions of the Act operate upon the assumption that such requests will be made and that representations and communications will be made to the Minister, the Minister's staff or officers of the Department in relation to such requests. The Regulations provide for the grant of Subclass 050 (Bridging (General)) visas which permit a non-citizen to remain in, or travel to, enter and remain in Australia, during a specified period or until a specified event happens. Primary criteria for the grant of a bridging visa include the making of a request to the Minister to make a determination under s 48B of the Act and the making of a request under ss 351 or 417.
SZSSJ
SZSSJ raised the question whether an internal Departmental process known as “International Treaties Obligations Assessments” (ITOAs), which were conducted in accordance with procedures set out in the Department’s publicly available Procedures Advice Manual, needed to comply with procedural fairness requirements. The purpose of the ITOAs in the circumstances of SZSSJ was to assess the effect of a data breach on Australia’s international obligations with respect to affected applicants, all of whom had applied for protection visas and were held in immigration detention. The assessments were conducted in the context of the Minister having non-compellable powers under ss 195A and 417 so as to lift a statutory bar to the making of an application for a visa in the case of s 48B. It may be interpolated that the non-compellable power in s 351 did not arise but for present purposes I see no reason to distinguish that particular non-compellable Ministerial power of intervention from those considered in SZSSJ. For completeness, it should also be noted that no issue arose in SZSSJ regarding the application of either the 2009 Guidelines or the 2016 Guidelines.
In holding that the ITOA process had to comply with procedural fairness requirements in the particular circumstances in SZSSJ, the following matters were critical. First, there was an unchallenged “important factual finding” by the Full Court below that the Minister had personally decided to consider whether to exercise the powers conferred by ss 48B, 195A and 417 in respect of the visa applicants affected by the data breach (at [33]). In other words, the procedural limb in terms of the distinction between procedural and substantive decision-making had commenced.
The significance of this finding relates to the principles drawn from Plaintiff S10 and Plaintiff M61 concerning the construction and application of those provisions, in particular that each power involved two distinct decisions. They were described as a procedural decision, to consider whether to make a substantive decision and a separate substantive decision, namely whether to grant a visa or lift the bar.
Secondly, processes undertaken by the Department to assist the Minister’s consideration of the possible exercise of a non-compellable power take their character from what the Minister personally has or has not done. Where the Minister has made a personal procedural decision whether to make a subsequent substantive decision, internal processes by the Department to assist the Minister’s consideration of that matter necessarily has a statutory basis in relation to the Minister’s prior procedural decision. Accordingly, that internal Departmental process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention (at [54]). That is because, in the particular circumstances of SZSSJ, the effect of prolonging immigration detention necessarily affected the person’s legal rights and interests (see at [75]). That is not to say, however, that the legal rights and interests of other people who seek Ministerial intervention and are not in immigration detention are unaffected (see further below).
It is desirable to set out at [76] and [77] of SZSSJ (footnotes omitted):
76Plaintiff M61/2010E and Plaintiff S10/2011 show that the powers conferred by ss 48B, 195A and 417 of the Act have the potential to attract the presumption in two distinct ways. In the case of the Minister personally making a procedural decision to consider whether to make a substantive decision or of the Minister personally making a substantive decision to grant a visa or to lift the bar, the exercise of the power is apt to affect the interest of an applicant in the actual or potential relaxation of a legal prohibition on his or her continued presence in Australia. In the case of an officer of the Department engaging in a process of assessment after the Minister has made a procedural decision, the exercise of power is apt to affect the interest in liberty of an applicant whose immigration detention is prolonged by that process.
77What Plaintiff M61/2010E and Plaintiff S10/2011 critically hold is that, while the presumption is displaced by the scheme of the Act in its application to the personal exercise of power by the Minister, the presumption is not displaced in relation to the exercise of power by an officer of the Department. Procedural fairness is required as an implied condition of the exercise by the officer of statutory power to engage in the process of assessment where the exercise of that power is apt to prolong immigration detention.
Having found that the Full Court below was correct to hold that procedural fairness obligations were owed to the applicants, the High Court nevertheless allowed the appeal on the basis that those requirements had not been breached.
(iii) The significance of s 351(7)
The first respondent contended that, even if it be assumed that a condition of legal reasonableness applied to the making of the substantive decision under s 351, he disputed that reasonableness conditioned the possible making by the Minister of a procedural decision under s 351(1). The first respondent placed particular reliance on the express statement in s 351(7) that the Minister does not have a duty to consider whether to exercise the power in respect of any decision in any circumstances.
I do not accept that contention. Merely because the power under s 351 is not compellable does not mean that the obligation to act reasonably in the legal sense is displaced. The more important point is that, while the Minister does not have a duty to consider whether to exercise the power under s 351(1) in respect of any request, the Minister plainly has a statutory discretion in relation to the matter. That is sufficient to attract the general principle in Minister for Immigration and Citizenship v Li[2013] HCA 18; 249 CLR 332. To adopt Gageler J’s reasoning in Li at [92], a condition of reasonableness is presumed absent “an affirmative basis for its exclusion or modification”. It is open to the Parliament to displace the implied condition of reasonableness on the exercise of that discretion, but the terms of s 351(7) are insufficient to displace the statutory presumption. The object of that provision is to displace the general presumption that there is a duty to consider whether or not to exercise the discretionary power to intervene and grant a visa, as opposed to displacing a requirement to act reasonably in respect of both the preliminary procedural step and the subsequent substantive step.
To the extent that the first respondent contended that there was no scope for legal unreasonableness to apply other than in respect of a statutory power, it should be rejected. As Nettle and Gordon JJ stated in Minister for Immigration and Border Protection v SZVFW[2018] HCA 30; 264 CLR 541 at [88]-[89] (footnotes omitted, emphasis added):
88The standard of reasonableness is derived from the applicable statute but also from the general law.
89First, there is a legal presumption that a discretionary power, statutorily conferred, must be exercised reasonably in the legal sense of that word. That is, when something is to be done within the discretion of the decision‑maker, it is to be done according to the rule of reason and justice; it is to be done according to law.
To similar effect, see Li at [63]-[65] per Hayne, Kiefel and Bell JJ.
(iv) Are rights or interests potentially affected?
The first respondent contended that, contrary to Robertson J’s reasoning in Jabbour at [91], the conduct of a Departmental officer in not referring a request to the Minister anterior to the making of any procedural decision by the Minister does not affect any “right” or “interest” of the person who made the request. He submitted that the officer’s conduct in not referring a request does not form part of the Minister making any “procedural decision” of the kind described in Plaintiff S10 and SZSSJ. He further submitted that no such “procedural decision” had been made by the Minister in Jabbour or in the case of either Mr Davis or DCM20. The first respondent referred in particular to the observations of French CJ and Kiefel J in Plaintiff S10 at [3], that assessments by officers are not “themselves capable of affecting, defeating or prejudicing rights [or] interests”.
In my respectful view, the first respondent has overstated the significance of the issue of adverse effect on individual rights and interests where the appellants’ complaint is one of legal unreasonableness and not procedural unfairness. In particular, it is clear from cases such as Li that the implied condition that statutory powers or discretions will be exercised reasonably does not depend upon whether or not the particular discretion or power adversely affects individual rights or interests. That is to be contrasted with the position regarding procedural fairness, where the statutory implication that procedural fairness requirements apply only arises where the relevant power has the potential adversely to affect individual rights or interests (see, for example, Kioa v West [1985] HCA 81; 159 CLR 550 and Plaintiff S10 at [3] per French CJ and Kiefel J).
Moreover, and in any event, I respectfully agree with Robertson J’s finding in Jabbour at [91] that the interests and potential rights of people who make requests for Ministerial intervention are affected by the administrative action taken under the 2016 Guidelines. As his Honour found, those 2016 Guidelines provide a purpose and set out criteria or considerations. In contrast with the 2009 Guidelines in Plaintiff S10, the 2016 Guidelines contain no requirement for the Minister to be informed if the Departmental officer decides not to refer a request for Ministerial consideration (see [94] below). Accordingly, the Minister may not even be aware of the existence of the request and thus there will be no opportunity for the Minister to take a different view on the procedural component. Although there is no legal right as such, the individual’s interest in having the Minister consider the request and possibly grant the request is potentially stymied by the Departmental officer’s anterior decision. The following observations of Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10 are apposite:
69A non‑citizen who is in the position of the plaintiffs and seeks the engagement and favourable exercise of the dispensing powers under the federal statute with which these cases are concerned does so 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. This is sufficient to satisfy the principles just discussed.
70The defendants cannot succeed solely upon the ground that the failure to engage the exercise in their favour of the dispensing power, is not apt adversely to affect the interests of those seeking to engage the exercise of those powers.
Counsel submitted that the primary judge had erred in concluding that proof of any failure to consider the impact on Ms Giddins could not assist Mr Davis, because the reasons provided on the “repeat request” evidenced that the asserted impact on her had been assessed as not warranting referral.
Consideration
The submission that the Assistant Director did not have regard at all to the impact upon Ms Giddins when the request for intervention was first made should be accepted. The failure to consider that impact is made plain in the reasons given in response to the “repeat request”, which contained an unqualified statement that there was “no evidence that any Australian citizen, permanent resident, or Australian business, would suffer hardship” had previously been provided. Plainly, evidence of that kind had previously been provided. The Assistant Director was wrong to state otherwise.
Given the role of the Guidelines identified earlier in these reasons, Mr Davis was entitled to have his assertions concerning Ms Giddins assessed against their criteria on his initial request for intervention. When Mr Davis complained that the initial assessment was flawed because of that failure, his complaint ought not to have been characterised as a “repeat request”. It could not be so characterised because although the asserted impact on Ms Giddins had previously been raised, it had not previously been considered.
However, notwithstanding the erroneous characterisation of Mr Davis’s letter of 15 May 2019 as a “repeat request”, the Assistant Director in fact went on to substantially consider the asserted impact upon Ms Giddins by reference to the materials provided. The Assistant Director did not refuse to consider the issue on the basis that the information asserted in the complaint did not amount to a changed circumstance. Rather, the Assistant Director gave the issue active consideration under the Guidelines as though the issue had not previously been considered. The Assistant Director concluded that there was no evidence that there was no other person in the community able to provide support to Ms Giddins of the kind that she claimed to receive from Mr Davis. That substantive conclusion was open to the Assistant Director to make.
Whilst I am satisfied that it was disingenuous of the Assistant Director to treat the latter correspondence as a repeat request, it does not follow that the refusal to refer the request to the Minister was affected by legal unreasonableness. The central task of the Assistant Director was to assess the evidence in relation to Ms Giddins against the highly evaluative “compassionate circumstances” criteria. That task was ultimately performed as a matter of substance. The evaluation itself was not irrational, nor was it affected by legal unreasonableness in any other sense. The wrongful description of the 15 May 2019 letter as a “repeat request” did not make it so, and did not otherwise have a material effect on the outcome.
The primary judge was correct to conclude that the demonstration of error in treating that letter as a “repeat request” could not assist Mr Davis on the application for judicial review, for the reasons that his Honour gave.
It follows that the first ground of appeal is not established.
The proposed second ground of appeal
This proposed ground is to the effect that the Guidelines constitute an impermissible delegation by the Minister of his personal procedural power under s 351 of the Act, with the consequence that the Departmental officers could not make any lawful assessment of the request in accordance with the instructions contained in them. As explained earlier in these reasons, Mr Davis did not advance any such argument at first instance. He requires leave to raise the argument now.
The argument sought to be raised is not in accordance with authority. As Gummow, Hayne, Crennan and Bell JJ said in Plaintiff S10/2011 (at [91]), it was competent for the Minister to issue the Previous Guidelines. That same conclusion must apply to the Guidelines presently under consideration. The argument cannot be sustained in light of the text of the Guidelines extracted earlier in these reasons.
In addition, the argument appears to attribute to the Departmental officers a decision that would fall within the definition of a “purported migration decision” of a kind that only the High Court may review. It is unnecessary to express a concluded view on that jurisdictional question. Leave to introduce the argument for the first time on appeal should be refused on the basis that it has no merit.
It follows that this appeal must be dismissed.
THE DCM20 APPEAL
DCM20 is a citizen of Fiji of Indian ethnicity. She has resided in Australia continuously since arriving with her family in the early 1990’s. In 1997, the Refugee Review Tribunal affirmed a decision not to grant DCM20 a protection visa. DCM20 made a request for Ministerial intervention under s 417 of the Act. In June 1997, DCM20 was notified that the Minister had decided not to intervene.
On 27 August 2013 the MRT affirmed a decision of a delegate not to grant DCM20 a Resolution of Status (subclass 851) visa. DCM20 has made three unsuccessful requests for Ministerial intervention under s 351(1) of the Act with respect to that decision, the first by letter dated 29 August 2013, the second by letter dated 22 June 2016, and the third by letter dated 20 December 2019.
A Departmental submission in relation to the first request stated the following:
(a)The Minister may wish to consider granting a Permanent – Former Resident (Subclass 151) visa and that a temporary visa option had not been offered as, on the available information, it was considered unlikely that Ms [DCM] would meet the requirements for the grant of a further visa onshore;
(b)‘[b]oth Mr and Ms [DCM] claim to provide essential care for their elderly and frail Australian citizen parents’, as well as providing assistance for their sister’s children whose father had passed away (I note that the reference here to Mr [DCM] is a reference to the applicant’s brother who was also making a request for Ministerial Intervention under s 351(1) at this time on the basis of similar claims));
(c)Ms [DCM] ‘claims that she cares for her elderly and frail citizen parents … [who] are entirely dependent on her for all household chores and she frequently accompanies them to medical appointments. Ms [DCM] has advised that her mother has diabetes and walking difficulties (no evidence regarding her parents medical conditions or frailty has been provided)’; and
(d)Ms [DCM] was working part-time at an aged care centre 34 hours per week, but had not indicated who cared for her family members when she was working.
(original emphasis)
The Minister declined to exercise the power under s 351(1) on 17 March 2016.
The content of the second request (made by letter dated 22 June 2016), is summarised by the primary judge as follows (at [8(3)]):
… In the letter, the applicant stated, among other things, that ‘[a]s my parents are elderly aged 74 and 72 years, they can’t live without me and my brother who both have been asked to depart’, and her mother had medical problems, panic attacks and serious anxiety as a result of their impending departure. She also said that with her qualifications in aged and disability care, she had been providing her mother ‘all the medical support in terms of looking after her’ and that her ‘sick mother requires these support on an ongoing basis from me. My departure will create undue hardship to my sick mother’. She further submitted that her qualifications and facility in different language dialects placed her in a position to contribute to the community at large in the provision of aged care and disability services.
That request was not referred to the Minister following assessment under the Guidelines. It may be referred to as the 2016 request.
The third request for intervention was the subject of the proceedings before the primary judge. It will be referred to as the 2019 request.
By the 2019 request, DCM20 (by her migration agent) requested that the Minister exercise his power to substitute a more favourable decision so as to grant her a three month visitor visa that would enable her to then apply for a cares visa. The 2019 request was accompanied by statutory declarations from family members and medical documentation relating to DCM20’s parents.
Among other things the 2019 request stated that DCM20 was currently providing full-time care and support for her incapacitated mother, that her father was also of old age and suffering from a number of ailments and that DCM20 lived with her parents who depended upon her for their day to day care. The request asserted that there were unique and exceptional circumstances that did not exist at the time that the previous requests were made, namely:
… the Applicant’s personal characteristics which arise from her being a single female of Indian descent provides a sound basis for believing that there is a significant threat to her personal security, human rights and human dignity if she returns to Fiji. This is due to the high likelihood of sexual violation of single Indian females without male support in Fiji and the intense animosity towards the Indian minority from the native Fijian majority in the country.
The Applicant notes that when she was living in Fiji with her family prior to their arrival in Australia in 1993, her familial home was broken into by native Fijians who targeted them due to their Indian ethnicity. After breaking into their home, the group of native Fijians not only violently threatened her family to leave Fiji and return to their ancestral home India, but also threatened to take their money. After this incident, native Fijians have repeatedly attempted to sexually assault the Applicant in the past; while the Applicant’s family was around to protect her when they were still living in Fiji, they have since settled in Australian have become Australian citizens. …
If the applicant [returns] to Fiji as a single woman of Indian descent with no family or friends, no place of residence and no employment, she is more vulnerable than ever before to violent abuse, including sexual assault.
It is not in issue that the 2019 request was a repeat request for the purposes of the Guidelines.
On 10 January 2020 the Assistant Director signed a minute titled “Assessment of repeat request for intervention in accordance with the Minister’s guidelines on ministerial powers (sections 351, 417, 501J)” (the Minute). The effect of the Minute was that the 2019 request would not be referred to the Minister because it did not fulfil the requirements in the Guidelines for referral of a repeat request. The reasons for that assessment were expressed as follows:
Current Ministerial intervention request
In this current third repeat request, Ms [DCM] reiterates claims which were previously considered, although she provides evidence of qualifications which were not provided previously. She now claims to care for her parents full time and is no longer working but provides medical documentation which does not indicate any significant deterioration in her parents’ health. There is … also no evidence of a significant change in the circumstances of her sister, niece and nephew who all reside together as a family unit. The previous assessment of Australia’s international obligations remains current despite the elapse of 3 years.
As Australian citizens, her parents, sister, brother, niece and nephew are entitled to services available to all Australian citizens. Her parents reside with her sister and children, and the children remain in the care of their mother. There is no evidence that Ms [DCM]’s return to Fiji would breach any international obligations.
…
While Ms [DCM] claims to fear harm on return to Fiji, these claims do not fall within the ambit of the section 351 or section 417 guidelines. She has had earlier protection claims finally determined and she was found to not be owed Australia’s protection obligations. It remains open to her to make a request under section 48B of the Act where any claims related to Australia’s non-refoulement obligations can be assessed.
…
This repeat request will not be referred to the Minister because the department is satisfied there has not been a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request and which would now present unique or exceptional circumstances.
As the primary judge noted, the reference in the reasons to s 417 of the Act was inapt, as no request for intervention under that section had been made.
Grounds for judicial review
At first instance, each of the two grounds for judicial review alleged that the decision not to refer the 2019 request to the Minister was legally unreasonable.
The primary judge summarised the principles to apply in respect of both grounds in orthodox terms. The primary judge continued (at [24]):
It follows from these principles that the fact that another decision-maker might disagree, even strongly, with the Assistant Director’s ‘decision’ is irrelevant to the question of whether it is legally unreasonable: see above at [19]; see also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [74] (Griffiths J), [92] (Wigney J). Nor does the fact that Ms [DCM], her parents and her family will no doubt suffer hardship if she is required to return to Fiji provide a basis on which the Court may interfere. As Gageler J also cautioned in Minister of Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [52] while the test may be expressed in various ways, ‘[e]xpression of the standard of legal reasonableness in terms of the minimum to be expected of any ‘reasonable repository of the power’ in the circumstances of the impugned decision or action has the benefit of emphasising both the ‘extremely confined’ scope and context-specific operation of the limitation it imposes’ (emphasis added; citations omitted).
(original emphasis)
The primary judge identified (at [22] – [23]) that the decision-maker was under no obligation to provide a written statement of reasons setting out the findings on material facts and reasons for the decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Gleeson CJ (at [5]), Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554, the Court (at [50]). Her Honour said that the approach to reasons that are provided in the absence of an obligation to do so was that explained in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 (at [25]), namely:
It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, ‘jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power’; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate’s letter is ‘not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.
(citations omitted, original emphasis)
The first ground of review
The first ground concerned the decision-maker’s conclusion that the medical information DCM20 had provided did not indicate any significant deterioration in her parents’ health. It was submitted that the medical evidence provided in support of the repeat request clearly demonstrated a deterioration in the health of DCM20’s mother in the period following the 2016 request. It was submitted that letters from the mother’s general practitioner in 2016 and 2019 demonstrated that she suffered from significant medical conditions that were not present at the time that the 2016 request was made, including mobility restrictions requiring a higher level of care. It was submitted that the decision-maker was not medically qualified to form an opinion that there had not been significant deterioration in the mother’s health. It was submitted that the decision-maker fundamentally misunderstood that the nature of the health conditions constituted a significant change in circumstances, and so fundamentally misunderstood the request.
The primary judge identified that the focus of the challenge in the first ground of review was the decision-maker’s statement that the applicant “now claims to care for her parents full-time and is no longer working but provides medical documentation which does not indicate any significant deterioration in her parents’ health”. The primary judge concluded that the statement had not been shown to be illogical or irrational, because:
(1)(at [40]) Whether there had been a significant deterioration in the mother’s health and/or a significant change in her circumstances was plainly a matter about which the decision-maker was required to be persuaded: XA v Minister for Home Affairs (2019) 274 FCR 289, Thawley J (at [170]) (citing Plaintiff M64/2015, Gageler J (at [64]).
(2)(at [41]) The submission that the decision-maker was not medically qualified to form an opinion as to whether there had been a significant deterioration in the mother’s health was untenable. Assessments of that kind were undertaken every day by administrative decision-makers on the basis of expert evidence before them. The Guidelines did not stipulate that any medical expertise was required to be possessed by the decision-maker before reliance could be placed on such material.
(3)(at [42]) It was clear that the decision-maker understood that DCM20 “now” claimed to be her mother’s “full-time” carer and that the decision-maker understood that to be a change in DCM20’s circumstances. The decision-maker had referred to the circumstances advanced in the 2016 request to the effect that at that time she was employed in the aged care sector as well as providing “essential care” (with her brother) for her aged mother, and so may be taken to have understood that the care provided in 2016 was not full-time care.
(4)(at [43]) Whether the need to provide the mother with full-time care amounted to a significant change of circumstances raising unique or exceptional circumstances was a matter for the evaluative judgment of the decision-maker. The broad and subjective nature of the function was a “virtually insuperable hurdle” in establishing that the decision lacked an evident and intelligible justification. That was especially so where there was no obligation on the decision-maker to provide a statement of reasons, such that the principles allowing for drawing of inferences where there is such an obligation do not apply.
(5)(at [44] – [45]) Relatedly, the circumstance that the decision-maker had not elaborated upon her reasons for the view that there had been no significant deterioration in the mother’s health does not demonstrate irrationality, there being no obligation to provide reasons. It could not be inferred from the absence of an explanation of each step in the decision-maker’s reasoning process that there was no evident or intelligible foundation for the opinion.
(6)(at 46]) It followed that DCM20 could only succeed if the decision-maker’s assessment was explicable only on the basis of some irrationality or misconception of the Guidelines. The evidence fell far short of establishing any such error.
(7)(at [47] – [53]) It was plainly open to the decision-maker to conclude that the mother’s health had not significantly deteriorated by reference to the brevity and inconclusive nature of the report by the mother’s general practitioner provided in 2019, which the primary judge considered in some detail.
(8)(at [54]) The exclusive focus on the decision-maker’s opinion about the medical report was itself misconceived. It was apparent that the decision-maker took into account other family circumstances including the care and support services available to the mother. It was apparent that the decision-maker not only formed the view that there had been no significant change in circumstances of the mother since the 2016 request, but was also not satisfied that new substantive issues had been raised which “would now present unique or exceptional circumstances”. Those aspects of the decision emphasised the broad evaluative judgment lying exclusively with the decision-maker, and had not been the subject of challenge.
The second ground of review
The second ground concerned the treatment of DCM20’s claims to fear harm as a single woman of Indian ethnicity should she be returned to Fiji.
The primary judge observed that clause 4 of the Guidelines provided that “unique and exceptional circumstances” may include a significant threat to personal security, human rights or human dignity arising by reason of a person’s particular circumstances or personal characteristics, but that was subject to a qualification that the mistreatment must not “meet the criteria for the grant of any type of protection visa”. Section 48B of the Act authorised the Minister to “lift the bar” in s 48A which would otherwise prohibit the making of a second protection visa application where a prior protection visa application had been refused. The primary judge observed that the Minister had issued guidelines about the referral of matters to him for possible consideration of the exercise of the s 48B power.
It was submitted that the decision-maker’s finding that it remained open to make a request under s 48B was legally unreasonable because the decision-maker had mischaracterised the claims and failed to consider the claimed threat of harm as being a relevant consideration under clause 4 of the Guidelines, and because there was no intelligible justification for ignoring or disregarding the claims of significant personal threats. As the primary judge identified, those arguments depended on a proposition that the claim to fear harm was not a claim that would meet the criteria for the grant of a protection visa.
The primary judge held that the decision-maker had not disregarded this aspect of the request for intervention and had formed the view that it was a circumstance falling outside those contemplated by clause 4 of the Guidelines. It was common ground, her Honour said, that the claims were of such a nature that, if accepted, would satisfy the criteria for the grant of a protection visa. Her Honour concluded (at [62]):
Thirdly, it was at least open to the Assistant Director to construe the qualification to unique and exceptional circumstances in s 4 of the s 351/417 Guidelines as being designed to ensure that, where the mistreatment alleged could not meet the criteria for a protection visa, the mistreatment could constitute unique and exceptional circumstances for the purposes of determining whether the case should be referred to the Minister. This construction would leave cases where the mistreatment alleged is of a kind apt to meet the criteria for a protection visa (if well founded), to be dealt relevantly by a request under the s 48B Guidelines for the Minister to lift the bar in s 48A so as to allow a further application for a protection visa. That being so, the Assistant Director’s position in the Minute to this effect was not a ‘radical’ misconstruction or misapplication of the s 351/417 Guidelines (see above at [20]-[21]). To the contrary, it is a reasonable and logical construction of the policy. Indeed, were it necessary, I would find that this was the preferable construction. As such, the applicant has not established that the Assistant Minister’s ‘decision’ is legally unreasonable on the basis alleged in ground 2.
(original emphasis)
There are two grounds of appeal.
Ground 1
On its terms, the first ground of appeal re-agitates the same arguments advanced at first instance in respect of the changed circumstance concerning the health of DCM20’s mother. The ground otherwise alleges (without particulars) appealable error on the part of the primary judge in rejecting those arguments.
The written submissions in support of this ground raise an additional complaint in respect of the non-referral decision that was not argued (and so not decided) at first instance. The argument is that the decision-maker did not consider a proposal that had been advanced in the 2019 request that DCM20 be granted a three month visitor visa which would enable her to apply on shore for a carer visa, on the basis of her status as her mother’s full-time carer. That complaint does not find expression in the grounds of appeal. It has nonetheless been answered by the respondents and so will be considered and determined.
As Counsel for the Minister submitted, the decision-maker was plainly aware of the claim that DCM20 has become the full-time carer for her mother. That was the claimed change in circumstance that fell to be evaluated, and it was in fact evaluated. In the decision-maker’s evaluation, that circumstance did not fulfil the criteria in the Guidelines, including because of other supports available for the mother, who then resided with other members of DCM20’s family. It is implicit in those conclusions that the request for intervention should not be referred to the Minister, including for the purpose of facilitating DCM20’s intention to apply for a visa founded on her status as her mother’s full-time carer.
To the extent that the first ground of appeal otherwise alleges appealable error on the part of the primary judge in rejecting all of the arguments underpinning the first ground for judicial review, that bare allegation has not been particularised in written submissions, nor has the reasoning of the primary judge otherwise been shown to involve error in any particular respect. Given the lack of particularity in argument, I do not consider it necessary to repeat all that was said by the primary judge in rejecting the contention that the decision was affected by legal unreasonableness. To the extent that the same arguments were repeated on the appeal, I would reject them for the same detailed and considered reasons expressed by the primary judge, which I gratefully adopt.
Ground 2
The second ground of appeal alleges appealable error by the primary judge in rejecting the second ground for judicial review. It is relevantly expressed as follows:
The second respondent misconstrued the Guidelines in dealing with the Sexual Assault Claim. For example, on the proper construction of sections 4 and 10 of the Guidelines, a request that ‘raises claims only with respect to Australia’s non refoulement obligations’ did not meet the guidelines for referral to the Minister. However, where a request for Ministerial intervention under ss 351 or 417 of the Act includes a claim in relation to Australian’s non refoulement obligations, as well as other claims which might involve unique or exceptional circumstances, the claim in relation to Australia’s non refoulement obligations cannot be excluded by a decision-maker in the position of the second respondent in determining whether the request should be referred to the Minister. Perry J, at [55]-[60] of the Judgment, dismissed this ground of challenge to the decision of the second respondent. Perry J erred in dismissing this ground.
The written submissions in support of this ground contain an acknowledgment that the claimed fear of harm was one that had been present for many years. In the request for intervention, it had not been suggested that there had been any recent development that had increased the risk.
It was submitted that even if the claim formed a part of DCM20’s earlier application for a protection visa, the claim had not been considered in any of the previous requests made under s 351 of the Act. The submissions otherwise repeated the arguments that had been advanced at first instance in support of the second ground for judicial review. The submissions do not demonstrate error in the substantive disposition of those arguments by the primary judge, particularly the approach her Honour took to the construction of the Guidelines in the passage at [62] of her Honour’s reasons (extracted at [354] above).
I am not satisfied that there is appealable error in the approach of the primary judge. Her Honour was correct to find that the Guidelines were not misconstrued by the original decision-maker, at least not in a way that would give rise to a finding that the decision not to refer the request to the Minister was legally unreasonable. To the extent that it is necessary to express any concluded view as to the proper construction of the Guidelines, I respectfully share the view of the primary judge.
To the extent that it was submitted that the claimed fear of harm was not so as to attract Australia’s non-refoulement obligations (which is somewhat unclear), that argument is a departure from the common ground on which the arguments at first instance were founded. As the primary judge said (at [61]), such a submission could not be sustained having regard to the manner in which the claim was expressed in the 2019 request. As alleged, the claims were clearly of a kind that (if accepted) would fulfil one or both of the alternate criteria for a protection visa. Properly construed, the Guidelines permitted the rejection of the request on the basis that the proper course was for DCM20 to request intervention under s 48B of the Act to enable her to make another protection visa application after previously being refused. The circumstance that a request under s 48B may be denied on the basis that it was repetitive of earlier protection claims does not evidence legal unreasonableness in rejecting the request made under s 351 of the Act.
It follows that this appeal must be dismissed.
I certify that the preceding one hundred and ninety (190) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 23 November 2021
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