Efm19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 321
•6 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 321
File number(s): SYG 2785 of 2019 Judgment of: JUDGE EGAN Date of judgment: 6 December 2021 Catchwords: MIGRATION – application by applicant for extension of time granted – application by applicant for discovery based upon unsubstantiated claims – public policy reasons why fishing expeditions ought not be granted – application unmeritorious – application dismissed – public interest immunity claim made by first respondent justified – orders accordingly. Legislation: Migration Act 1958 (Cth), ss 101, 103, 105, 107, 107A, 108, 109, 116, 117, 128, 129, 131, 477(2).
Evidence Act 1995 (Cth), s 130.
Cases cited: SZISCV v Minister for Immigration and Citizenship (2007) 158 FCR 260.
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213.
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of last submission/s: 1 December 2021 Date of hearing: 7 June 2021, 5 August 2021, 14 October 2021, 1 December 2021. Solicitor for the Applicant: D’Ambra Murphy Lawyers Counsel for the Applicant: Mr D. Hughes Solicitor for the First Respondent: Minter Ellison Counsel for the First Respondent: Ms R. Francois Second Respondent Submitting appearance save as to costs ORDERS
SYG 2785 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EFM19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
SECRETARY, DEPARTMENT OF HOME AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
6 DECEMBER 2021
IT IS ORDERED THAT:
1.Time be extended to 29 October 2019 for the Applicant to file the Originating Application for Review.
2.The Applicant’s Application in a Case filed on 31 March 2021 be dismissed.
3.Paragraph 3 of the First Respondent’s Application in a Case filed on 9 September 2019 be granted.
4.The Applicant shall file and serve any affidavit containing any additional evidence upon which the Applicant intends to rely on or before 4:00pm on 20 December 2021.
5.The First Respondent shall file and serve any affidavit in response on or before 4:00pm on 17 January 2022.
6.The Applicant shall file and serve written submissions in support of the application for review on or before 4:00pm on 31 January 2022.
7.The First Respondent shall file and serve written submissions in response on or before 4:00pm on 14 February 2022.
8.The matter be listed for final hearing at 9:45am AEST on 1 April 2022 in the Federal Circuit and Family Court of Australia sitting at Brisbane.
9.Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
10.The costs of and incidental to the Applicant’s Application in a Case and the First Respondent’s Application in a Case be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant was listed as a dependent on an XB-202 Global Humanitarian Visa application lodged on 16 December 2010 by the applicant’s brother. That application nominated the applicant as being one [first name omitted]. The application was refused on 30 May 2011.
The applicant subsequently arrived at Christmas Island as an unauthorised maritime arrival on 22 February 2012. The applicant applied for a Protection Visa (Class XA) on 29 June 2012. The application nominated the applicant as being one [second name omitted]. The visa application was granted on 25 September 2012.
On 19 September 2018, the applicant was granted a Resident Return (Subclass 155) visa which entitled the applicant to leave Australia, and later return to Australia at a time of his choosing. The visa expiry date was 19 September 2023, but the stay period of the visa was stated to be ‘Indefinite’.
On 13 March 2019 the applicant stated that he travelled to Pakistan to visit his family.
During the course of the hearing before the court on 1 December 2021, Counsel appearing on behalf of the applicant, Mr Hughes, conceded that the applicant had provided incorrect answers in his 2012 protection visa application, and that such action constituted a basis, under the Migration Act 1958 (Cth) (‘the Act’), for cancellation of any visa which had been granted to the applicant. That was so notwithstanding that the applicant had made application for Australian citizenship on 1 December 2016, and that at the time of the hearing before the court, a decision on such citizenship application was pending.
Sections 101, 103, 105, 107, 107A, 108, 109, 116, 117, 128 and 129 of the Act relevantly provided as follows:
“101 Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
103 Bogus documents not to be given etc.
A non‑citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided
105 Particulars of incorrect answers to be given
(1) If a non‑citizen becomes aware that:
(a) an answer given or provided in his or her application form; or
(b) an answer given in his or her passenger card; or
(c) information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2) Subsection (1) applies despite the grant of any visa.
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non‑compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non‑compliance:
(A) give reasons for the non‑compliance; and
(B) shows cause why the visa should not be cancelled; and
107APossible non‑compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non‑compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non‑compliances that occurred at any time, including non‑compliances in respect of any previous visa held by the person.
108 Decision about non‑compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or
(aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or
(b) its holder has not complied with a condition of the visa; or
(c) another person required to comply with a condition of the visa has not complied with that condition; or
(d) if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
117 When visa may be cancelled
(1) Subject to subsection (2), a visa held by a non‑citizen may be cancelled under subsection 116(1), (1AA), (1AB) or (1AC):
(a) before the non‑citizen enters Australia; or
(b) when the non‑citizen is in immigration clearance (see section 172); or
(c) when the non‑citizen leaves Australia; or
(d) while the non‑citizen is in the migration zone.
(2) A permanent visa cannot be cancelled under subsection 116(1) if the holder of the visa:
(a) is in the migration zone; and
(b) was immigration cleared on last entering Australia.
128 Cancellation of visas of people outside Australia
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non‑citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
129 Notice of cancellation
(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non‑disclosable information) because of which the ground was considered to exist; and
(c) inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; and
(d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
(e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
(2) The notice is to be given in the prescribed way.
(3) Failure to give notification of a decision does not affect the validity of the decision.”
Consideration of Factual Issues
On 12 April 2019, a visa cancellation officer of the Department gave notice to the applicant of the cancellation of the applicant’s Resident Return visa pursuant to the provisions of section 128 of the Act. [1] At the same time, the same visa cancellation officer of the Department provided reasons for the cancellation of the visa in a document entitled ‘Decision Record of Visa Cancellation’. [2]
[1] Exhibit 1 – Court Book (CB) – pp 81-88.
[2] CB 89-99.
At the time that the visa cancellation decision was made, the applicant was outside the territorial limits of Australia. As a consequence of the applicant being outside Australia, and by reason of the operation of s. 128 of the Act, the Minister was not first required to give a Notice Of Intention to Cancel the applicant’s visa (NOIC) prior to such cancellation.
On 17 April 2019, the applicant sent an email in response to his having been given notice of the cancellation of his visa. [3] The email relevantly provided as follows:
[3] CB 100.
“To whom it may concern
I [EFM19]
D.O.B [DOB omitted]
Client ID: 13558241499
Cancellation ID: C6ZT47VR5
File number: BCC2018/4657647
Unfortunately i received an email from the department of immigration and home affairs That my visa has been cancelled I came to pakistan to visit my family on 13/03/2019 and I received the email on 12/04/2019 that my visa has been canceled.
The department has giving me 28 days to respond while i am here I cannot do anything as i dont have any lawyer in Australia Is there any chance that the Australian high commission in islaamabad let me to travel to Australia to appeal my case
Kind regards [EFM19].”
Pursuant to the provisions of s. 477(1), the applicant had 35 days within which to review the decision to cancel his visa. The applicant failed to lodge an application for review within time. What was done on behalf of the applicant, seemingly as a forensic decision, was that a request for revocation of the cancellation decision was made by the applicant’s then solicitors. The request for revocation was contained in a detailed and lengthy submission of 116 pages. [4] Attached to the submission was a statement of the applicant in which the applicant admitted that it was wrong of him to lie about his identity when making application for the protection visa, and that he knew that it was wrong for him to have done so. [5] At paragraph 13 of the applicant’s statement, the applicant said that it was because he feared persecution in Afghanistan that he had not applied for an Afghan passport. The applicant stated that he had obtained ‘Australian Travel Documents’ which had enabled him to get a visa and visit his family in Pakistan, presumably without his Afghani citizenship being discovered. [6] There was evidence before the Court that the applicant had travelled to Pakistan from Australia on at least two occasions prior to his departure from Australia on 13 March 2019.
[4] CB 106-221.
[5] Paragraph 8 of Statement at CB 223.
[6] Paragraph 13 at CB 223.
Also attached to the request for revocation of cancellation of the visa decision was a report from a Professor of Diplomacy from the Australian National University which canvassed the treatment of Shia Hazaras when returned to Afghanistan.
On 24 September 2019, the applicant was provided with a ‘Notification of Decision Not to Revoke Visa Cancellation’ under s. 131 of the Act, [7] and a ‘Record of Decision of Revocation of Cancellation’. [8]
[7] CB 245-246.
[8] CB 247-261.
The applicant filed an Originating Application for Review of the non-revocation decision within the 35 day period allowed for review of such a decision. At the hearing before the Court, Counsel on behalf of the first respondent conceded that should the applicant’s application for review of the non-revocation decision be successful, the practical effect of such decision would be the same as would be the case in the event of a successful application for review of the visa cancellation decision – namely, that the matter would be remitted back to the Department for re-consideration and decision.
In circumstances where the applicant seeks an order that the time for the making of the application for review of the cancellation decision be extended to the time of the filing of the Originating Application for Review, (such application was filed some five (5) months out of time in respect of the cancellation decision) and further, in circumstances where for most of that time the Department was considering the question as to whether the application for revocation of the cancellation decision ought to be granted or not, the Court sees little utility in not granting the application for extension of time in respect of the cancellation decision. The Court is further minded to exercise its discretion in favour of the applicant, in that regard, for the following reasons:
(a)As was conceded by Counsel for the first respondent, there was no demonstrated prejudice to the first respondent should the application for extension be granted.
(b)The applicant was in Pakistan at the time of the giving of notice to him of the cancellation decision. Notwithstanding that the applicant’s solicitors were able to make extensive submissions on behalf of the applicant, there would no doubt have been difficulties experienced by him in providing full and timely instructions to such solicitors.
(c)There being no evidence to the contrary, the applicant is a person of limited means who deposed that he had been unable to obtain employment in Pakistan since he arrived there in 2019.
(d)At an impressionistic level, and without deciding finally on the issue, it is at least arguable that the cancellation decision was made in bad faith. In Part C of the ‘Decision Record of Visa Cancellation’ dated 12 April 2019, under the sub-heading ‘Section 128(a)(ii) of the Migration Act 1958’, it was said as follows:
“Having full regard to all of the circumstances of the case, I am satisfied it is appropriate to cancel the visa in accordance with Subdivision F of the Migration Act 1958.
The reasons I consider it appropriate to cancel without notice under section 128 of the Migration Act 1958 are that there is a real risk the visa holder, after being served with a Notice of Intention to Consider Cancellation, would return onshore. In the result of a visa cancellation outcome, this would result in possible detention and removal from Australia as well as result in a range of financial and time implications for the visa holder.”
The Court considers that further argument at a final hearing is required on the question as to whether or not the visa cancellation officer’s stated reason for considering it appropriate to cancel the visa without notice to the applicant was evidence of that person acting in good faith, or in bad faith. Inferences are capable of being drawn in both respects. Further, even if the Court was minded to find at any final hearing that the officer had acted in bad faith, the Court is of the view that further submissions on the question of materiality would be required in such event.
For the above reasons, the application for extension of time made on behalf of the applicant pursuant to the provisions of s.477(2) of the Act is granted in respect of the cancellation decision made on 12 April 2019. The Court noted that Counsel for the first respondent had conceded that the first respondent’s opposition to the making of an order extending time for the bringing of an application for review was opposed not in respect of the cancellation decision simpliciter, but rather was opposed in respect of what was characterised in the submissions made on behalf of the applicant as the ‘Delay Decision’. To the extent that the Court has granted such application for extension of time, questions as to the Court’s jurisdiction to hear and determine other issues on an interlocutory basis do not arise. [9]
[9] SZISCV v Minister for Immigration and Citizenship (2007) 158 FCR 260 at [45] – [47] per Buchanan J.
The Asserted ‘Delay Decision’ and the Application by the Applicant for Production of Documents
On 31 March 2021, the applicant filed an application in a case which sought the following orders:
“1.The respondents are within 14 days to produce to the applicant's lawyers, on such terms if any as the Court sees fit, an unredacted copy of "The Project Chameleon Biographical report" referred to in the email dated 23 April 2020 from Liam Dennis to Lisa D' Ambra.
2.The respondents are within 14 days to produce to the applicant the documents identified in paragraphs 10 - 13 (inclusive) of the notice to produce dated 12 December 2019 served by the applicant on the respondents.
3.The Respondents to file and serve within 14 days an affidavit justifying the basis for any claim of public interest immunity or litigation privilege over any documents that are not produced by reason of such a claim.
4.The respondents are within 14 days to file and serve on the applicant a response containing a response to each of the applicant's contentions contained within the application.
5. Such further orders or directions as the Court sees fit.
6. The respondents are to pay the applicant's costs of this application in a case.”
The orders sought in paragraphs 1 and 2 of the applicant’s application in a case are prefaced upon the proposition that employees in the first respondent’s department deliberately delayed making the cancellation decision until after the time that the applicant had departed Australia. It was submitted on behalf of the applicant that it ought to be inferred from the evidence before the Court that there was such deliberate delay.
The applicant made written submissions in support of the allegation of deliberate delay as follows: [10]
[10] Paragraphs 28 – 34 of applicants’ written submissions filed on 29 November 2021.
“28.The applicant is a citizen of Afghanistan. He was granted a protection visa in 2012, and a resident return visa in September 2018. See SOC [23], [25].
29.These proceedings were commenced urgently before Judge Dowdy, as duty judge, in October 2019. The circumstance of urgency was that the applicant’s resident return visa had been cancelled without notice while he was visiting family in Pakistan. He now remains illegally in Pakistan as a consequence of that cancellation, in circumstances where his Pakistani tourist visa has expired: D’Ambra [11].
30.The relevant chronology is:
(a) on 16 April 2019, the applicant applied for the resident return visa: SCB 98.
(b) on 7 September 2018, Michael Smithson, an officer of the Department of Home Affairs, requested that a facial image comparison report be carried out in respect of the applicant: SCB 107. As will become clear, it is evident that the request was made against the background that Mr Smithson believed that the applicant had given incorrect information in his application for a protection visa;
(c) on 19 September 2018, the applicant was granted a resident return visa;
(d) on 26 September 2018, Mr Smithson received a facial image report that appeared to confirm his suspicion that the applicant had given incorrect information in his application for a protection visa: SCB 107, SOC [27];
(e) on 2 October 2018, Mr Mark-Andrew Baily, also an officer of the Department, sent a “cancellation referral” to the “General Cancellations Network” in respect of the applicant: SCB 102 – 105. The referral included reasons for the referral (item 5), which was the incorrect information identified by the facial comparison report: SOC [29];
(f) prior to 7 November 2018, the applicant sought from DFAT a travel document: SCB 95.
(g)on 13 March 2019, the applicant departed Australia for Pakistan: SOC: SOC [41];
(h) on 12 April 2019, the applicant’s visa was cancelled without notice under s 128 of the Migration Act 1958: SOC [42].
31. There was a delay of 5 months between the cancellation referral and the cancellation decision. In the meantime, the applicant left the country in March 2019 (which the Government knew he was considering doing). The consequence of the applicant being out of the country at the time of cancellation was that the Act did not require that he be given notice and an opportunity to be heard. It also meant that Australia would not owe the applicant protection obligations, which would be a factor relevant to the cancellation discretion had it been exercised while the applicant was in Australia.
32. The applicant contends that a decision was made by one or more officers of the Department to delay consideration of the applicant’s visa until he had left the country (Delay Decision). Why this is so is set out in considerable detail in the SoC at SOC [35] – [48].
33.The applicant contends that the Delay Decision was made for an improper purpose, and taints the two decisions challenged – the cancellation decision, and the non-revocation decision. See Ground 3 and Ground 6.
34.The documents sought are relevant to establishing that the Delay Decision occurred, and the reasons for it.”
The applicant also relied upon the allegations as pleaded in paragraphs 35-48 of the Statement of Claim. Paragraphs 28-48 of the Statement of Claim were relevantly as follows:
“28.In the premises of paragraphs 4, and 23 to 25, on and from October 2018, the Integrated Records System recorded the following matters in respect of the applicant:
(a) the applicant had been found to be a refugee and a person to whom Australia owed international non-refoulement obligations;
(b) the applicant had, whilst holding a protection visa, travel led to Pakistan for the purpose of visiting family in the periods:
(i) 2 August 2013 to 30 December 2013;
(ii) 25 July 2015 to 21 October 2015; and
(iii) 12 March 2017 to 10 June 2017;
(c) the applicant had on or about 16 April 2018 applied for of a Resident Return Visa; and
(d) the applicant had, on or about 19 September 2018 been granted a resident return visa.
The applicant is referred to the GCN
29. On or about 2 October 2018, an officer of the Department created a GCN Referral in respect of the applicant, and sent it to the GCN.
Particulars
The referral and its attachments are at SCB pages 102 - 116 (hereafter the GCN Referral).
30. The GCN Referral:
(a) identified that a reason existed why the applicant's visa might be cancelled, namely that he had provided incorrect information or a bogus document to the Department (item 2);
(b) identified that a Priority Indicator existed in respect of the cancellation of the applicant's visa, being that he had a citizenship application pending (item 4); and
(c) identified that the applicant had relatives living in Pakistan (item 5).
31. In the premises of paragraphs 14 and 15, on or about 2 October 20 18, a GCN Officer received the GCN Referral in respect of the applicant.
32. In the premises of paragraphs 14, 15 and 3 1, on or shortly after 2 October 2018, a GCN Officer (hereafter, the GCN Officer):
(a) read the GCN Referral in respect of the applicant; and
(b) reviewed the Integrated Record System in respect of the applicant.
33. In the premises of paragraphs 28 and 32, at a time on or shortly after 2 October 2018, the GCN Officer:
(a) knew the matters pleaded in paragraph 28 hereof (applicant had been found to be a refugee, had previously visited relatives offshore and had recently obtained a resident return visa); and
(b) knew that there was a priority ind icator for the GCN Referral, and thus that the referral should be allocated to a delegate, and then determined, with a priority over other GCN Referrals;
(c)knew the matters pleaded in paragraph 17 hereof ( operation of s 109, 116 and 128);
(d) knew the matters pleaded in paragraph 18 hereof (the power to cancel a visa without notice under s 128 is intended to be used in circumstances where there is a risk that the visa-holder would respond to the notice by travelling to Australian); and
(e) knew the matters pleaded in paragraph 19 hereof (policy required consideration of protection obligations to visa-holder unless the person is offshore).
34. To the extent that any further GCN Officers were given responsibility for carrying out the Timing Function or the Allocation Function in respect of the GCN Referral, each of those GCN Officers did the things pleaded in paragraph 32 and had the knowledge pleaded at paragraph 33 hereof.
The Allocation to a Delegate
35. At a time unknown to the applicant between 2 October 2018 and 12 April 2019, the GCN Officer, or a GCN Officer later given responsibil ity for carrying out the Timing Function or the Allocation Function, al located the GCN Referral to a Cancellation Officer with position number 60023945 (Delegate).
Particulars
This is to be inferred from the fact that the GCN Referral was made, and the applicant's visa was later cancelled by the Delegate on 1 April 2019.
36. At a time shortly after the GCN Referral was allocated to the Delegate, the Delegate:
(a) read the GCN Referral; and
(b) reviewed the Integrated Record System in respect of the applicant; and
(c) thereby obtained the knowledge pleaded at paragraph 33 hereof.
Knowledge of the GCN Officers and the Delegate
37. In the premises of paragraphs 33, 34 and 35 hereof, in the period between 2 October 2018 and 12 April 2019:
(a) each GCN Officer allocated responsibility for carrying out the Timing Function and Allocation Function in respect of the GCN Referral had the knowledge pleaded at paragraph 33; and
(b) the Delegate, upon allocation of the Referral or shortly thereafter, had the knowledge pleaded at paragraph 33.
38. In the premises of paragraph 37, it was known to each (if any) further GCN Officer allocated responsibility for carrying out the Timing Function and Allocation Function in respect of the GCN Referral, and the Delegate, that:
(a) the GCN Referral should be considered and determined in priority to other GCN Referrals;
(b) if the applicant's residence return visa were cancelled whilst the applicant was within the territory of Australia, it would be open to the applicant to make fresh claims for protection and:
(i) the applicant would likely not be removed from Australia while those claims were considered; and
(ii) if the applicant's claims were accepted, the applicant would likely be granted a visa to remain in Australia, or alternatively it would be unlikely that the applicant would be returned to Afghanistan or to any place where he did not have a right to reside;
(c) if the applicant's residence return visa were cancelled under s 128 whilst the applicant was offshore, it would not be open to the applicant to claim that Australia owed him international non-refoulement obligations.
39.In the further premises of paragraph 37, it was known to each GCN Officer allocated responsibility for carrying out the Timing Function and Allocation Function in respect of the GCN Referral, and the Delegate, the applicant was considering, or might be considering, a further trip outside Australia.
The applicant leaves Australia and his visa is cancelled
40.After receipt of the resident return visa on or about 19 September 2018, the applicant remained in Australia until 13 March 2019. During this period, the Minister (or any delegate) sent no notice to the applicant in connection with a possible exercise of power under s 109 or 116 of the Act.
41. On 13 March 2019 the applicant departed Australia for Pakistan.
42. 12 April 2019, the Delegate decided to exercise his power under s 128 of the Act immediately to cancel the applicant's resident return visa (Cancellation Decision).
43. When considering whether to make the Cancellation Decision, the Delegate, considered that it was appropriate to cancel the applicant's visa whilst he was offshore under s 128 because the Delegate considered that there was a real risk that the applicant would, after being served with a Notice of Intention to Consider Cancellation, return to Australia.
Particulars
Decision record at Court Book p 96.
44. On 7 May 2019, the applicant made representations why the Cancellation Decision should be revoked.
45. On 24 September 2019, a delegate of the Minister decided not to exercise the power under s 131 of the Act to revoke the Cancellation (Non-Revocation Decision).
The Delay Decision
46. In the premises of paragraphs 37 to 43, at a time unknown to the applicant but sometime between about October 2018 and about March 2018, one or more of:
(a) the GCN Officer, and any further GCN Officers identified in paragraph 37; or
(b) the Delegate,
when considering whether any cancellation decision should be made or considered in respect of the GCN Referral, decided to delay, until the applicant left Australia, consideration of whether to exercise any power to cancel the applicant's visa (Delay Decision).
47.The Delay Decision was made for the purpose of allowing circumstances to arise, by the applicant leaving Australia, such that the applicant's visa could be cancelled without notice, and so that the applicant could not return to Australia prior to the cancellation of his visa, and for the purpose of frustrating or undermining the efficacy of the protection enjoyed by the applicant from Australia under its international obligations.
Particulars to paragraphs 46 and 47
(a) That a decision to delay was made is to inferred from the fact that, despite the identification of a priority indicator in relation to the GCN Referral on 2 October 2018, the cancelation decision was not made until 16 April 2019. A decision to delay is also to be inferred from the fact that the decision occurred more than 5 months after the GCN Referral, regardless of the priority indication.
(b) The purpose of the decision to delay is to be inferred from the knowledge, as pleaded in paragraphs 3 7 to 39 hereof, of each GCN Officer and the Delegate that:
(i) the applicant was a person found to be owed protection obligations by Australia;
(ii) the applicant had previously visited family in Pakistan while holding a protection visa;
(iii) the applicant had recently obtained a resident return visa, and so might be contemplating a further trip abroad;
(iv) if the applicant were onshore, consideration of cancelling his visa would require consideration of Australia's non-refoulement obligations to the applicant;
(v) if the applicant were offshore, his visa could be cancelled without notice and no consideration would need to be given to Australia's non-refoulement obligations; and
(vi) the policy of the Department was to cancel a visa without notice if there was a risk that the visa-holder might return to Australia on receipt of the notice.
48.On the proper construction of sections 116 and 128 of the Act, the purpose pleaded in paragraph 47 was not a proper purpose for the consideration of whether to commence consideration of cancellation under s 116 or a 128 of the Act.”
As is apparent from a reading of the applicant’s written submissions and the applicant’s pleadings, the adverse inferences which the applicant asks the Court to draw are based upon a supposition that because certain facts were known by officers of the Minister concerning the progress of the departmental investigation as to whether or not the applicant had provided false information concerning his identity in his protection visa application, that knowledge was used to manufacture a situation whereby the applicant was not required to be given prior notice of the Minister’s intention to cancel his visa. It was clearly asserted that inferences ought to be drawn that unidentified departmental officers had decided to delay the making of the cancellation decision until after the applicant had departed Australia (‘the Delay Decision’).
By an email dated 2 October 2018 sent by one Mark-Andrew Bailey to the “General Cancellations Network” within the Department, a Form which recorded relevant information was attached. In such Form, entitled “General Cancellations Network (GCN) Referral Form”, the words “Citizenship application pending” were inserted next to the sub-heading entitled “3. Select an indicator if this referral requires priority consideration”. It was submitted on behalf of the applicant that the insertion of the words “Citizenship application pending” was not only evidence that the Department knew that a citizenship application was pending, and considered such fact worthy of priority recognition, but also that because of such knowledge and appreciation, no action was deliberately taken to cancel the applicant’s visa until after the applicant left Australia to travel to Pakistan.
There is no direct evidence that any person intentionally delayed making any cancellation decision, nor is there any evidence that anyone within the Department could have known that the applicant had any intention to ever again depart Australia at the time of the sending of the 2 October 2018 email. Neither is there any evidence as to what stage the applicant’s citizenship application had reached at such time. Such are but examples of how the applicant’s claims are clearly based upon conjecture. It is in that context that the applicant’s application for orders requiring the production of documents must be viewed.
The order sought in paragraph 1 of the Application in a Case filed on 31 March 2021 resulted in the Minister agreeing to file an affidavit justifying a claim of public interest immunity in respect of the redacted portions of the ‘The Project Chameleon Biographical Report’. The claim for public interest immunity had previously been set out in an email of 23 April 2020 from one Liam Dennis to the applicant’s solicitor Ms D’Ambra, which relevantly was as follows: [11]
“… Please find attached the redacted Project Chameleon Biographical report requested at item 1 of the Notice to Produce dated 12 December 2019.
The first respondent claims public interest immunity over the redacted portion of the Project Chameleon Biographical report. That information has been redacted because it could reveal methodology used by the Department to determine whether visa holders have provided false information to the Department in support of their visa applications. If this methodology was widely known it could impair the Department's ability to utilize this methodology in the future to detect fraudulent claims. This in turn would be contrary to Australia's public interest and would prejudice the effectiveness of the methods and procedures that the Department may rely on in assessing visa applications.
…”
[11] Annexure H to Affidavit of Ms D’Ambra filed on 31 March 2021.
The first respondent waived privilege to the limited extent that the Court could itself examine the contents of the relevant Project Chameleon Biographical Report. The Court has had the opportunity to read, and have regard to, the contents of an un-redacted copy of the Project Chameleon Biographical Report relating to the applicant. The Court is of the view that the claim of public interest immunity, as set out in the 23 April 2020 email, is entirely justified. In the interests of the due administration of justice, and for the purpose of ensuring the ongoing investigative effectiveness of the methods and procedures of the Department, the Court considers that disclosure of the contents of the Report would be contrary to Australia’s public interest. Should the contents of the redacted sections of Confidential Exhibit JA-3 be disclosed, methodology used by the Department to determine whether visa holders have provided false information to the Department in support of their visa applications could be compromised. Such disclosure may jeopardise the Department’s functions in enforcing the provisions of the Act, which carries a strong element of public interest. The Court finds that the relative public interest of protecting such Departmental methodologies outweighs the importance of disclosing the redactions to the applicant for the purpose of assisting the applicant establishing his claims. [12] It ought to be noted that the Court caused the report to be reinserted into its envelope immediately after it had been read. The envelope was stapled and taped at its top to prevent re-opening except by a Judge of this Court if so required. The order sought in paragraph 1 of the Applicant’s Application in a Case is refused.
[12] Evidence Act 1995 (Cth), s. 130(4), 5(a).
The order sought in paragraph 2 of the Applicant’s Application in a Case is related to the documents identified in paragraphs 10 – 13 inclusive of the Notice to Produce, that being annexure A to the affidavit of Ms D’Ambra filed on 31 March 2021. The documents sought to be the subject of production orders were identified in those paragraphs, which relevantly were as follows:
“10. All departmental policies or guidelines in force as at 2 October 2018 relating to:
a) the circumstances in which a General Cancellations Network (GCN) Referral Form should be completed;
b) the manner in. which a General Cancellations Network (GCN) Referral Form should be engrossed and the information that should be provided with such a form;
11. All departmental policies or guidelines in force in the period 2 October 2018 to 13 March 2019 relating to:
a) the constitution and operation of the General Cancellations Network;
b) the manner in which a General Cancellations Network (GCN) Referral Form is considered;
c) the considerations to be applied to a decision to consider visa cancellation for an individual referred for possible cancellation by a General Cancellations Network (GCN) Referral Form
12. Any departmental policies or guidelines that were actually considered or applied by one or more officers of the Department in respect of:
a) the GCN Referral Form produced by the Department on 9 December 2019 in these proceedings;
b) whether and when to proceed to a visa cancellation consideration for the applicant.
13. Any document recording reasons why visa cancellation was not considered for the applicant in the period 2 October 2018 to 13 March 2019.”
The application in paragraph 2 was without merit for the reasons advanced on behalf of the first respondent at paragraphs 24 – 25 of the written submissions filed on behalf of the respondent on 25 November 2021. Those submissions were adopted as correct by the Court. The submissions were relevantly as follows:
“24. In relation to prayer 2 of the Application:
(a) the Minister notes there is nothing to produce in response to paragraph 13 of the Notice to Produce dated 12 December 2019; and
(b) does not consent to production in response to paragraphs 10 to 12 of the Notice to Produce as:
(i) paragraphs 10 to 11 appear to effectively seek discovery of material with unknown relevance and which will require difficult judgments about the possible relationship between various policy documents and the matters identified in paragraphs 10 and 11; and
(ii) paragraph 12 effectively seeks to interrogate departmental officers about matters not apparent on the face of the relevant decisions (if any) or documents, where it is unlikely the relevant officer has any recall other than that recorded in a written document and again, where the relevance of the policy documents is not apparent.
25.The applicant has not identified how any of the policy documents sought by him are relevant to his application under section 477(2) of the Act or to his judicial review applications where the decisions made plainly list the various matters the decision-maker took into account. Such policy documents are not relevant on their face and paragraphs 10 to 12 of the Notice to Produce appear to be a fishing expedition: cf Commissioner of Police (NSW) v Tuxford [2002] NSWCA 139 at [20]; Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 1137 at [29]; Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102.”
The Court was not persuaded that any inference which might on one view support a claim that there was an intentional ‘Delay Decision’ justified the production of the documents sought by the applicant. There are sound public policy reasons why applications for the production of documents in circumstances such as the present ought to be rejected outright. The very notion that the making of unsubstantiated claims of misfeasance in office by a public servant justifies the making of wide-ranging orders for the production of documents should be rejected.
The Court otherwise finds that the orders sought in the Applicant’s Application in a Case are without merit, unjustified, and would serve no valid purpose. The order sought in paragraph 2 of the Applicant’s Application in a Case is refused.
By reason of the making of the orders in respect paragraphs 1 and 2 of the Applicant’s Application in a Case, the Court necessarily refuses to make the orders as sought in paragraphs 3 and 4 of the Applicant’s Application in a Case.
Having extended time to the Applicant to file the Originating Application for Review of the Cancellation Decision, the applicant is not precluded from advancing any appropriate argument in respect of the purported Delay Decision at the time of the final hearing of the application for review. The foreshadowed basis for doing so advanced by Counsel on behalf of the applicant was on unreasonableness grounds relevant to the exercise, or non-exercise, of non-statutory power. Questions as to whether such power was asserted to be an executive power or not, and the categorisation of such power if not an exercise of executive power, will need to be addressed at the final hearing. In that regard, the Court has had regard to the decision of the Full Court of the Federal Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 and particularly at paragraphs [57] – [78] inclusive per Griffiths J where it was said:
“[57]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).
[58]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
[59]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.
[60]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.
[61]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.
[62]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?
[63]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”.
[64]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.
[65]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
[66]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
[67]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.
[68]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.
[69]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
[70]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.
[71]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).
[72]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
[73]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.
[74]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.
[75]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.
[76]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).
[77] 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.
[78]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.”
Further, at [89] – [96] of Davis (per Griffths J), it was said as follows:
[89]Finally, it is important to emphasise that in the current appeals the first respondent did not dispute that either appellant had standing to bring the judicial review applications which challenged the relevant administrative action on the ground of legal unreasonableness. Necessarily, therefore, the first respondent has accepted that the appellants are persons who are aggrieved in the relevant sense in order to seek the particular judicial review relief which they did (see generally Plaintiff S10 at [68] per Gummow, Hayne, Crennan and Bell JJ).
(v) The role of Departmental officers in applying the Guidelines
[90]The first respondent contended that it was wrong to characterise a Departmental officer’s non-referral of a request as involving a “constructive failure to exercise jurisdiction”. That is because “jurisdictional error” is an expression which describes a material failure to comply with one or more statutory preconditions or conditions, resulting in a decision lacking the necessary characteristics for it to be given force and effect by a statute (citing Hossain at [24] per Kiefel CJ, Gageler and Keane JJ).
[91]There is some force in this submission but, ultimately, the issue is one of semantics. The submission would apply equally to judicial review of a prerogative power, but the Solicitor-General accepted that some such powers were susceptible to judicial review on at least some grounds. The remedies available under s 39B of the Judiciary Act 1903 (Cth) are not confined to jurisdictional errors. If the assessments here are amenable to judicial review on the ground of legal unreasonableness, as I believe to be the case, it is not necessary to use the language of jurisdictional error in granting appropriate relief in a suitable case.
[92]The first respondent submitted that the work done by Departmental officers simply “involves the acquisition of information and categorisation of requests or cases”, referring to what French CJ and Kiefel J said in Plaintiff S10 at [51]. They contended that this work “involves mere advice or assistance to the Minister anterior to the administration of the Act, and by reference to the Guidelines which do not have the status of law” (referring to what the plurality said in Plaintiff S10 at [99]).
[93]These submissions should not accepted. They are predicated on an incorrect assumption that the 2016 Guidelines relevant to these appeals are in substantially similar terms to the 2009 Guidelines considered in Plaintiff S10. As mentioned above, the 2016 Guidelines require Departmental officers to do much more than simply acquire information, categorise requests or provide advice to the Minister. In contrast with the 2009 Guidelines, under the 2016 Guidelines a Departmental officer is instructed to review all requests for Ministerial intervention and to reject, without notifying the Minister, any request which the officer considers to be of a kind which does not satisfy the criteria in the 2016 Guidelines for referring a request to the Minister. Significantly, a Departmental officer who assesses a request and considers that under the 2016 Guidelines, the request fails to meet the relevant criteria, is instructed to reject the request. In contrast, under the 2009 Guidelines, where an officer assessed a request as not being suitable for referral to the Minister, the officer was required to inform the Minister that the request had been denied. Under those previous guidelines the Minister was able to take a different view to that of the officer. The effect of the 2016 Guidelines in these two appeals is to have Departmental officers responsible for screening out requests which do not meet the relevant criteria in the 2016 Guidelines and no subsequent opportunity is provided in those guidelines for the Minister to take a different view on whether or not a particular request should be considered.
The 2009 Guidelines as considered in Plaintiff S10
[94]These 2009 Guidelines applied to ministerial intervention requests received on or after 14 September 2009. One of the stated purposes of those guidelines was to inform Departmental officers when to refer a case to the Minister so that he or she could decide whether to consider exercising such powers in the public interest. The 2009 Guidelines applied to the ministerial intervention powers in ss 345, 351, 391, 417, 454 and 501J of the Act. Sections 9 to 11 comprised the Minister’s instructions as to which cases were to be brought to his or her attention. Those sections dealt with the “public interest”, referral by a review tribunal and unique or exceptional circumstances respectively. Sections 13 to 17 comprised the Minister’s instructions as to how cases would be brought to his or her attention. Section 16 dealt with the topic of initial requests for the exercise of public interest powers. It should be set out in full, noting in particular the instruction to Departmental officers that where a case fell outside the ambit of ss 9 to 11 of the 2009 Guidelines, Departmental officers were instructed to “bring the case to my attention through a short summary of the issues in schedule format, so that I may indicate whether I wish to consider the exercise of my power” (emphasis added in text):
16 INITIAL REQUESTS FOR THE EXERCISE OF PUBLIC INTEREST POWERS
If a request for me to exercise my public interest powers in respect of a person is received and I or another Minister has not previously considered the exercise of the public interest powers (whether in a schedule or as a submission) in respect of that person (whether in respect of the person’s present or any previous visa application) an officer is to assess that person’s circumstances against these guidelines and:
•for cases which fall within the ambit of section 9 Public interest, section 10 Referral by a review tribunal and section 11 Unique or exceptional circumstances of these guidelines, bring the case to my attention in a submission so that I may consider exercising my power or
•for cases falling outside the ambit of section 9 Public interest, or cases which fall outside the ambit of both section 10 Referral by a review tribunal and section 11 Unique or exceptional circumstances of these guidelines, bring the case to my attention through a short summary of the issues in schedule format, so that I may indicate whether I wish to consider the exercise of my power.
If I do not wish to exercise, or consider exercising my power, the department should reply on my behalf that I do not wish to exercise my power.
Where a case is in the process of being litigated, the following approach should be adopted depending on the circumstances - where:
•a visa applicant has started litigation, and it is a repeat request for Ministerial intervention, I generally consider it inappropriate to consider as specified in section 7 Cases which may be finalised without further assessment
•there is a Bridging E visa refusal, the case officer may use their discretion to process the request if it falls within these guidelines.
In all circumstances, where a case is referred to me and is in the process of being litigated, case officers are to advise me of the status of the case.
The 2016 Guidelines
[95]As noted above, the 2016 Guidelines which are relevant to both these appeals are those which were signed on 11 March 2016 and reissued with a slight change of name on 29 March 2016. The 2016 Guidelines related to the ministerial intervention powers under ss 351, 417 and 501J. One of the stated purposes of these guidelines was to “confirm that if a case does not meet these guidelines, I do not wish to consider intervening in that case” (s 1). Section 4 of the 2016 Guidelines described cases that should be brought to the Minister’s attention. Sections 6 and 7 dealt with cases that should not be brought to the Minister’s attention, which included cases that did not meet the 2016 Guidelines and were described in s 7 as “inappropriate” for the Minister to consider. The 2016 Guidelines instructed the Department that it should finalise these cases without referral to the Minister and advise the affected person accordingly. Significantly, the 2016 Guidelines did not include a provision similar to that in s 16 of the 2009 Guidelines considered in Plaintiff S10. Rather, the effect of the 2016 Guidelines was to devolve to Departmental officers’ sole responsibility for rejecting a ministerial intervention request where it did not meet the 2016 Guidelines and without any notification being given to the Minister of such rejections.
[96]For all these reasons, I reject the first respondent’s contention that Jabbour is wrong in concluding that a decision made by a Departmental officer in purported compliance with the 2016 Guidelines is amenable to judicial review for legal unreasonableness. That is not to say, however, that all Commonwealth public administration is amenable to judicial review on that ground. Such a sweeping proposition must be rejected having regard to Brennan J’s oft-cited statements in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36.”
It was not in dispute that there was a visa cancellation decision made on 12 April 2019 and a non-revocation decision relating to the visa cancellation on 24 September 2019. Allegations in respect of an alleged delaying of the making of the cancellation decision are able to be fully canvassed and argued, at the appropriate time and in an appropriate manner, without the production of documents in a fishing expedition context.
For the reasons advanced above, the applicant’s Application in a Case filed on 31 March 2021 is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 6 December 2021
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