Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v Secretary of Department of Home Affairs & Anor

[2022] HCATrans 179

[2022] HCATrans 179

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M32 of 2022

B e t w e e n -

MARTIN JOHN DAVIS

Appellant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

SECRETARY OF DEPARTMENT OF HOME AFFAIRS

Second Respondent

ASSISTANT DIRECTOR, MINISTERIAL INTERVENTION, DEPARTMENT OF HOME AFFAIRS

Third Respondent

Office of the Registry
  Sydney  No S81 of 2022

B e t w e e n -

DCM20

Appellant

and

SECRETARY OF DEPARTMENT OF HOME AFFAIRS

First Respondent

ASSISTANT DIRECTOR, MINISTERIAL INTERVENTION, DEPARTMENT OF HOME AFFAIRS

Second Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 19 OCTOBER 2022, AT 10.01 AM

Copyright in the High Court of Australia

____________________

MR C.J. HORAN, KC:   May it please the Court, I appear with MR A.F.L. KROHN and MS A.R. SAPIENZA for the appellant in each matter.  (instructed by Rasan T. Selliah & Associates)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR N.M. WOOD, SC and with MS M.F. CARISTO for the first respondent and for the Attorney‑General of the Commonwealth, intervening in both matters.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR M.W.R. ADAMS, for the Attorney‑General for New South Wales, who intervenes in both matters.  (instructed by Crown Solicitor (NSW))

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with MR J.F. METZER in both matters for the Attorney‑General for South Australia, intervening in both matters.  (instructed by Crown Solicitor’s Office (SA))

MS R.J. ORR, KC, Solicitor‑General for the State of Victoria:   If the Court pleases, I appear with MR M.A. HOSKING for the Attorney‑General for Victoria, intervening in both matters.  (instructed by Victorian Government Solicitor’s Office)

KIEFEL CJ:   There are submitting appearances for the second and third respondents.  Yes, Mr Horan.

MR HORAN:   If the Court pleases, these two appeals each raise a common question concerning the legality of a decision made by an officer of the Department of Home Affairs in relation to a request for ministerial ‑ ‑ ‑

KIEFEL CJ:   May I interrupt you at the outset?  You are going to say what they have in common is the unreasonableness question?

MR HORAN:   Yes.

KIEFEL CJ:   There is another issue in the Davis appeal though, it is either put as a question of delegation or inconsistency with the Migration Act.  It may be a little hard to pigeon-hole it, but basically it is said that the departmental officer is carrying out what the Minister is personally able to do.

MR HORAN:   Yes.  The current form of the guidelines, which differs from earlier versions, effectively transfers to the Department and its officers functions or tasks that are entrusted by the section to the Minister to be performed personally.  That is only raised in the Davis appeal, your Honour is correct.  And it is an additional ‑ ‑ ‑

KIEFEL CJ:   But if you were successful on that matter it would be dispositive of the other appeal as well, would it not?

MR HORAN:   I think that is right in the sense that it would ‑ ‑ ‑

KIEFEL CJ:   If the guidelines are unlawful, they would be so for both.

MR HORAN:   I would have to perhaps think about what relief would flow in each matter, as presumably it would mean that the decisions under the purported guidelines would be affected by some error, whether that is an error that would attract a public law remedy is something I might need to consider.

GORDON J:   I thought you had sought declaratory relief?

MR HORAN:   Declaratory relief in relation to the invalidity of the guidelines.  And then, consequential relief.

GORDON J:   And also, a declaration that the decision was extant, I think was the language used.

MR HORAN:   Yes.  Yes, your Honour, and so the same result I think would flow for both matters.

EDELMAN J:   Why would prohibition flow if the guidelines invalid from reliance or acting upon the guidelines to the extent of invalidity?

MR HORAN:   That may be the case, but it may be declaratory relief would have that effect.  I think the requests being extant then need to be considered again, either by the Minister ‑ when I say “considered”, I do not want to pre-empt the procedural decision, so they would be back on the Minister’s desk to consider – for possible consideration.  But it would also be open to the Minister to lawfully ask for assistance from his department in relation to both the procedural and the substantive decision.

But I think your Honour is – we would not resist prohibition being issued to prevent any decision being made by the Department based upon the current version of the guidelines if they were held by this Court to be inconsistent with the Act.

KIEFEL CJ:   This issue raised in Davis, which is your ground 2 in Davis, logically is anterior to the other questions, I think.  But I would not want to take you out of your order that you prepared for.

MR HORAN:   I can deal with it first, but because I wanted to make some submissions about the structure and content of section 351 before coming to it, I think those submissions would shed light on ground 2.

GORDON J:   I think that is right.  If you start in the statute, then it may inform ground 2.

MR HORAN:   Now, I was subject, as your Honours will see from my oral outline – I was going to start with the facts.  But I am happy to ‑ ‑ ‑ 

KIEFEL CJ:   No, we will not take you out of your order.

MR HORAN:   Yes.  The common question that is raised by grounds 1 and 2 of – I think, if I have got these correct, of the DCM20 appeal, and ground 1 of the Davis appeal, is in relation to the legality of the decision made by the officer in relation to the request for intervention.

Each decision was made in the purported application of the guidelines – the current version of the guidelines – issued by the Minister, by which the Minister instructs officers of his department as to the circumstances in which a request for intervention should be referred to him for the possible consideration of the exercise of the dispensing powers, as well as the circumstances in which he does not wish to consider the exercise of those powers.

In each case, the appellant alleges that the decision made by the departmental officer to finalise his or her request without referral to the Minister was legally unreasonable, in a range of ways, and thereby infringed a legal limit on the power that was exercised by the officer – I should say “power or function”, perhaps, to be more accurate.

It is now common ground that the decision made by the officer under the guidelines did not have a statutory basis in that it did not involve the exercise of a power or function conferred by the Migration Act.

EDELMAN J:   It may depend what is precisely meant by “common ground”, because I am noticing in your submissions, for example, you say that it is associated with the statute but does not have a statutory basis.  At least for my part, it is not clear to me that there is no statutory basis for the guidelines in the sense that, if one thinks of section 351 as containing not merely a power but also a liberty to consider whether or not to exercise the power, then that liberty may be very strongly associated with the guidelines.  It may even be delegated in the guidelines.

MR HORAN:   Yes, and in this current form, the guidelines do purport to delegate that liberty to consider in a much more direct way than the previous guidelines.

EDELMAN J:   But in that sense, then, there has been – there is a statutory basis.  The question may then be whether there is power to delegate.

MR HORAN:   Yes.  That returns to ground 2 of the Davis appeal in relation to questions of validity of the guidelines.  But, putting the competence and validity questions to one side, we would respectfully agree with your Honour that the common ground that I have identified is narrow in the sense that it is only that we accept that, based upon this Court’s authority – past authority – on these dispensing provisions, that the function of applying the guidelines does not involve the exercise of a statutory power.  It is anterior to the statutory process.  But we do, as your Honour has noted, emphasise the very close connection between the purpose of the function entrusted to the Department by the guidelines, and the statutory scheme as a whole – including, in particular, the dispensing powers.

That has been recognised in this Court’s decisions in SZSSJ and Plaintiff S10/2011 – the number of ways in which the statute implicitly recognises that requests will be made – that they have consequences, legal consequences, under the Act and the Regulations and that they must be, in some way, determined or finalised.  Now, up until the current guidelines – which date from 2016 – all of that was done, ultimately, in the Minister’s office – although, with a very heavy reliance on the Department to filter and categorise cases and identify ones that were worthy of a separate submission – as opposed to those which were simply listed in a schedule or table.

But in every case, in some form, the request was brought to the Minister’s attention and the Minister disposed of the request.  Now, that is not to say that there is an obligation to make a personal procedural decision to consider the request, because the procedural decision can be what we have described as the converse of that gateway to the statutory power and that is a decision personally made by the Minister not to consider the request.

In all of the past authorities of this Court and the Federal Court, with the exception, perhaps, of some more recent decisions in the Federal Court, which have perhaps not appreciated this difference in the guidelines, it has been the case that the assessment processes have been supporting and assisting the Minister to make a procedural decision.

EDELMAN J:   It is a distinction between assisting and advising on the one hand and exercising the liberty themselves, on the other.

MR HORAN:   Yes.  Because, in the past, the Minister would receive information from his or her department and then decide, whether by noting an approval recommendation or otherwise, what should happen to the request and the Department was then told to communicate that outcome to the person requesting or their representative, whereas now there is no engagement at all with the Minister’s office, if the Department assesses, in its own view, that something does not meet the threshold identified in the guidelines.  Now, we have identified that as affecting interests both in a legal sense under the Act and regulations and in a practical sense.

I would respectfully expand that to include the type of liberty that your Honour has identified that may be created by the dispensing provisions that provide an opportunity to persons requesting to have their request considered.  I will come later to the point about whether there is a duty to bring requests to the attention of the Minister, but we do say that their Honours Justice Griffiths and Justice Charlesworth were correct in assuming that there is some form of obligation for requests that are made to the Minister, for the Minister to be cognisant in some way of those requests in the sense that that opportunity to exercise both the procedural and substantive decision‑making powers can be exercised.

GORDON J:   You do not need to go that far, though, do you?  If you look at the essential elements and you start with the statute you have got three aspects ‑ we will put the duty/no duty to consider aside for the moment ‑ but you have got a personal non‑compellable power and it is a broad discretionary power that has got to be exercised in the public interest.  You might look at inconsistency or incongruence in a variety of ways, and I notice that you have done it by reference to non‑delegability in ground 2, but the question posed by the Chief Justice at the beginning is, I think, the critical question, and that is:  is it appropriate, possible, I do not know, it does not matter what word you use, whether it is a policy or these form of directions which are, arguably, possibly, inconsistent with that which is set out in section 351.

MR HORAN:   Yes.  So, what we do say is that those sections – section 351 and the other dispensing provisions – in those sections, Parliament has given a function to the Minister to be exercised in the public interest.  The intention of Parliament – and the assumption – is that persons will be able to invoke those powers.  Now, the Minister does not have any duty to consider the requests – that is clearly stated.  But, for a scheme to deprive the Minister of the opportunity to consider a request, we say, if that were done – unilaterally, for example – without involvement of the Minister, that would be very questionable.  Here, it is being done on the purported instruction or direction of the Minister.

KIEFEL CJ:   Here, you have something that may or may not be described as “delegation” but, on your argument, it would be, effectively, the Minister ensuring that the matter does not come before him.

MR HORAN:   Yes.  I think, our learned friends go so far as to say – and, perhaps, there is some obiter in cases to support this – that the Minister can even say, I do not want this function, and issue a one‑page guideline that says, I never want to see one of these requests again.  That is an extreme example, but we say, that form of instruction or policy would sit very uncomfortably with the ‑ ‑ ‑

EDELMAN J:   But that is still different – whether or not that is valid – that is still different from this case ‑ ‑ ‑

MR HORAN:   Yes.

EDELMAN J:   ‑ ‑ ‑ because that is a situation where the Minister is still exercising the liberty.  But, on your case here, the different is that the Minister, in some circumstances, is not exercising any liberty to consider – that liberty to consider has, effectively, been delegated to the Department.

MR HORAN:   Yes, your Honour.  Although – and it has been delegated with a framework or criteria to be applied – and, in one sense, the case of Raikua – which has been referred to in the Federal Court of Justice Lindgren – that has echoes of what these guidelines do because it involved a request being made and personally dealt with by the Minister who personally decided not to exercise the power – or, perhaps not to consider, I cannot recall which – but then said, I direct you, my officer, if another request is made, do not send me that request unless unique or exceptional circumstances arise.  That was treated by Justice Lindgren as being a decision by the Minister that was then implemented or given effect by the officer in ascertaining whether there were unique or exceptional circumstances.

In some senses, that is what these guidelines now do, across the board.  They say, I only want to see any request – even a first request – if it satisfies these set criteria.  It may be that that – pursuing your Honour Justice Edelman’s analysis – my learned friends might say, that is similarly – reflects a decision by the Minister not to exercise the liberty for certain kinds of cases.  They could be identified very specifically by reference to particular types of applicant or types of circumstances or, as here, very generally by creating an ancillary public interest framework which is then applied by the Department to assess whether or not the Department considers that those public interest factors warrant the matter going further.

GLEESON J:   It might not be a decision by the Minister so much as a fettering of the capacity to make a future decision.

MR HORAN:   Yes, although one should not forget in relation to fettering that the guidelines themselves have a safety valve of in issuing this guideline the Minister says that he – I think it is he – is not foreclosing the exercise of the powers even if a matter does not satisfy the guidelines.

GLEESON J:   But that is farcical if he is fettering his capacity to receive the request.

MR HORAN:   Yes.  It may be that it could arise if there were significant media attention, for example, to a particular case and the Minister could then say, I am aware now of this case.  I want to be briefed on it or I would like to consider – but putting to one side those extraordinary situations, then no request will make it past the Assistant Director’s desk unless it rises above the threshold of the various unique or exceptional circumstances identified in the criteria.

EDELMAN J:   There may be a difference between a category of case where the Minister issues a guideline which is to be implemented by the Department according to purely factual criteria and where the guidelines such as unique or exceptional circumstances is highly evaluative and cannot truly be said to have been the exercise of liberty by the Minister himself, given the discretion that is left to the officials.

MR HORAN:   Yes.  I think as we couched it in our written submissions, if there were objective criteria, objection facts, for example, like the holding of a particular class of visa or any objective characteristic about – it might be the length of time a person has been in Australia or matters that can be easily ascertained administratively by the Department as opposed to almost stepping into the shoes of the Minister in an anticipatory way and the Assistant Director has to assess whether or not this is worthy of the opportunity to come before the Minister for possible consideration.

As I say, this was a landmark change in the directions because up until 2016 nothing of this nature was ever suggested that requests made to the Minister – and I will go to the requests later – but they are addressed to the Minister and the guidelines themselves are couched in terms of the Minister receiving requests.  So, under these guidelines though, it is only in a very, very abstract and disingenuous way that it can be said that the Minister has received a request that is finalised without referral.

STEWARD J:   Can I ask a question just to clarify matters for my mind.  You make the observation that the decisions are not divorced from the Migration Act, but – two matters.  Firstly, the two decisions here you would say are not made under the Act for the purpose of section 474?

MR HORAN:   Yes, that is correct.

STEWARD J:   Then the decision to issue these guidelines, are they also not made under the Act?

MR HORAN:   I think that is correct, because they are not made as directions under section 499.

STEWARD J: Under 499, no. So, where do you source the power to issue the guidelines? Is it section 61, is it something more abstract, or what?

MR HORAN:   It is analogous to the issuing of non‑binding guidelines in relation to the exercise of a statutory discretion which can always be issued, even if the statute does not expressly confer a power to make guidelines.  Of course, they have to be non‑fettering, non‑binding policy – guidelines, but this is an analogous instrument in that, as an exercise of the executive power incidental to the administration of the Migration Act, the Minister has structured the power under section 351 and other sections ‑ ‑ ‑

STEWARD J:   If these matters are not made under the Act, then is it necessarily the case that decisions made under the guidelines can only practically affect rights and interests as distinct from necessarily legally obliterating rights and interests?

MR HORAN:   They do have – as we have identified, they certainly affect interests, if not rights.

STEWARD J:   Do they do that practically or legally?

MR HORAN:   Probably the closest one gets to a direct legal effect would be the bridging visa eligibility, because the Act through the regulations creates an entitlement to a bridging visa if the various criteria are satisfied.  One of those is tied to the making of a request.  We have said that that, on its proper construction, refers to a pending request so that the finalisation of the request – by the Ministers certainly and, under these guidelines, by the officer – would remove the eligibility under that criterion.  What that means is, a person who has requested the exercise of power under section 351, by reason of making that request – subject to other criteria – can be granted a bridging visa allowing them to remain in Australia and remain at liberty while that request is on foot.

Now, it is true, as our learned friends point out that the duration of the bridging visa is not tied to the decision to finalise the request or – whether that would be by the Department or a decision not to consider by the Minister – does not have an immediate direct terminating effect on the bridging visa under its duration, but what it means is that when that bridging visa elapses on the specified date in the visa, that person will no longer be entitled to a further bridging visa; an extension of their ability to stay in Australia.  So, in that sense, we would say that is a legal effect on legal rights.  It removes ‑ ‑ ‑

STEWARD J:   And is that the only one?

MR HORAN:   The other interests, we say, are perhaps more practical.  They are not strict legal rights.  They are what might be described in earlier times as legitimate expectations but they are part of that opportunity to have consideration given to the dispensing powers, which Parliament has created as a safety valve to deal with all kinds of exceptional migration situations.

KIEFEL CJ:   Mr Horan, I think we have substantially diverted you for about half an hour now.  You may wish to return to the outline of your argument as you proposed.

MR HORAN:   Yes.  Well, I might divert back into the facts just to give some concrete context for how these issues arise in these appeals before turning back to the statutory framework and the nature of the processes conducted by the Department which was the subject of the exchanges that I have just engaged in.

I do not want to spend an undue amount of time on the facts, but it should be remembered that our appeal grounds relate to the establishment of legal unreasonableness and each appellant is appealing against the rejection by the Full Court of their contentions that the decisions were legally unreasonable under the principles in Li and other cases.  So, we have the burden of making out those appeal grounds perhaps before one gets to the other issues in the notice of contention.

In relation to Davis, Mr Davis is a citizen of the United Kingdom who has lived and worked in Australia since his arrival in mid‑1997 on a working holiday visa.  In mid‑1998 – so that was just before the expiration of his one‑year working visa – he briefly departed Australia before returning six or seven weeks later on an Electronic Travel Authority, and then I think the state of the evidence is that he then mistakenly assumed that he had permanent residency based upon his pending application for a partner visa.  Although one – there is no suggestion that he did not have that belief at all material times, and in fact that was corroborated by the fact that he able to obtain a Medicare card and he filed regular tax returns for 20‑odd years or more as an Australian resident.  So, he had tax resident status from the Australian Tax Office.

Then, in November 2014, on returning from a visit to the United Kingdom, it came to light that he did not hold a current visa.  Even then, he was nevertheless permitted to re‑enter and remain in Australia, first on a visitor visa and then on a subclass 457 Temporary Work visa.  That work visa was eventually cancelled after he lost his sponsorship from his employer.  In the meantime, he had applied for a partner visa but that was also ultimately refused by a delegate and then by the Tribunal, which is what then leads to his request for intervention to the Minister.

That request was made on 11 February 2019.  It appears at page 5 of the joint book of further material, and that is the document which I noted before was addressed – both the email and the letter was addressed to the Honourable David Coleman MP, Minister of Immigration, Citizenship and Multicultural Affairs.  “Dear Minister”, it begins.  In broad terms in that letter from the appellant’s – Mr Davis’ representative, he relied on “unique and exceptional circumstances” arising from his long period of residence in Australia and his contribution to the Australian community.

Relevantly to the present appeal – so focusing just on the material, or the most relevant aspect of his request – he placed particular reliance on a criteria and guidelines relating to:

Strong compassionate circumstances that . . . would result in . . . continuing hardship to an Australian citizen –

And, apart from a number of letters of support from various business and social associates that he had during his lengthy stay in Australia, in particular, at paragraph 70 to 72, at page 15 of the further materials, he submitted that his departure:

would have a severe emotional effect –

on various people, including an elderly Australian citizen, with whom he had formed a close, “caring relationship”.  Now that is a woman – Ms Giddins – and she gave a statutory declaration in support of the applicant, which is at page 28 of the further materials in which, relevantly, Ms Giddins states that she had known Mr Davis for eight years, since 2011, and had since:

formed a caring relationship and he often refers to me as his “second Mum”.

Then, at paragraph 5 of the statutory declaration:

If the Government deported Martin it would have a serious impact on my life and my reliance upon him.  It would be like loosing a son.

She had earlier addressed all of the types of assistance and support that he had provided on a day‑to‑day basis over that period.  When the request was assessed by the departmental officer who, on the first occasion, was simply a case officer – it was not even the Assistant Director – that assessment is at the further materials at page 46, and I think it is also in the core appeal book at page 5.  In summary, that minute, it was addressed to the Assistant Director by the relevant case officer ‑ ‑ ‑

GAGELER J:   Sorry, where is it?

MR HORAN:   Just at page 46 of the further materials I am on.

GORDON J:   What date is this?

MR HORAN:   This is date of 8 May 2019.  So, this relates to the first decision – or purported decision.  As I say, I think it is the core appeal book also; one of the first documents.

GORDON J:   Sorry, can I just ask that question?  You said it was made by an officer but it is directed to the Assistant Director, is it not?

MR HORAN:   Yes, and it is effectively – like a ministerial brief, it is ‑ ‑ ‑

GORDON J:   But to the Assistant Director.

MR HORAN:   Yes.

GORDON J:   Thank you.

MR HORAN:   So, the Assistant Director does make her document because she indicates on page 53 she agrees with the assessment.  But the assessment was conducted in that brief.  Essentially, what we say is the minute completely overlooked and failed to assess claims that were made by Mr Davis in relation to compassionate circumstances involving hardship to Australian citizens caused by his removal, including in particular the claims in relation to Ms Giddins.

One can see that at page 51 of the minute where in fourth dot point it stated that – this is in the third line:

his integration claims for the most part rely on his business ties.

And then, to make it even more clear, in the following dot point – the final sentence – it was asserted that:

There is no evidence that any Australian citizen, permanent resident, or Australian business, will suffer hardship as a result of his departure.

EDELMAN J:   Where is that?

MR HORAN:   This is at point 7 on page 51, the last sentence before ‑ ‑ ‑

EDELMAN J:   I see.

MR HORAN:   The Full Court below correctly found at paragraph 324 in the judgment of Justice Charlesworth, with whom the other judges agreed, that the Assistant Director did not have regard at all to the impact upon Ms Giddins when the request for intervention was first assessed.  What one needs to come to is what happened after that.

Before leaving this minute, we do advance some other aspects of irrationality and unreasonableness in this assessment.  One is that the minute also discounts as unmeritorious the claims that have been made by Mr Davis in relation to the length of time that he had resided in Australia on the basis that a significant period of that time was spent as an unlawful non‑citizen.  Nowhere does the officer take into account, when making that statement, Mr Davis’ explanation that he believed that he was a permanent resident and lawful during that time, which belief was apparently supported by his Medicare and tax resident status.  But then it goes further, by stating – I just need to find the ‑ ‑ ‑

EDELMAN J:   Just while you are looking for that, what was the Electronic Travel Authority that he arrived on in mid‑1998?

MR HORAN:   I think it is probably something akin to a visitor tourist visa perhaps.  Or something ‑ ‑ ‑

EDELMAN J:  A short‑term ‑ ‑ ‑

MR HORAN:   A short‑term visa, I think.

GORDON J:   It was valid for three months, I think.

MR HORAN:   I think that is right.  My learned friend might be able to correct me if that is wrong.  So, it may have been completely surprising and unreasonable that he assumed that that was sufficient, but he had also at that time submitted – he was in a relationship with an Australian citizen.  He had submitted a partner visa, or he says that he had submitted a partner visa in paper form, and that was the basis for his belief that he could stay there until that application was determined.

EDELMAN J:   Would not the submission of a partner visa trigger a bridging visa?

MR HORAN:   I think if he had gone to a lawyer, then these irregularities would have been – he would have been advised to regularise his status.  But there is nothing to suggest that he did not have a genuine belief that he was lawfully in Australia where he remained and worked and paid tax.

The difficulty is then that then the case officer and the Assistant Director assess his – not only do they not take account of that explanation for his period of unlawful residence but they go further and say, when considering all of his considerable investment and business ties, they are discounted on the basis that they are said to have been:

obtained in the full knowledge that he did not have the right to remain in Australia permanently –

There is just no evidence for that finding.  It is completely irrational.

GORDON J:   Where is that?

MR HORAN:   Well, that is what I was trying to find.  I am sorry, your Honour.  I might need to come back to that, your Honour.  Maybe my learned junior could scour the – I think it is on page ‑ ‑ ‑

GORDON J:   I think it is on page 51, in the third bullet point.  Is that in the context of:

decision to purchase property in 2017/2018 when he did not have an entitlement to remain in Australia permanently was his own personal choice –

Is that the bit?

MR HORAN:   Yes, that is one aspect, but I think it went ‑ ‑ ‑ 

JAGOT J:   And the fifth bullet point as well makes the same point.  I think probably the point you are making:

The Department considers that the investment and business ties . . . obtained in the full knowledge ‑ ‑ ‑

MR HORAN:   Yes, it is also in the fifth dot point.  I am sorry, your Honours, I should have had this marked up.  It is the start of the final dot point:

The Department considers that the investment and business ties to Australia, obtained in the full knowledge that he did not have the right to remain in Australia permanently, are the ordinary result of his latter periods spent in Australia on temporary work and bridging visas –

GORDON J:   So, what is the point?  Sorry, I am a bit lost.

MR HORAN:   Well, it does not take into account that his investment in business ties, at least in part, were built up through a period in which he did not have knowledge that he did not have the right to remain in Australia permanently; rather, he had a mistaken belief that he was entitled to reside.  Now, it might be that the officer was looking only at the period after that was brought to light because it is true that the officer than goes on to say the:

ordinary result of his latter periods spent in Australia on temporary work and bridging visas –

and I assume that means the visas that he had after it came to light that he did not – after he returned in 2014.  But we say his investment and business ties went beyond the last five years since he had come back and it was discovered that he did not have the right of lawful residence – permanent residence.  So, essentially, what we say is that those findings are irrational and involved a misapplication of the criteria or considerations in the guidelines and without any – to use the language of Li – there was no “intelligible justification” for the decision or the outcome of the assessment against the guidelines.

GAGELER J:   Mr Horan, can I just understand the way in which you use the misapplication of the guidelines.  Is that just indicative of unreasonableness, or is it an independent point?

MR HORAN:   I think we have put it to date – so below and in our submissions in this Court – as indicative of legal unreasonableness, but on the basis that it has been recognised in some of the cases that legal unreasonableness can arise in different ways and it can encompass aspects of what might also give rise to other categories or grounds of jurisdictional error or judicial review.

So, one could say, for example, the failure to consider the claims or the evidence in relation to Ms Giddins, in a different context, that might be put as a failure to have regard to relevant considerations or a failure to perform a statutory task of review or of making a decision.  Because this is non‑statutory, we have to ‑ ‑ ‑ 

GAGELER J:   I understand the difficulties in presenting the argument.  My real question was whether there is some independent point about the guidelines, and I think the answer to that is, no.

MR HORAN:   I think, no.  We have not said that the guidelines have the status of law or that they must be correctly – that there is a direct error of misconstruction or misapplication of the guidelines, but that such a misconstruction or misapplication can give rise to legal unreasonableness or an inference of some other legal error.

GAGELER J:   You are only relying on legal unreasonableness, are you not?

MR HORAN:   Yes.  I think in cases like – there is reference to Gray and Taveli which talk about a misconstruction or misunderstanding of a policy.

GAGELER J:   But you are not going there?

MR HORAN:   No – but mainly because that is in the context of the policy causing the officer to misunderstand the statutory task.  We have to appeal to more fundamental limits.

GAGELER J:   Yes, I understand that.  So, we are concerned only with unreasonableness.  I have been trying to map your argument against your outline.  Do we take paragraphs 3(a) and (b) as giving particulars of unreasonableness?

MR HORAN:   Yes.

GAGELER J:   Is paragraph 4 another particular?

MR HORAN:   That is another particular.  There is, rolled up in paragraph 4(2), other particulars.

GAGELER J:   Can you unroll them?

MR HORAN:   They are dealt with at paragraphs 62 to 72 of the written submissions.  The first is the disregarding of the length of time – which is the point that I have been addressing – that it was discounted for irrational reasons.  The second is a discrete one of – nowhere in the guidelines is there any contemplation of the potential safety valve power under section 12 of the guidelines.

GORDON J:   So, there are four complaints – four particulars of legal unreasonableness, failure to address Ms Giddins ‑ ‑ ‑

MR HORAN:   Yes.

GORDON J:   ‑ ‑ ‑ failure to ‑ ‑ ‑

MR HORAN:   I think 3(b) is one that I will come to – that is the repeat request.

GORDON J:   There is a fifth.

MR HORAN:   The three that I have is the failure in relation to Ms Giddins to deal with that claim; the irrational way in which the length of the appellant’s residence was dealt with.  The third is the failure to consider the possible consideration against the public interest, other than unique or exceptional circumstances.  The fourth is one that arises next because it then gives rise to this second decision which is relied upon by the respondents and was accepted below – effectively made the errors in the first decision ‑ ‑ ‑

GORDON J:   Can I add one more in?  I had thought that you complained about the build‑up of property in the context of knowledge that he did not have permanent residency.

MR HORAN:   Yes.  I was treating that as an aspect of ‑ ‑ ‑

GORDON J:   I see.  It is not an independent ground ‑ ‑ ‑ 

MR HORAN:   ‑ ‑ ‑ the length of time ‑ ‑ ‑

GORDON J:   ‑ ‑ ‑ independent particular.

MR HORAN:   ‑ ‑ ‑ that it was treating that length of time as not relevant ‑ ‑ ‑

GORDON J:   Thank you.

MR HORAN:   ‑ ‑ ‑ both the length of time and the associated business and property interests were not given weight because of the knowing residence without a right to remain permanently.  I will skip more quickly to the repeat request because that was at the further materials page 59.  Mr Davis’ representative then then complains immediately on receipt of this decision – the assessment, of course, is not provided to – well, actually I am not sure.  I do not think the assessment is provided.  Mr Davis just got a letter informing him of the outcome, and then there is the complaint that:

the Department has not considered various elements in our submissions –

One of which is, at the top of page 60, all of the compassionate circumstances in relation to “hardship to an Australian citizen”, placing particular reliance on the statutory declaration of Ms Giddins.  That is then addressed by the Assistant Director herself on 20 May at page 63.  The first point to note is that it is explicitly couched as an assessment of what is described as a repeat request for intervention, which triggers a completely different set of criteria under the guidelines that effectively – it is a bit like applying again for leave to a court when there is no material change in circumstances.  Essentially, a repeat request will only be referred in very limited circumstances including where there is a significant change in circumstance which raises new substantive issues.

That treatment of this request as a repeat request is clear in the letter that was ultimately sent to Mr Davis at pages 67 to 68, which explicitly refer to it being finalised on the basis that it was a repeat request that did not meet the criterion.  Now, when assessing that higher bar, significant change in circumstances, the minute at page 65 makes it clear that that is the reason why the repeat request will not be referred, but on the previous page states, we submit wrongly, in the second last paragraph:

In this current repeat request, he reiterates previously considered claims relating to longevity –

et cetera, and it includes as previously considered claims that:

he has formed close relationships with a range of people.

So, at the outset Ms Dix is saying that these have been previously considered, so unless there has been a significant change in circumstances you do not even get to first base.  There is then a sentence which was relied upon below as being active consideration of these strong compassionate circumstances in that it acknowledges the claimed bond with Ms Giddins and then says – only acknowledges it to assert that:

there is no evidence that no other person in the community such as relatives, friends, or community support services, are unable to provide any support to this elderly Australian citizen which it is claimed receives from Mr Davis.

Before coming to that particular consideration that was given to Ms Giddins’ claim, we say that it was more than merely disingenuous, as the Full Court stated at paragraph 327, for the Assistant Director to treat this 15 May letter as a repeat letter, because it fundamentally altered the premise and the basis of the assessment under the guidelines and rendered it incapable of curing the deficiency in the first assessment.

STEWARD J:   But, on its face though, the dealing with the claim about Ms Giddins is not that this is not new material but that, as it says, just reading on its face, it is rejected because there is no evidence no other person could assist her.

MR HORAN:   There are two problems with that.  That is a very limited basis on which to ‑ ‑ ‑

STEWARD J:   . . . . . yes.

MR HORAN:   And one has to assume, from the context of this note and the immediately following paragraph – sorry, two paragraphs further on – that the Director has assessed that claim through the wrong prism – or against the wrong criteria, because it ‑ ‑ ‑

STEWARD J:   That may be so, but you cannot say that it has not been considered.

MR HORAN:   To the extent that it was considered, it was considered on the assumption that it had been previously considered and on the basis that it would not merit referral unless there was a significant change in circumstances raising new substantive issues.

We say that that does not constitute sufficient active consideration for the purposes of the guidelines because it was not assessing it under section 10.1, it was assessing it under section 10.2 which has – where one does not even apply the unique and exceptional circumstances criterion unless one gets through the gateway of significant change in circumstance.

The second point we make is that it was legally unreasonable and irrational to rely upon an absence of evidence that the support provided by Mr Davis was not available from other persons.  Now, in circumstances where Mr Davis, through his representative, had expressly offered to provide any further evidence on request about his relationship with Ms Giddins, we say that was an unreasonable failure to obtain readily available material about a critical fact.

So, it was unreasonable not to determine that claim on a forensic evidentiary basis without considering whether or not to ask for further information about the type of assistance.

One would assume – just from reading the statutory declaration – this is not the type of assistance or support that could be provided by just any other person.  It was assistance provided to someone with whom Mr Davis had formed a close bond and was like a second mother or a second son.

EDELMAN J:   Mr Horan, why do you need to establish unreasonableness?  If – as I expect you will come to in your second submission – a liberty to consider is something that just could not be delegated to the Department, that is, on your submission, the end of the story.  If you are wrong about that and the liberty to consider is a matter that could be delegated to officials, then a failure by the officials to comply with the terms of delegation does not need to be unreasonable in order to be beyond their power, does it?

MR HORAN:   Yes, well, I think this returns to the question that Justice Gageler asked earlier of whether we rely on anything beyond unreasonableness, and I was perhaps hesitant to embrace that the guidelines as ministerial instructions were themselves binding in the sense that the officer was under a legal duty to give effect to the guidelines as ‑ ‑ ‑

EDELMAN J:   But if they are a delegation of a liberty then they would have to be something that would be followed, and if they are not a delegation of the liberty because the liberty could not be delegated then you are in your second submission.

MR HORAN:   I think that is correct, your Honour.  I would not want to abandon any analysis by which the instructions were to be given some direct effect in the task that is performed by the officer, whether that be by delegation – I think we put it in the submissions more on the basis that when the Minister gives an instruction to an officer of the Department then the Minister expects and assumes that that instruction will be followed.  We have referred to extreme cases of bad faith or corruption or the like, but the Minister would be surprised if, having issued this guideline, a particular officer was sending out finalisation letters without applying the guidelines at all, or ‑ ‑ ‑

EDELMAN J:   Or applying them in an unreasonable way.

MR HORAN:   Yes, and that is how we – we use that as a foothold to get into a framework of unreasonableness.  But at its bottom, it is expecting the public officer to do their duty in applying an instruction from their responsible Minister, and that is highlighted under the current guidelines, as opposed to the previous versions, because the officer has complete determinative discretion.

So the case never – it may have been different when the Minister said, tell me which of these cases falls into these categories and then give me submissions or lists and I will then dispose of the requests, but now there has been a letting‑go of that power and giving it to the Department on the assumption that those instructions will be faithfully applied.  We certainly say that a misconstruction or a distortion of the effect of the guidelines leaves that task unperformed in a lawful sense.

GAGELER J:   Well, Mr Horan, have you changed your answer to my question?

MR HORAN:   Well, I think I have changed it in the sense that we – our primary submission is that the instructions – the common law principle of legal unreasonableness on which we rely constrains the power of the official in assessing requests under the ministerial instruction and that a failure to apply that guideline or instruction in good faith and on a proper construction would infringe that requirement.

GAGELER J:   Per se.

MR HORAN:   Per se, and it depends whether ‑ ‑ ‑

EDELMAN J:   On one view, reasonableness is just part of the proper construction of the argument. 

MR HORAN:   Yes, and perhaps it is analogous to the common law’s principle of statutory construction and an implied condition of every statutory power is that it be exercised reasonably and on a correct understanding of the law and, here, the implication in the ministerial instruction containing the guidelines is that the guidelines be applied reasonably.

EDELMAN J:   Well, one sees it in contracts and trust instruments and wills, it is not just statutes.

MR HORAN:   It is reasonably and on a correct understanding of the instruments.  So, the implication in the instruction encompasses an implied duty to act reasonably.  So, in that sense, this particular guideline, we say, the price of giving that function to a departmental officer to do without further recourse to the Minister is that it has to be done within the four corners of the guideline, including the implied condition of legal reasonableness.

So, ultimately, we say it is the same thing, I think, in answer to your Honour Justice Gageler’s question, that it is a way of applying legal unreasonableness to the function, whether that be through a direct application of the common law to executive powers, functions or capacities under section 61 of the Constitution, or whether it is a common law principle that applies to the ministerial instruction, so that where there is a specific delegation or transfer of responsibility, one reads into it an implication of reasonableness in the exercise of those powers.

So, I think the short answer, your Honour, is that I probably have changed my answer to your Honour’s question that, in part, we do rely on legal unreasonableness but we get to legal unreasonableness through a variety of pathways, one of which might involve treating the guideline as giving rise to some obligation to apply the guideline correctly, or on a correct understanding.

Now I just need to deal with the facts in the other appeal, DCM20.  I will try to be relatively quick.  The appellant in DCM20 is a citizen of Fiji who has lived in Australia since 1993.  So, like the Davis appeal, this is another non-citizen who has lived in Australia for an extraordinary period of time.

DCM20 arrived in Australia with her parents and two siblings, I think all or most of whom have since become Australian citizens.  But the appellant, that is, DCM20, experienced some irregularities in her visa history which I will not go into, but it resulted in the fact that she was ultimately refused a sub-class 851 Resolution of Status visa on 27 August 2013.

Unlike Mr Davis, who made his first request for intervention at the start of 2019, DCM20 had made a number of previous requests for ministerial intervention under section 351 and I think also under section 417.  In most of those, she relied on claims that she provided care to her elderly and frail parents and assisted in caring for her niece and nephew.  The most recent request, which is the one that gives rise to this appeal, was made on 20 December 2019 and that is in the joint book of further materials at page 42.

The relevant point to note is that, of course, being a repeat request, it was necessary under the guidelines for DCM20 to show a significant change in circumstances.  The significant change that was relied upon in this letter was that since the previous request had been dealt with, DCM20 had become the full-time carer of her elderly parents.  That is, she had ceased full-time work.  I think she worked in aged care as a qualified assistant.  She had now become a full-time carer and her parents were dependent upon her for day-to-day care and assistance.

Relevantly to this appeal, there are two things in the request.  The first is on the final page, page 48, the request was, perhaps unusually, made in quite specific terms.  It was a request that the Minister exercise the discretionary power under either section 351 or 417, to substitute the MRT’s decision for a more favourable decision enabling the applicant to apply for an onshore carer visa after being granted a three-month visitor visa.

So, essentially, the request was proposing that she be granted a three‑month visitor visa which would then enable her to apply for an onshore carer visa for which, one assumes, she had a chance of being eligible.  That proposal arose directly from what was relied upon as the significant change in circumstances because it was connected to the change by which DCM20 had commenced caring for her parents on a full‑time basis and one can look back to an earlier request which foreshadowed this very situation.  So, in dealing with an earlier request, on page 27 of the further materials, the Assistant Director – having refused the request in the briefing minute – the case officer – in fact, maybe this is the Assistant Director.  This is submission to the Minister in 2016, and at paragraph 42, the Assistant Director tells the Minister:

You may wish to indicate if you would like to consider granting the following –

There is a permanent visa that is indicated.  But then, at paragraph 44, it said:

A temporary visa option has not been offered in this case as on the available information it is unlikely that –

DCM20:

would meet the requirements for the grant of a further visa onshore.

So, what this specific proposal, at page 48, was doing was responding to that and saying, now my circumstances have changed such that I am likely to qualify for the grant of a further visa onshore, so that you should consider the grant of a temporary visa option – being the three‑month visitor visa.

We say that that proposal, essentially, was never addressed in the assessment, which I will come to.  The other aspect of the request is at pages 47 to 48, under the heading (f), there is a submission that invoked a particular criterion which I think appears at section 4, the sixth dot point of the guidelines which are at page 63 of the further materials – and that is that there are:

particular circumstances or personal characteristics provide a sound  basis for believing that there is a significant threat to their personal security, human rights or human indignity –

et cetera, on return to Fiji:

but the mistreatment does not meet the criteria for the grant of any type of protection visa –

There is there recounted a claim in relation to the particular circumstances or personal characteristics of DCM 20 gave rise to a risk of sexual assault or violent abuse in Fiji.  But it is quite specifically not put in that section of the request that this give rise to an ability to meet the criteria for the grant of any type of protection visa.  In fact, the opposite is said – rightly or wrongly.  But what was being relied upon was this threat to personal security, human rights or human dignity is not one that would meet the criteria for a protection visa.

So, when this was assessed by the Assistant Director – and this is not in the further materials, it is in the core appeal book at page 5 – the conclusion again is that this does not meet the guidelines for referral as a repeat request, but in relation to the first point I submitted above, there is nothing in this assessment that considered the proposal that DCM20 be granted a temporary visa to enable her to apply for a permanent residence as an onshore carer.  Instead, the Assistant Director characterises the request as merely reiterating claims which were previously considered in relation to caring for her parents and fails to appreciate – or overlooks – the practical significance of the change in circumstances by which DCM20 had become the full‑time carer of her parents, potentially enlivening different visa entitlements.

In relation to the second point, the risk of harm on return to Fiji, the minute concludes that that does not fall within the ambit of the guidelines on the basis that she had previously been found not to be owed protection obligations and could make a request under section 48B, which allows her to make a further protection visa application – that is at page 7 in the third‑last paragraph.

That way of dealing with that claim completely misses the point by wrongly assuming that the claim raised non‑refoulement obligations, but it is clear from the request that was made that the fear of mistreatment was one that did not involve non‑refoulement obligations or meet the criteria for a protection visa.  So that claim, that there may be a risk of harm not attracting an entitlement to a protection visa was never assessed and, by definition, would not be capable of being raised in support of a section 48B request, or a further protection visa application.

That is all I want to say about the facts of DCM20.  We submit that the errors identified above in both cases establish that the function entrusted to the Assistant Director by the guidelines was not performed according to the “rules of reason” or the “canons of rationality” – to use two expressions that Chief Justice French used in Li at page 349, paragraphs 24 to 25.  The assessments were not:

reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power.

That treats the power here as being the power or function of assessing the request against the guidelines.  The result of that, we say, is that there has been an infringement of a legal limit on that task, and the task remains unperformed – it has not been lawfully determined in accordance with the instructions or directions issued by the Minister as to whether or not the request should be referred to the Minister for possible consideration.

I wanted to turn back to the statutory framework now, although some of the ground will have been covered in answers to earlier questions.  Your Honours will be well aware from the written submissions and earlier authorities that it is now established by decisions of this Court that the structure of decision‑making under section 351 and the other dispensing powers involves two distinct steps or decisions, each of which is taken by the Minister personally.

The relevant summary of those principles is in SZSSJ – which is tab 23 of volume 4 of the joint book of authorities, at page 200, paragraphs 53 to 55.  The two distinct steps are:   first, a personal “procedural decision”, to consider whether to exercise the power to intervene; the second is a personal substantive decision whether to exercise the power – that is, whether “to grant a visa or to lift the bar” in making a visa application.  It is also established that unless and until the:

Minister has made a personal procedural decision to consider whether to make a substantive decision –

the statute is not engaged, and that in those circumstances any process that is undertaken by the Department to assist the Minister to make such procedural decisions, including under instructions or directions issued by the Minister for that purpose, do not have a statutory basis.  Now, it is also implicit in that analysis that the Minister ‑ ‑ ‑

STEWARD J:   Is there not a third category at the end of paragraph 54, where the Minister does not make the personal procedural decision, but the Department are nonetheless doing things to assist?

MR HORAN:   I am sorry, your Honour.  I will just turn up the ‑ ‑ ‑ 

STEWARD J:   And doing them on instructions?

MR HORAN:   Yes.  The – I will not come back this, but one important point to note about that final sentence is – and this is explained by the form of the guidelines at the time, that the process that was undertaken by the Department on the Minister’s instructions there was explicitly described as:

to assist the Minister to make the procedural decision –

What I was attempting to say earlier was that although these two steps have been treated as a personal procedural decision to consider, which is then followed by, enlivens the substantive consideration, the procedural decision, the first step, can also be exercised negatively – not to consider – and, under the guidelines as in force at the time at SZSSJ, everything the Department did was directed towards that binary first step.  So ‑ ‑ ‑ 

GORDON J:   The binary first step being taken by the Minister?

MR HORAN:   Yes, and so ‑ ‑ ‑ 

GORDON J:   That is, it was advice and assistance to the Minister to enable the Minister to take or not to take that first step.

MR HORAN:   Yes.  And that comes within “to make the procedural decision”.  So, it could be – if it is a procedural decision to consider, that engages the statute.  If it is a personal decision not to consider, then the statute is not engaged.

STEWARD J:   There were certain types of decisions under the old guidelines that did not get referred to the Minister – repeat references.

MR HORAN:   Yes, I might need to ‑ ‑ ‑ 

STEWARD J:   Paragraph 7.

MR HORAN:   I think that is reflected in the Raikua decision – not through guidelines, but through the actual outcome of a personal decision by the Minister – but it may be that repeat requests are headed off at the pass, have always been headed off at the pass.

EDELMAN J:   Although they did have – there was a safety valve under the old guidelines for repeat considerations, which was also special and exceptional circumstances.

MR HORAN:   Yes.  I think the question is – and this might lie behind a sentence in the respondent’s submissions which I am, as yet, unable to fully understand the significance of, but where it is said that there is no material difference between the two versions of guidelines, in that the earlier version allowed request to be not referred.

Now, I am not sure what is meant by “not referred” – whether that is only referring to repeat requests, but, in any event, that safety valve runs into the practical problem that the Minister has no means of knowing or being aware of the fact that correspondence has been sent, addressed to him or her, and has been intercepted by the Department, and is in the bowels of the bureaucracy somewhere being determined but will never come to light unless somebody assesses it as meeting the guidelines criteria.

JAGOT J:   Even the repeat request on the 2009 guidelines, was that not subject to paragraph 16, the provision to the Minister of a summary?  That is how I initially read it, was that paragraph 16 qualified all matters that were not to be referred, including a repeat request that did not meet referral criteria.

MR HORAN:   Yes, I think the old guidelines ‑ I think as enforced at the time of SZSSJ are at page 68 of the DCM20 further materials.

JAGOT J:   That is right.

MR HORAN:   Paragraph 16 is dealing with initial requests.  Paragraph 17 states instructions to similar effect to the present guidelines, but I am not sure at the moment as I stand here whether it is clear that the existence of a request is notified to the Minister under that paragraph.

I should note in paragraph 47 – just ask your Honours to pick up footnote 44.  That is a reference to S10, at [46], [52] and [91].  I am going to take your Honours to those paragraphs when I come to S10 – but that is the footnote at the end of the sentence that talks about:

where the Department had not referred a case to the Minister, no statutory power had been engaged –

and their Honours refer to those particular – [46] and [52] are in the judgment of Chief Justice French and Justice Kiefel, and [91] is in the judgment of the plurality.  Then, at 52, having finished summarising S10, the joint judgment identifies three principles to be drawn from those two cases.  First, the two distinct decisions:

A procedural decision . . . and a substantive decision –

And:

The Minister has no obligation to make either decision –

which must mean the Minister has no obligation to consider exercising the power – that being the first decision:

Secondly, processes undertaken by the Department –

which is obviously what we are concerned with in this case:

to assist the Minister’s consideration . . . derive their character from what the Minister . . . has . . . done.

So, one then has two possibilities identified.  If the Minister has made the stage one decision, then the process is statutory – that is M61.  The second situation, dealt with in the last sentence:

if the Minister has not made a personal procedural decision . . . a process undertaken . . . has no statutory basis and does not attract a requirement to afford procedural fairness.

Now, one might pause to ask, well, why does it not attract the requirements of procedural fairness, and the possible answers, in our submission, are either that because it is non‑statutory, that is itself enough to mean no procedural fairness, because you cannot get procedural fairness by implication from the statute.  That might be the reason.  Or the other reason is that it has no effect on rights or interests – the non‑statutory process has no effect on rights or interests.

It must be one or other of those two possibilities, in my submission.  But one way or the other, the Court is very clear that the non‑statutory assessment process undertaken in circumstances where the Minister has not made a personal procedural decision does not attract procedural fairness and is not statutory.

GORDON J:   Can I give you a possible third category – and you may have already answered this, but I just make it clear, is that the language used in that last sentence says:

to assist the Minister to make the procedural decision –

So, a lot of the debate between the Bench and you has been about the limit of that and the extent to which the guidelines are assisting the Minister to make the procedural decision, as distinct from somebody else making the decision.

MR DONAGHUE:   I accept that that has been the subject of much discussion, and my answer is really to say that when your Honour put to me:

to assist the Minister to make the procedural decision –

the Court has, in paragraph 53, recognised that the Minister might never make that decision.  Might not even consider the first decision.  That is what paragraph 53 is saying.  So, in my submission, one is assisting the Minister in screening out the cases that the Minister does not wish to consider.  That is valuable to the Minister – very valuable, I am sure, if you are a Minister – to have screened out all of the matters that are not such as to warrant your consideration.  The third point, at paragraph 55, is that it is a factual question whether or not the Minister has made the decision in that case.

KIEFEL CJ:   Screening out, of course, can involve two different things, as we see from the guidelines from 2009, too.  It can involve an objective fact such as there being a repeat request, or it can involve, as has been put to you in argument already, an evaluative judgment which is the very thing that the Minister would substantively consider if one passed the procedural phase.

MR DONAGHUE:   A different evaluative judgment, in my submission.  So, yes, the Minister has an evaluative judgment as to the public interest under the statute, if you get there.  But, in my submission, it would be a strange and undesirable state of affairs if it is permissible for the Minister to have matters screened‑out on objective grounds but not on grounds that involve a closer consideration ‑ ‑ ‑

KIEFEL CJ:   Perhaps it is ‑ ‑ ‑

MR DONAGHUE:   ‑ ‑ ‑ of when the power might, actually, warrant exercise.

KIEFEL CJ:   Perhaps that is terminology – when “objective grounds” is too general.  Perhaps if we said, a “non‑statutory question” is answered by the departmental officers.

MR DONAGHUE:   That is certainly true, your Honour, but ‑ ‑ ‑

KIEFEL CJ:   That is simply a repeat request.  A repeat request, the Minister says, I will not look at it twice unless there is a significant change.

MR DONAGHUE:   If it would be open to the Minister to say if it is a repeat request, I will not look at it, then that is a harsher filter.

KIEFEL CJ:   All the departmental officer is answering is, yes, it is a repeat request ‑ ‑ ‑

MR DONAGHUE:   Yes.

KIEFEL CJ:   ‑ ‑ ‑ and, usually, there is no significant changes added to that because that is part of the guidelines.  But that is different from someone saying, I consider this does not have exceptional grounds relevant to the public interest, therefore it should not be considered.

MR DONAGHUE:   Your Honour, I accept that it is different but if your Honours were to hold, the Minister can be assisted by the Department in screening out repeat requests, then that will screen out a lot of cases.

KIEFEL CJ:   Yes.

MR DONAGHUE:   That might help the Minister, but it might screen out cases where some of those repeat requests do have substantial changes of circumstances that departmental officers would have said warranted it.

KIEFEL CJ:   And there is some error made.

MR DONAGHUE:   So, you end up with a harsher consequence for the applicant if the Minister has to adopt an unnuanced criteria that just says, get rid of all of the repeat requests, whereas, here, the Minister has done something ‑ ‑ ‑

KIEFEL CJ:   But we are only concerned with lawfulness here, not with an effect which follows a lawful plan.

EDELMAN J:   There is a difference between harsh consequences and whether something is the consideration of – or the liberty to exercise a consideration by the Minister himself or someone else.

MR DONAGHUE:   Your Honours, in the case of our hypothetical guideline that says no repeat requests go through, there is someone other than the Minister who is making an assessment that might strip out 80 or 90 per cent of the requests that would otherwise be going to the Minister and they never get there for the possible exercise of power.

In my submission, it is very difficult to see any legal reason why a Minister with personal power cannot say to a trusted official, I think it is too harsh; I do not want to exercise my personal power in a way that means that I will never consider repeat requests; I am not comfortable that that is an appropriate exercise of my public interest power so I want to go you some flexibility but I do not want to give you too much flexibility; I only want you to give me the really valuable repeat requests.

In my submission, there is no reason, as a matter of law, that a personal power – that someone with a personal power cannot say, help me in that way; help me by making an expert or evaluative judgment that allows me to mitigate the harshness of an otherwise objectively harsh rule.  And to say that is not to say that there has been some delegation of the function.  It is to say instead that the Minister is saying, I am setting for you criteria that operate, or bite upon, the subjective evaluation of an officer.

I see the time, but I am going to take your Honours early tomorrow morning to S10 and in particular its endorsement of Raikua in which that was exactly what happened.  So, Justice Lindgren was looking at a situation where the guidelines said, I only want to see this repeat request if you, the officer, think it is a unique and exceptional case, and Justice Lindgren said, that is just the Minister making an advance judgment that operates, or bites upon, the subjective judgment of another officer.  The Court in S10 refers to the particular passages in which Justice Lindgren said, that is fine.

So, this suggested distinction between an objective criteria and a guideline that operates on an evaluation by an officer is one that has come up in argument before – it came up in argument in Raikua – and it has not been accepted.  And, in my submission, just as it was not accepted then, your Honours should not accept it now.  It will produce results quite antithetical to good public administration.  If the judgment of public servants has to be stripped out of guidelines of this kind it would be, in my respectful submission, a very undesirable development in public law to have that consequence.

JAGOT J:   Is it legitimate – I note the time, I will just leave you with the thought overnight – when describing the personal procedural or stage one decision, it is always described as the decision to consider exercising the power to do something – lift the bar or whatever it is.  You are using the metaphor of screening or funnelling fairly routinely, which brings to mind a decision in one sense not to consider exercising the power.

Are you saying that that is – is it legitimate to say that somehow that is logically anterior to – that comes before what has been described as stage one, so it is actually slipping into the process at a stage before as the screening or funnelling and therefore that is why you get the distinction that in this case the Minister has not decided to consider exercising, and that therefore you are in this – and on your screening or funnelling in this non‑statutory anterior phase.

MR DONAGHUE:   Yes, your Honour.  That, in my submission, is what SZSSJ and S10 ‑ ‑ ‑

JAGOT J:   Are saying.

MR DONAGHUE:   ‑ ‑ ‑ are saying.  Because if you cannot come in at that anterior stage, then the practical result is that you always have to reach stage one.  You would always have to give consideration.  The only way you could ever not consider is by cutting it off before it gets to the consideration point – and the screening metaphor is not just mine, it actually comes from S10.

JAGOT J:   Sure – no.  And then that is the bite of the ministerial instructions about certain classes are not even to get to the Minister for the purpose of stage one.

MR DONAGHUE:   For the purpose of stage – expressly not to get there for the stage one.

JAGOT J:   Yes.

MR DONAGHUE:   Yes.

JAGOT J:   Paragraph 50.

MR DONAGHUE:   Precisely, your Honour.

JAGOT J:   Yes.

MR DONAGHUE:   I note the time.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  The Court adjourns to 9.15 am tomorrow for pronouncement of orders and otherwise to 9.45 am.

AT 4.20 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 20 OCTOBER 2022