ELM21 v Minister for Home Affairs
[2023] FedCFamC2G 91
Federal Circuit and Family Court of Australia
(DIVISION 2)
ELM21 v Minister for Home Affairs [2023] FedCFamC2G 91
File number(s): SYG 15 of 2023 Judgment of: JUDGE GIVEN Date of judgment: 14 February 2023 Catchwords: MIGRATION – personal procedural decision purportedly made by Minister – whether purported decision capable of inference from email – Notice of Objection to Competency – no migration decision – no jurisdiction – transfer not available where jurisdiction absent
PRACTICE AND PROCEDURE – expedition sought on the basis of applicant’s potential self-harm – inappropriateness of parties conducting litigation by correspondence with the Court
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 153
Federal Court Act 1976 (Cth) s 32AD
Migration Act 1958 (Cth) ss 46A, 46B, 48B, 195A, 474, 476, 486E, 486F
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 8.02, 27.06
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 22.7
Cases cited: AOA16 v Minister for Immigration and Border Protection [2017] FCCA 189
AOA16 v Minister for Immigration & Border Protection [2017] FCA 697
Barkla v Allianz Australia Insurance Ltd [2018] FCA 2070
CLA15 v Minister for Home Affairs [2019] FCA 262
Cribb (Liquidator) v Jackson [2019] FCA 1632
Marsh v Marsh[2013] FamCA 445
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Plaintiff M61/2010Ev Commonwealth (2010) 272 ALR 14
Plaintiff S10/2011v Ministerfor Immigration and Citizenship (2012) 290 ALR 616
Trevi & Trevi [2016] FamCA 898
XAD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1550
Zurich Australian Insurance Ltd v Atradius Credito Y Caucion SA De Seguros Y Reaseguros [2022] FCA 709
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 10 February 2023 Place: Sydney Solicitor for the Applicant: Mr D Taylor of Sydney West Legal and Migration Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 15 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ELM21
ApplicantAND: MINISTER FOR HOME AFFAIRS
First RespondentSECRETARY, DEPARTMENT OF HOME AFFAIRS
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
14 February 2023
THE COURT ORDERS THAT:
1.The application filed on 30 December 2022, as amended, is dismissed.
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 GIVEN:
These proceedings were commenced by an application to show cause filed on 30 December 2022, which the applicant has thrice since sought to amend. On 6 January 2023, the respondents filed a Notice of Objection to Competency (NOTC) pursuant to Part 27 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The NOTC was filed within the time prescribed by r 27.06(1) of the Rules. I heard the matter urgently on 10 February 2023 in the circumstances described in [8] to [12] below.
Background
The background to this matter is somewhat difficult to discern from the limited material which has been placed before the Court.
The applicant is a citizen of Sri Lanka. The Court is told that he is an unauthorised maritime arrival. The applicant’s migration history was not put before the Court by any party but I infer, from allusions made by the respective legal representatives, that it is lengthy and has involved a number of requests for a variety of Ministerial intervention.
By the originating application the applicant sought judicial review of an array of purported decisions. Subsequent amendments have resulted in only one purported decision remaining for review.[1] That purported decision is said to be capable of inference from an email sent by an officer of the Department of Home Affairs (Department) to the applicant’s solicitor on 27 October 2022 (October email). The October email was apparently sent in reply to an email from the applicant’s solicitor dated 21 October 2022, which is not itself in evidence. The relevant content of the October email is set out below at [21].
[1] See [14] below
The evidence shows that the applicant was affected by a privacy breach on the Commonwealth Courts Portal/Federal Law Search website and notified of this by the Department on 8 July 2020. By the October email (if not before), the Department advised the applicant that he had been found to meet guidelines for referral to the Minister, and would be included in a submission by the Department to the Minister pursuant to ss 46A and 46B of the Migration Act 1958 (Cth) (Act). In essence, those sections enable the Minister to permit a person to make a further protection visa application.
The applicant seeks to have these proceeding transferred to the Federal Court of Australia (Federal Court) to be dealt with concurrently with two of the applicant’s proceedings, already extant before that Court (Federal Court proceedings). The specific details of the Federal Court proceedings are also not known to me. However, from submissions made by the parties, those proceedings seem reasonably well advanced. At present, the Federal Court proceedings are (each) listed for case management at 9:30am on 15 February 2023 before his Honour Justice Wigney, to whom each matter is docketed.
By their NOTC, the respondents object to the competency of the application on the basis that the purported decision is not a migration decision as it was not a decision made under the Act, and is therefore not within this Court’s jurisdiction pursuant to s 476 of the Act. Accordingly, the respondents oppose the transfer application.
On 18 January 2023, rather than approaching the Court’s Sydney General Federal Law Duty Judge, the solicitor for the applicant wrote to the Court (specifically to the Court’s Migration Registry email address (Migration Registry)), requesting that the instant proceedings be urgently listed for a directions hearing. The Migration Registry responded that the matter had been brought to the attention of a Migration Registrar but, in the absence of any indication that the parties had attempted to reach consensus as to case management before approaching the Court, they should first do so and if unable to reach agreement set out the areas of dispute so that the matter could be administered further.
Across 27 and 28 January 2023 the parties’ solicitors engaged in contentious email correspondence to which the Migration Registry was consistently copied. Those emails traversed the disputed views of the parties in relation to jurisdiction and also involved the solicitor for the applicant writing the following to the Migration Registry on Saturday, 28 January 2023 (anonymisation added):
Dear Migration Team,
Please find enclosed STARTTS report from the Applicant's treating mental health professional indicating the Applicant is currently at very high risk of suicide and that
“As his treating clinician for the past 5 years, I strongly believe that keeping Mr. [ELM21] indefinitely, would further cause long term unrepairable significant physical and mental damage."
There simply is no time for the Minister's delays when the Federal Court is already seized of jurisdiction over the same matter in the event that the decision were not a migration decision.
The jurisdiction of the FCFCOA is properly invoked and the Federal Court has the capacity to determine the notice of objection to competency.
Accordingly we request an urgent hearing for transfer.
An email sent immediately thereafter to the Court and the respondents’ solicitor attached a STARTTS report dated 23 December 2022 (December STARTTS report). The covering email stated “Medical Report enclosed”. The December STARTTS report was annexed to an Affidavit. Despite being referred to by the applicant’s solicitor as a “Medical Report”, the STARTTS report was prepared by a counsellor.
Written submissions were filed, unprompted, for the applicant on 31 January 2023.
By reason of the asserted urgency, the matter was then brought into my docket and listed for directions by me at 2:15pm on 6 February 2023. On that occasion I made orders (6 February Orders) granting leave to the applicant to rely on the most recent amended version of his application, being that filed on 23 January 2023[2] (amended application). It was also made clear to the parties that because the Court was making time to urgently hear the respective applications, there was no further grant of leave to amend. The 6 February Orders also required that the respondents file written submissions by 6:00pm on 8 February 2023. No provision was made for the filing of additional documents for the applicant. Despite this, the applicant’s solicitor filed a proposed further amended application on 7 February 2023, as well as supplementary written submissions and an additional Affidavit made by him on 8 February 2023, all without leave.
[2] Noting that it was styled as a “further” amended application because an antecedent proposed amended application had been filed on 4 January 2023, but was not yet the subject of any grant of leave.
The respondents filed written submissions in accordance with the 6 February Orders.
Application before the Court
By the proposed further amended application, the applicant sought to narrow the purported decisions the subject of the application to only what the applicant describes as the:
Stage 1 Personal Procedural Decision of the 2nd Respondent of 27th October 2022 to refer the Applicant to the Minister for consideration of the exercise of the Ministerial Intervention dispensing powers under s46A and 48B.
The second respondent is the Secretary of the Department.
At the hearing, because the proposed further amended application sought only to narrow issues between the parties (and to limit the bases upon which expedition and transfer were sought to matters which properly informed those questions (see [54] below), I granted leave to the applicant to rely upon it (further amended application).
The following Affidavits were read for the applicant:
(a)Affidavit of Daniel Robert Taylor affirmed 30 December 2022 (first Taylor Affidavit); and
(b)Affidavit of Daniel Robert Taylor affirmed 8 February 2023 (second Taylor Affidavit).
The first Taylor Affidavit (which was read without objection) was difficult to navigate, having been assembled with all the Annexure cover sheets in a group followed by the Annexures themselves, absent their respective cover sheets. The Affidavit was mis-paginated as a result. Annexed to the first Taylor Affidavit were two earlier STARTTS reports, prepared by the same counsellor who prepared the December STARTTS report.
In relation to the second Taylor Affidavit, the applicant’s solicitor sought only to rely upon the parts of it which related to Annexure “DRT-2”[3] thereto, and only to that Annexure itself. Even on that limited basis, the respondents objected to the second Taylor Affidavit saying that Annexure “DRT-2” was irrelevant. To the limited extent it remained pressed, the Affidavit was read, subject to relevance. Ultimately, I see no specific relevance to Annexure “DRT-2” in respect of the questions the Court must now determine.
[3] Which bears an Annexure cover sheet pertaining to Annexure “DRT-1”
At hearing, the respondents pressed their NOTC.
As noted at the outset of these reasons, the purported decision the subject of these proceedings is said to be inferable from the October email. An attempt[4] was made to annex that email to the first Taylor Affidavit. Relevantly, the October email said (anonymisation added):
Following on from your email sent to the International Obligations mailbox on 21 October 2022, I note you provided a copy of the letter Mr [ELM21] received from the Federal Court of Australia on 8 July 2020 advising him that he was impacted by the privacy breach on the Commonwealth Courts Portal and Federal Law Search. For those persons who provide evidence they have been impacted by that privacy breach and request Ministerial Intervention under the relevant sections, these cases will be referred to the Minister for his consideration.
As such, Mr [ELM21] has been found to meet the guidelines for referral to the Minister and his case will be included on a submission seeking the Minister’s intervention under sections 46A and 48B of the Act to allow him to lodge a further protection visa application. The Department has not considered the further claims raised in Mr [ELM21]’s Ministerial Intervention request and these will be considered as part of the protection visa assessment process, should the Minister agree to intervene.
As these are the Minister’s non-compellable and non-delegable powers, we are not able to provide a timeframe for this process.
[4] See [18] above
The questions for resolution by the Court are:
(a)whether the Court has jurisdiction in relation to the purported decision, which turns upon whether or not the purported decision is a migration decision for the purposes of the Act; and
(b)if the Court does have jurisdiction, whether the proceedings warrant transfer to the Federal Court pursuant to s 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 8.02(4) of the Rules, and subject to confirmation by the Federal Court pursuant to s 32AD of the Federal Court Act 1976 (Cth).
Given the contingent nature of the jurisdictional question, it is appropriate that it be determined first because, if jurisdiction is not properly invoked, the application must be dismissed: see r 27.06(5) of the Rules and AOA16 v Minister for Immigration and Border Protection [2017] FCCA 189 per Judge McNab (as his Honour then was) at [21]. The further corollary of this is that, if this Court is without jurisdiction, it is not possible to transfer the proceedings to the Federal Court: see Zurich Australian Insurance Ltd v Atradius Credito Y Caucion SA De Seguros Y Reaseguros [2022] FCA 709 per Allsop CJ at [11].
Legislation
The following statutory provisions of the Act are relevant to the question before the Court.
Section 46A:
Visa applications by unauthorised maritime arrivals
(1)An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
(a) is in Australia; and
(b) either:
(i) is an unlawful non-citizen; or
(ii)holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(1A) Subsection (1) does not apply in relation to an application for a visa if:
(a) either:
(i)the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or
(ii)the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and
(b)the application is for a visa prescribed for the purposes of this paragraph; and
(c)the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
(2A)A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
(2B)The period specified in a determination may be different for different classes of unauthorised maritime arrivals.
(2C)The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3)The power under subsection (2) or (2C) may only be exercised by the Minister personally.
(4)If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
(a)sets out the determination, the determination as varied or the instrument of revocation; and
(b)sets out the reasons for the determination, variation or revocation, referring in particular to the Minister's reasons for thinking that the Minister's actions are in the public interest.
(5)A statement under subsection (4) must not include:
(a) the name of the unauthorised maritime arrival; or
(b)any information that may identify the unauthorised maritime arrival; or
(c)if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned--the name of that other person or any information that may identify that other person.
(6)A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a)if the determination is made between 1 January and 30 June (inclusive) in a year--1 July in that year; or
(b)if the determination is made between 1 July and 31 December (inclusive) in a year--1 January in the following year.
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
Section 46B:
Visa applications by transitory persons
(1)An application for a visa is not a valid application if it is made by a transitory person who:
(a) is in Australia; and
(b) either:
(i) is an unlawful non-citizen; or
(ii)holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(2A)A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
(2B)The period specified in a determination may be different for different classes of transitory persons.
(2C)The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3)The power under subsection (2) or (2C) may only be exercised by the Minister personally.
(4)If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
(a)sets out the determination, the determination as varied or the instrument of revocation; and
(b)sets out the reasons for the determination, variation or revocation, referring in particular to the Minister's reasons for thinking that the Minister's actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the transitory person; or
(b) any information that may identify the transitory person; or
(c)if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned--the name of that other person or any information that may identify that other person.
(6)A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a)if the determination is made between 1 January and 30 June (inclusive) in a year--1 July in that year; or
(b)if the determination is made between 1 July and 31 December (inclusive) in a year--1 January in the following year.
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any transitory person whether the Minister is requested to do so by the transitory person or by any other person, or in any other circumstances.
Section 195A:
Detainee may apply for visa
(1) A detainee may apply for a visa:
(a)within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b)if he or she informs an officer in writing within those 2 working days of his or her intention to so apply--within the next 5 working days after those 2 working days.
(2)A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
Section 474:
Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
"privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)imposing, or refusing to remove, a condition or restriction;
(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4)For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
Decisions that are not privative clause decisions Item Provision Subject matter of provision 1 section 213 Liability for the costs of removal or deportation 2 section 217 Conveyance of removees 3 section 218 Conveyance of deportees etc. 4 section 222 Orders restraining non-citizens from disposing of property 5 section 223 Valuables of detained non-citizens 6 section 224 Dealing with seized valuables 7 section 252 Searches of persons 8 section 259 Detention of vessels for search 9 section 260 Detention of vessels/dealing with detained vessels 10 section 261 Disposal of certain vessels 11 Division 14 of Part 2 Recovery of costs 12 section 269 Taking of securities 13 section 272 Migrant centres 14 section 273 Detention centres 15 Part 3 Migration agents registration scheme 16 Part 4 Court orders about reparation 23 Division 7 of Part 5 Part-5 reviewable decisions: offences 28 Division 6 of Part 7 Part-7 reviewable decisions: offences 31 regulation 5.35 Medical treatment of persons in detention (5)The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.
(6)A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non-privative clause decision .
(7)To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):
(a)a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351 or 417 or subsection 503A(3);
(d)a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.
Section 476:
Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)
(1)Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2)The Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c)a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;
(d)a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3)Nothing in this section affects any jurisdiction the Federal Circuit and Family Court of Australia (Division 2) may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975 .
(4) In this section:
"primary decision" means a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b)that would have been so reviewable if an application for such review had been made within a specified period; or
(c)that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).
Submissions
The applicant asserts that (errors in original):[5]
The Respondent has the obligation to go first in raising its objection to competency. It would be futile for the Applicant to respond to a bare allegation that there is no jurisdiction in the Circuit Court in circumstances where it is beyond obvious that the jurisdiction of the FCFCOA is genuinely and properly invoked on two bases:
i.That there has been a personal procedural decision on 27th October 2022 to consider the exercise of the dispensing powers under s.46A and 48B which attracts procedural fairness obligations
ii.That there has been a constructive personal procedural decision under s.195A to consider the exercise of the dispensing powers under s.46A and 48B which attracts procedural fairness obligations under s.195A/197AB.
[5] Applicant’s written submissions filed 31 January 2023 at [1]
Despite alleging that the jurisdictional fact which the Court must determine for itself is “beyond obvious”, the submission in relation to the onus of establishing competency is misconceived. Rule 27.06(5) provides that it is the applicant who carries the burden of establishing the competency of an application. As such, it is the applicant who must demonstrate that the purported decision said to be constituted/evidenced by the October email, is a migration decision. The applicant’s written submissions in this matter proceeded on the assumption that the purported decision is a migration decision. Little was advanced by way of analysis as to why that was said to be the case. The Court was asked by written submissions to approach the matter as though this was already established, no doubt due to the alleged “obviousness” of that situation.
At hearing, the applicant’s solicitor seemed to contend that the purported decision was a personal procedural decision of the Minister because all decisions under the Act are decisions of the Minister. That is despite the fact that the application (see [14] above) says that the purported decision was actually made by the second respondent. It was submitted for the applicant that the referral by an officer of the Department of the applicant’s case to the Minister, was in fact a referral by the Minister to the Minister, such that it is a personal procedural decision and attracts the requirement to afford procedural fairness.
For the respondents it was contended that the purported decision was not a migration decision because (at least at the time at which the October email was sent) no personal procedural decision of the Minister to consider whether to exercise her ss 46A/48B powers, had been made. The respondents said that there is nothing in the email of 27 October 2022 which indicates that any such personal decision of the Minister has been made. Rather, the respondents say that prima facie, the email indicates that no attention has been given by the Minister to any (procedural or substantive) decision. Rather, a staff member of the first respondent’s Department has attended to an incoming email from the applicant’s solicitor and dealt with it by reference to pre-existing Departmental guidelines. The respondents say that while in this case the October email did indicate that the guidelines were found to be satisfied, such that a submission would be put to the Minister in due course, this does not (in and of itself) indicate any personal procedural decision by the Minister.
Consideration
The question of whether the Minister has made a personal procedural decision to consider whether to grant a visa or lift the bar is a question of fact for this Court: see Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (SZSSJ) per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ at [55]. This is third of three principles distilled by the High Court in SZSSJ (supra) by reference to the decisions in Plaintiff M61/2010Ev Commonwealth (2010) 272 ALR 14 (Plaintiff M61/2010E) and Plaintiff S10/2011 v Ministerfor Immigration and Citizenship (2012) 290 ALR 616 (Plaintiff S10/2011). The first two of those principles (see SZSSJ (supra) at [53] to [54]) are also highly relevant to the present case and warrant being set out in full:
First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.
Second, processes undertaken by the Department to assist in the Minister’s consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister’s consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister’s instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.
In XADv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1550 (XAD) at [18], Bromberg J summarised the aforementioned two stage process as being:
(i)Firstly, the decision to consider exercising the power to lift the bar; and
(ii)Secondly, the decision whether to lift the bar.
The material before me, but specifically the October email from which the purported decision is said to emanate, reveals no indication that (as at the date of the October email) the Minister was personally involved in either of the stages referred to in SZSSJ and XAD. Rather, and I accept the respondents’ submissions to this effect, the author of the October email conveyed that the applicant’s Ministerial intervention application would be referred in due course having, at that juncture, been assessed favourably for referral by the Department against relevant guidelines. I do not accept that assessment against the guidelines has the effect of elevating or converting an impending referral to the Minister to being a process instigated by the Minister personally, such that it would then fall within the principles outlined above in SZSSJ (supra). There is also nothing before the Court to support the contention that assessment against the guidelines by a Departmental officer is a decision by them made under the Act.
On the material before the Court, the Minister had made no decision one way or tother in relation to whether or not to exercise her non-compellable powers. Rather, the process which the October email records as being in-train, namely that the applicant’s case “will be included” in a submission to the Minister indicates that, at least as at the time of the October email:
(a)a submission relating to the applicant would be prepared, and which would include the applicant. The October email does not suggest that such a submission had already been prepared, but was simply yet to been sent); and
(b)after the applicant was included in such a submission, that submission would then be sent to the Minister.
The applicant contends that XAD demonstrates that whether there has been a personal procedural decision made by the Minister can be determined by inference. I do not consider that proposition to be particularly controversial, nor in dispute between the parties. To the extent that this Court must consider for itself whether such a decision exists as part of determining the question of jurisdiction, then in the absence of an express statement to that effect in the October email, a process of inferential reasoning becomes necessary.
The applicant relied heavily on XAD. That decision is relevantly distinguishable from the instant case because in XAD a submission referring the applicant had already been prepared by the Department and sent to the Minister. The referral submissions was before the Court and included views and recommendations of the Departmental officer. In the present matter, the October email simply presages that, at some point a submission will be compiled and the applicant included in it. The present applicant’s referral is nascent by comparison to XAD, which further reinforces an interpretation of the October email as being significantly and relevantly preparatory to any decision stage which personally involves the Minister. Rather, I find this matter is relevantly indistinguishable from CLA15 v Minister for Home Affairs [2019] FCA 262 per Allsop CJ and AOA16 v Minister for Immigration & Border Protection [2017] FCA 697 per Pagone J.
To the extent that it was submitted for the applicant that all decisions under the Act are decisions of the Minister, this must be rejected. The statute makes clear delineations between decisions which may or must be made personally by the Minister, those which are delegated and tasks which are preparatory conduct to those processes. As SZSSJ at [54] makes clear, processes which are undertaken by officers of the Department to assist in the Minister’s consideration of the possible exercise of non-compellable powers “derive their character from what the Minister personally has or has not done” (emphasis added). Unless the Minister had (at a minimum) committed to consider whether or not to make a substantive decision, there was no personal procedural decision.
Submissions were made for the applicant that the two stage process identified in SZSSJ[6] is to be reverse-engineered from its end point, namely the Minister making a final decision in relation to whether s 48B will apply to an applicant or not. It was contended for the applicant that a referral does not:
…come onto the Minister’s desk twice. It comes in a sign-ready format, and the Minister signs, and then the actions occur. Either the applicant is notified of a successful outcome, or the applicant is notified of an unsuccessful outcome. It’s that simple. It doesn’t come onto the Minister’s desk twice. Once alone, and then the decision is either yes or no. And from those two pathways, come the outcome – come the notification to the client in accordance with the Guidelines.
[6] See [34] and [35] above
As best as this submission could be understood, the applicant seemed to be contending that because the Minister sees a submission only once, and that there exists a two stage process, that any conduct preparatory thereto, must be stage one. This submission does not accord with SZSSJ, and ignores that the Minister might not proceed to make a substantive decision at all.
There is nothing in the present case to support the proposition that the Minister had so committed to consider making or to make a substantive decision. Rather, the applicant had yet to even be the subject of a submission to the Minister. The material in this matter, in particular the October email, reflects temporally that this is so. As such, the matter had not yet even been “referred”.
The applicant also sought to rely on the “Ministerial Intervention Power under s 48B of the Migration Act 1958 Guidelines” (s 48B Guidelines) as somehow supporting the contention referred to at [43] above. However, contrary to what was asserted for the applicant, [4.4] of the s 48B Guidelines makes plain that if the referral emanates from a Departmental officer, that officer is essentially an extension of the applicant, and not acting as a delegate of the Minister. The s 48B guidelines continue at [4.4] to say that (emphasis added):
Where an officer determines that a case meets these guidelines, the case should be brought to my attention in a ministerial submission outlining any information of relevance to my public interest consideration..
Again, by reference to the content of the October email which said that the applicant (emphasis added):
will be included on [sic] a submission seeking the Minister’s intervention under sections 46A and 48B of the Act…
it is open to infer, and I do, that the applicant’s case had not yet been brought to the Minister’s attention. As such, the matter not being within the notice of the Minister, the Minister had not (nor could she have) made a personal decision of any kind in respect of the applicant. Specifically there was no personal procedural decision as alleged by the applicant by reference to the principles in SZSSJ, Plainitff M61/2010E, Plaintiff S10/2011, XAD, or at all.
The objections raised by the respondents in the NOTC are made out.
While these proceedings seek to invoke s 476 of the Act, the purported decision said to emanate from the October email does not constitute a decision under the Act, and therefore is not a migration decision within the meaning of s 476(1) of the Act. The Court being without jurisdiction, the application made by the applicant, as amended, is incompetent and must be dismissed. I will so order.
It follows that the application for transfer to the Federal Court is also dismissed.
Before concluding, several additional matters warrant comment.
These proceedings were commenced in late January 2023, seeking transfer to the Federal Court so as to be joined to the other proceedings which the applicant has before that Court, in time to come before Wigney J on 15 February 2023 for case management. In seeking expedition, the urgency of the application was (initially)[7] said to be not the impending case management fixtures before Wigney J, but rather solely that “the Applicant's health and safety is assessed medically as being at high risk due to extended detention”. By reference to the correspondence to which the Court continued to be copied, that risk was elucidated as being that the applicant was exhibiting suicidal ideation.
[7] Having been ultimately withdrawn by the further amended application
An array of correspondence went between the solicitors for the respective parties, to all of which the Court’s Migration Registry was privy, and much of which was contentious. A situation by which the parties squabble in correspondence which includes the Court as a recipient should not occur, as I reminded the practitioners at the directions hearing on 6 February 2023, by reference to r 22.7 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Solicitors’ Rules). In essence that rule provides that solicitors should not raise matters with the Court other than those which are explicitly consented to by their opponent. The rule is directed to ex parte communication. However, it is open to interpret r 22.7 of the Solicitors’ Rules as including communication to which the opponent is copied but has not consented. Within the ambit of non-consent will be correspondence about which the opponent was never consulted and is reading for the first time, simultaneously with the Court.
Litigation should not be conducted by correspondence with the Court: see Cribb (Liquidator) v Jackson [2019] FCA 1632 per Colvin J at [15], Barkla v Allianz Australia Insurance Ltd [2018] FCA 2070 per Charlesworth J at [90] to [93], Trevi & Trevi [2016] FamCA 898 per Thornton J at [28] and Marsh v Marsh[2013] FamCA 445 per Aldridge J at [11].
As noted at [10] above, correspondence to the Court’s Migration Registry also included provision of the December STARTTS report (which pertained to the applicant’s mental health) being sent to the Migration Registry and the solicitor for the respondents by email.
The mental and physical health of a party may be salient to a proceeding in a variety of contexts. However, if it is the sole basis upon which the Court is asked make a particular decision, it is apt to give the impression that it is an attempt to sway the Court to a particular course of action. All the Courts seized of jurisdiction in relation to persons who may be held in immigration detention already take the fact of that detention seriously as being a relevant factor in case management. Such matters are, accordingly, already prioritised and expedited to the extent possible within the administration of justice. This Court does not doubt that the applicant is suffering. The two STARTTS reports which were properly advanced as evidence by annexure to the first Taylor Affidavit, make this plain. It is lamentable that the applicant has been detained for what is said to be some five years, and the Court is not unsympathetic to that plight. However, care must be taken by practitioners in raising relevant contextual circumstances to not transgress a boundary which could be described as a form of compassionate extortion, in order to seek priority or expedition ahead of other cases.
Next, the way in which these proceedings were prepared (and in particular) the manner in which documents were advanced, was haphazard and noncompliant. The Affidavits and submissions for the applicant were somewhat confusing and less than coherent, which in the Court’s experience seems a not uncommon occurrence in matters involving his solicitor. It is apparent that the applicant’s solicitor is genuinely well-intentioned, and passionate about assisting applicants in the migration jurisdiction. That enthusiasm, while commendable, must be channelled to better and more cogent effect. If the Court is not assisted by a practitioner, then neither is their client. The Court is never assisted by chaos or incoherence.
It is also unremarkable to observe that in each matter commenced within the Court’s migration jurisdiction, applicants are exposed to potential costs consequences if unsuccessful. Unrepresented applicants assume that risk, often unknowingly. It is hoped that by contrast, those who are legally represented are informed of their potential costs exposure and that in the event that they are unsuccessful and costs are awarded, that any inability by them to pay costs will result in the accrual by them of a debt to the Commonwealth. It is also hoped that practitioners who seek to assist applicants in this jurisdiction are ever mindful, in addition to their professional obligations and duties to the Court, of the specific duties arising under s 486E of the Act, and the potential consequences to them under s 486F of the Act.
Conclusion
The October email did not evidence, nor constitute, a personal procedural decision on the part of the Minister and it is not a migration decision for the purposes of s 476(1) of the Act. The Court has no jurisdiction in this matter. It follows that, absent jurisdiction being properly invoked, there is no proceeding or part thereof to transfer to the Federal Court. The application filed on 30 December 2022, as amended, is incompetent and must be dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty-nine (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 14 February 2023
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