FKP20 v Minister for Home Affairs
[2022] FedCFamC2G 396
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FKP20 v Minister for Home Affairs [2022] FedCFamC2G 396
File numbers: SYG 3047 of 2020
SYG 27 of 2021
SYG 959 of 2021Judgment of: JUDGE DRIVER Date of judgment: 7 June 2022 Catchwords: MIGRATION – medevac detainees – applications for mandamus to compel a non-refoulement assessment prior to any removal or return to Nauru – consideration of the operation of s 198AE of the Migration Act 1958 (Cth) – whether a Ministerial Direction restricting regional processing countries to Nauru attracts the jurisdiction of the Court considered – the Court has no jurisdiction to consider the exercise or potential exercise of power under s 198AE or any preliminary procedural action by the Minister’s Department Legislation: Acts Interpretation Act 1901 (Cth) s 15AA
Evidence Act 1995 (Cth) s 136
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 4, 46A, 145, 195A, 198AA, 198AD, 198AE, 198AH, 198AJ, 339, 351, 417, 474, 476, 476A, 501, 501A, 501B, 501BA
Parliamentary Privileges Act 1987 (Cth) s 16
Cases cited: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195
AOU21 v Minister for Home Affairs [2021] FCAFC 60 Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Capello v Roads and Maritime Services (2019) 100 NSWLR 259
Carr v Western Australia (2007) 232 CLR 138
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378
Commonwealth of Australia v AJL20 (2021) 95 ALJR 567
Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213
Eastman v Chief Executive Officer of Department of Justice and Community Safety (2010) 4 ACTLR 161
FCZ20 v Minister for Home Affairs [2022] FedCFamC2G 15
FDT20 v Minister for Home Affairs [2021] FCCA 711
FJI20 v Minister for Home Affairs [2021] FedCFamC2G 88
Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438
Lacey v Attorney-General (Queensland) (2011) 242 CLR 573
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1
Murphy v Electoral Commissioner (2016) 261 CLR 28
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636
SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207
WBM v Chief Commissioner of Police (Vic) (2012) 43 VR 446
Division: Division 2 General Federal Law Number of paragraphs: 44 Dates of hearing: 7, 21, March, 6 April, 19 May 2022 Place: Sydney Solicitor for the Applicants: Mr D Taylor of Sydney West Legal and Migration Counsel for the Respondents: Mr G Johnson SC, with Mr N Swan Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 3047 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FKP20
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
SYG 27 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABJ21
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
SYG 959 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BKY21
First Applicant
BKZ21
Second ApplicantAND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
7 JUNE 2022
THE COURT ORDERS THAT:
1.The applications or amended applications in the listed proceedings are 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 DRIVER:
INTRODUCTION AND BACKGROUND
This is a further judgment in a series of judgments I have delivered concerning so called medevac detainees who were brought to Australia from a regional processing country for temporary purposes (generally medical treatment) and kept in detention in Australia. Previous judgments have dealt with issues concerning the continuing detention of the detainees and whether an obligation has arisen to return them to a regional processing country.[1]
[1] See for example FDT20 v Minister for Home Affairs [2021] FCCA 711 and FJI20 v Minister for Home Affairs [2021] FedCFamC2G 88
In FCZ20 v Minister for Home Affairs[2] I dealt with a further issue of whether a non-refoulement assessment is required prior to any such removal or return.
[2] [2022] FedCFamC2G 15
In that judgment, I answered that question in the negative. However, my reasons were obiter because the Minister had intervened prior to judgment to grant each of the applicants a visa and the issue in those proceedings was rendered moot.
Some other applicants further agitated the issue of the need for a non-refoulement assessment at a hearing before me on 7 March 2022. At the request of counsel for the respondents I adjourned those matters part heard to be dealt with concurrently with another list of matters on 21 March 2022. At the trial on 21 March 2022 I ordered that all of the matters be dealt with concurrently. I made further directions on 6 April 2022 concerning a claim of legal professional privilege by the respondents and the production of further documents by them. The remaining applications were heard on 19 May 2022.
At one stage these proceedings involved over twenty applicants. As a consequence of Ministerial intervention, however, all but the remaining named applicants were granted visas and their applications were dismissed by consent. I have separately dealt with competing costs applications in the light of the dismissal of those matters. The applicants the subject of this judgment are in community detention under a residence determination made by the Minister.
It is apparent that the issue which the current applicants require to be resolved is the impact of s 198AE of the Migration Act 1958 (Cth) (Migration Act) on the controversy between the parties. That controversy is whether the applicants, having expressed fear of returning to a regional processing country, are entitled to have those claims considered before being returned to that country.
The submissions developed in writing and orally by the solicitor for the applicants concern in large part whether the Secretary of the Minister’s Department (or perhaps the Minister) is obliged to assess non-refoulement claims made by the applicants in relation to a regional processing country for the purpose of the Minister then deciding whether to exercise power under s 198AE to determine that s 198AD does not apply to them, and whether a writ of mandamus should issue compelling compliance with such obligation.
As has been pointed out by counsel for the respondents, there is a significant issue of jurisdiction in relation to this Court’s capacity to deal with questions arising concerning the operation of s 198AE. Further, if the Court has jurisdiction for relevant purposes, there would be a further question whether the applicants should be given leave to amend their applications. Finally, if leave were to be granted, the substantive question would be whether the applicants should receive the substantive relief they seek, which is a writ of mandamus or prohibition or an injunction to, in effect, compel the conduct of a non-refoulement assessment in relation to the regional processing country.
THE EVIDENCE AND SUBMISSIONS
Court books have been prepared in each of the matters the subject of this judgment. I received as evidence those court books as well as all affidavit material filed in the proceedings. I received as exhibits Guidelines issued by the then Minister concerning s 198AE on 28 July 2013[3] (Guidelines) and an Explanatory Memorandum and Supplementary Explanatory Memorandum Relating to the Migration Legislation Amendment (Offshore Processing and Other Measures Bill) 2011.[4]
[3] Exhibit A1
[4] Exhibit A2
I issued a direction under s 136 of the Evidence Act 1995 (Cth) for the purpose of limiting the use to be made of the Explanatory Memorandums in accordance with s 16(3)(c) of the Parliamentary Privileges Act 1987 (Cth).
On 10 March 2022 the Minister for Home Affairs issued the Migration (Direction for Regional Processing Countries) Instrument 2022 ADMIN22/032 (Direction) under s 198AD(5) of the Migration Act. The effect of that Instrument is to specify a single regional processing country (Nauru) where previously there had been two (Nauru and Papua New Guinea). Counsel for the Minister tendered the Direction.[5] The solicitor for the applicants called for the production of any Ministerial briefing note prepared for the purposes of the making of the Instrument. The relevant submission to the Minister was produced and tendered,[6] subject to redactions of legally privileged material. The claim of legal professional privilege was contested but I upheld it. The evidence was completed by a departmental document dealing with the assessment of pre-removal risk factors.[7]
[5] Exhibit R1
[6] Exhibit A3
[7] Exhibit A4
I have been assisted by written and oral submissions by the parties’ representatives, in particular the submissions of the respondents on jurisdiction.
CONSIDERATION
Jurisdiction
This Court has jurisdiction in relation to “migration decisions”, as defined in the Migration Act.[8]_bookmark1 This Court does not, however, have jurisdiction of the amplitude conferred on the Federal Court by s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act).
No jurisdiction with respect to any decision by the Minister
[8] section 476(1)
Section 198AE of the Migration Act is in the following terms:
(1)If the Minister thinks that it is in the public interest to do so, the Minister may, in writing, determine that section 198AD does not apply to an unauthorised maritime arrival.
Note: For specification by class, see the Acts Interpretation Act 1901 .
(1A)The Minister may, in writing, vary or revoke a determination made under subsection (1) if the Minister thinks that it is in the public interest to do so.
(2)The power under subsection (1) or (1A) may only be exercised by the Minister personally.
(3)The rules of natural justice do not apply to an exercise of the power under subsection (1) or (1A).
(4)If the Minister makes a determination under subsection (1) or varies or revokes a determination under subsection (1A), 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, varied or revoked between 1 January and 30 June (inclusive) in a year--1 July in that year; or
(b)if the determination is made, varied or revoked 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 (1) or (1A) 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.
(8) An instrument under subsection (1) or (1A) is not a legislative instrument.
A decision by the Minister “not to exercise, or not to consider the exercise of, the Minister’s power” under s 198AE is a “migration decision”. However, review of such a decision is expressly excised from this Court’s jurisdiction.[9] Accordingly, insofar as the applicants’ contention would seek to compel the Minister to consider the exercise of his or her power under s 198AE, or to exercise that power, it is plainly one in respect of which this Court has no jurisdiction.
Whether the Court has jurisdiction with respect to conduct of the Secretary
Applicable principles
[9] Migration Act, s 476(2)(d), read with s 474(7)(a)
As to the Secretary, anything that he (or any officer in the Minister’s Department) does to assist the Minister with respect to the possible consideration of the exercise of power, or the exercise of power, under s 198AE would only have a statutory basis (ie, would only be a “migration decision”) if the Minister had already made what the case law describes as a “procedural decision” ie, a personal decision to consider whether to exercise power under s 198AE (as distinct from a “substantive decision”, being a decision to exercise or not to exercise power under s 198AE). That flows from the decisions of the High Court in Plaintiff M61/2010E v Commonwealth;[10] Plaintiff S10/2011 v Minister for Immigration and Citizenship[11] and Minister for Immigration and Border Protection v SZSSJ,[12] concerning similar provisions of the Migration Act.
[10] (2010) 243 CLR 319
[11] (2012) 246 CLR 636
[12] (2016) 259 CLR 180
As initially explained by the High Court in Plaintiff M61 with respect to similar personal, non- compellable powers of the Minister (ss 46A and 195A), the exercise of such powers “is constituted by two distinct steps: first, the decision to consider (in that case) exercising the power to lift the bar or grant a visa and secondly, the decision whether to lift the bar or grant a visa”.[13] The first step is the procedural decision; the second step is the substantive decision. That analysis was subsequently confirmed by a unanimous judgment of all seven members of the High Court in SZSSJ.
[13] at [70], emphasis in original
In Plaintiff S10, the High Court considered the effect of guidelines issued by the Minister that set out the circumstances in which, in the ordinary course, the Minister wished to have matters referred to him so that he could consider the possible exercise of one or more of his non‑compellable powers. The Court unanimously rejected an argument that the guidelines evidenced a decision by the Minister to consider the exercise of those powers. Instead, the Court held that the guidelines were properly understood as directions from the Minister to the Minister’s Department about when it should refer cases to him in order to allow him to decide whether or not to consider exercising particular personal non-compellable powers (ie, whether to make a procedural decision).[14]
[14] at [46], [52] (French CJ and Kiefel J), [91] (Gummow, Hayne, Crennan and Bell JJ). This is also how the decision in Plaintiff S10 was characterised in SZSSJ at [47]
In SZSSJ, the High Court considered whether the Minister’s Department was required to provide procedural fairness when conducting an International Treaties Obligations Assessment (ITOA) for the purpose of determining whether an incident known as a “data breach” had the consequence that removal of relevant individuals would breach non-refoulement obligations. ITOAs were conducted by Departmental officers in accordance with procedures set out in the Minister’s Department’s Procedures Advice Manual. The instructions in that manual specified that a finding by an officer that a non-refoulement obligation was engaged in respect of a particular individual might result in referral of that individual’s case to the Minister so that the Minister might consider whether to exercise one of his personal, non-compellable powers to grant a visa or to lift a bar on applying for a visa.
The High Court affirmed the finding of the Full Federal Court that the ITOA process was properly characterised as a process undertaken under the Migration Act. The Court noted, however, that a critical step in reaching that conclusion was “an important factual finding” that it should be inferred on the evidence that “the Minister had personally decided to consider whether to exercise” his powers in respect of all individuals who were affected by the data breach.[15]
[15] at [33]
The High Court explained that three principles were to be drawn from Plaintiff M61 and Plaintiff S10, as follows at [53]-[55] (respondents’ emphasis retained):
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 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.
Third, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to life a bar in a particular case or classes of cases is a question of fact.
Accordingly, in SZSSJ, it was because the Minister had (as a matter of fact) made a procedural decision that the ITOA process undertaken by officers in the Minister’s Department had a statutory foundation.[16] Accordingly, it was on this basis that the Federal Circuit Court had jurisdiction with respect to an ITOA, being a kind of “migration decision” in light of s 474(2) read with s 474(3)(h)): “[t]he conduct of an ITOA by an officer of the Department is conduct under the Act preparatory to the making of a substantive decision by the Minister – specifically, it is the holding of an inquiry or investigation”.[17]
[16] at [58] ff
[17] at [66], respondents’ emphasis retained
If, however, the Minister has not made a procedural decision, then any conduct of the Minister’s Department in making an assessment (or failure to do so) would not have a statutory foundation. This is illustrated by the series of cases commencing with the decision of Robertson J in Jabbour v Secretary, Department of Home Affairs[18] and leading to the decision of the Full Federal Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[19]
[18] (2019) 269 FCR 438
[19] [2021] FCAFC 213
In those cases the Federal Court had original jurisdiction under s 39B of the Judiciary Act with respect to the matters alleging unreasonableness by Departmental officers in the conduct of assessments of requests for Ministerial intervention under ss 351 and 417 only because the Minister had not made a procedural decision to consider whether to exercise his personal power. (Counterfactually, if the Minister had made such a procedural decision, then the assessments by Departmental officers would have been “migration decisions”, applying SZSSJ and, while this Court would have jurisdiction, the Federal Court would not have had original jurisdiction by operation of s 476A of the Migration Act.[20])
No procedural decision by the Minister
[20] Section 476A(1) relevantly provides that “[d]espite any other law, including section 39B of the Judiciary Act 1903 …, the Federal Court has original jurisdiction in relation to a migration decision” only in respect of four categories of such decisions
The applicants bear the onus of proving that the Minister has made a procedural decision.[21] In my view, the applicants have failed to discharge that onus. The Court cannot find on the available evidence that the Minister has made such a decision in relation to any or all of the applicants. Accordingly, the Court would have no jurisdiction to review the conduct (or failure to engage in conduct) of the Minister’s Department in relation to s 198AE.
[21] In AOU21 v Minister for Home Affairs [2021] FCAFC 60 at [195], the Full Federal Court emphasised that where a party seeks an order in the nature of mandamus, as in this case, “the onus lies on that party to prove the facts necessary to justify the grant of such relief”. See also, eg, Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [41]
The Guidelines do not manifest a procedural decision by the Minister to consider exercising his power in relation to any class of individuals. To the contrary, the Guidelines indicate that the Minister has not done so. In particular:
(a)at [1], the Minister states that the purpose of the Guidelines is to explain “circumstances in which I may wish to consider exercising my public interest power under section 198AE” (respondents’ emphasis retained);
(b)at [2], the Minister states that the purpose of the Guidelines is to “inform departmental officers when to refer a case to me so that I can decide whether to consider exercising my non-compellable and non-delegable power in the public interest” (respondents’ emphasis retained); and
(c)at [24], the Minister states that he has “decided, in advance, not to consider the exercise of my power under section 198AE in relation to any other classes of case”.
I accept the respondents’ submission that the language used in the Guidelines is incompatible with the notion of the Minister having made a decision to consider the exercise of his personal non-compellable power under s 198AE(1) in respect of any class of persons. On the contrary, the Minister has expressly decided not to consider cases that fall outside the Guidelines, and has directed the Minister’s Department to refer other cases to him so that he can decide “whether to consider” exercising the power in those cases.
During the hearing held on 7 March 2022, I referred to [36] of the Guidelines. I accept that that paragraph must be read with [37]. Reliance on these two paragraphs (either alone or in conjunction with [21]) does not assist the applicants because:
(a)paragraph [37] makes clear that the Minister “may” seek further information to enable him to “determine whether to consider the exercise” of his public interest power. That is indicative that the Minister has not made a procedural decision (as explained in SZSSJ, above). Accordingly, anything done by the Minister’s Department in acquiring or seeking information for the Minister has, for the same reasons above, no statutory basis. There is no “migration decision” that arises out of what is stated at [36]-[37] of the Guidelines; and
(b)paragraph [36] confirms the availability of the Minister’s personal power in s 198AE(1) even in cases outside the Guidelines. That statement does not mean that the Minister has made a procedural decision. As explained above, any decision by the Minister under s 198AE is excised from this Court’s jurisdiction by reason of ss 476(2)(d) and 474(7).
The language used in the Guidelines is relevantly the same as used in the guidelines considered by the High Court in Plaintiff S10. There, the Court found that the guidelines were directed to when the Minister’s Department was to refer cases to the Minister to allow him to decide whether or not to consider exercising the non-compellable power.[22] As French CJ and Kiefel J explained, those guidelines:[23]
… [do] no more than facilitate the provision of advice to the Minister in particular cases and otherwise operate as a screening mechanism in relation to any requests which the Minister has decided are not to be brought to his or her attention. The issue of the guidelines did not involve a decision on the part of the Minister, acting under the relevant section, to consider the exercise of the power conferred by it.
[22] at [46], [52], [91]
[23] at [46]
The present matters are cases within the second of the two situations identified by the High Court in SZSSJ at [54]. That is, any process that is done, or that might be done, by the Minister’s Department “to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness” (respondents’ emphasis retained). The respondents also submit in passing that, separately to the jurisdiction issue, the High Court’s statement that no procedural fairness is owed is also fatal to the applicants’ contention that any non-refoulement assessment is also required to be done “with a right to be heard”.
Given that any process that is, or might be, undertaken by the Minister’s Department with respect to the possible exercise of power by the Minister under s 198AE has “no statutory basis”, the result is that it is not done “under this Act”, therefore cannot fall within s 474(2), and therefore cannot be a “privative clause decision”. For the avoidance of doubt, the applicants’ assertion that there has been a “failure” by the Minister’s Department to do something (said to thereby engage s 474(3)(g)) goes nowhere, because even if there has been a “failure”, that failure would not be in relation to something that is done or required to be done “under” the Migration Act.
The applicants contend that the Direction made by the Minister on 10 March 2022[24] constitutes a procedural decision by the Minister preliminary to any consideration of particular cases under s 198AE. The submission was pursued with the benefit of the submission to the Minister that preceded the making of the Direction. In my view, the applicants’ submission must be rejected. First, there is nothing in the Direction (or the submission put to the Minister prior to her making it) which relates to any non-refoulement claims by any applicant. The Direction simply narrows to one the number of regional processing countries available for the potential removal, being the entire class of persons taken to be eligible for removal by operation of the Migration Act. It is, in my view, of no import to the exercise of the Minister’s power under s 198AE, like the Guidelines, which, as explained above, has not given rise to a procedural Ministerial decision.
[24] Exhibit R1
In that regard, as was accepted by the parties for the purposes of the trial of this matter, all of the present applicants have expressed a fear of returning (or going) to Nauru.
It follows that the Court has no jurisdiction to deal with the claims raised relating to s 198AE of the Migration Act. It is plain from Exhibits A1 and A2 that that section provides the mechanism intended by Parliament and the Executive for consideration of any non-refoulement claims made by a potential transferee in relation to a regional processing country. This helps to explain why the consideration of non-refoulement claims is irrelevant to other provisions in the statutory scheme which I dealt with in FCZ20. The Minister’s personal discretionary power in s 198AE is specifically excluded from this Court’s jurisdiction and there is no evidence that the Minister has engaged in any procedural decision which might attract the Court’s jurisdiction.
What if I am wrong on jurisdiction?
If I were wrong on the question of jurisdiction, I would still find that no relief is available to these applicants seeking to compel a non-refoulement assessment in relation to Nauru under s 198AE.
First, Departmental officers have no obligation under the Migration Act, enforceable by a writ of mandamus, to undertake any assessment of non-refoulement obligations. In Plaintiff M61, where the Court found that a procedural decision had been made (and assessments by the Minister’s Department and contractors were conducted in response to that decision), the Court held that mandamus was unavailable.[25] There is simply no duty under the Migration Act for officers to undertake an assessment, which this Court could enforce by mandamus.
[25] at [99]-[100]
Secondly, the High Court has held that there is no duty upon the Minister to exercise, or consider exercising, powers in the nature of s 198AE(1) (irrespective of what assessment might be made by a Departmental officer).[26] Indeed, there is no requirement for the Minister to even consider any assessment by a Departmental officer.[27]
[26] Plaintiff M61 at [70], [77], [100]; SZSSJ at [53]. See also SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 at [39] (Full Federal Court); Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [203]-[204], [207]-[208] (Lander and Gordon JJ)
[27] see eg, Plaintiff M61 at [70], [77], [100]; at [39]
The unavailability of mandamus cannot be circumvented by an injunction or writ of prohibition expressed in the form of a “remedial double negative”.[28] There is no “unlawful conduct” (eg, taking any of the applicants to a regional processing country in the absence of an assessment) that could be restrained by the grant of an injunction or a writ of prohibition.
[28] see Murphy v Electoral Commissioner (2016) 261 CLR 28 at [4] (French CJ and Bell J)
For completeness, this case is quite distinct from the Jabbour line of cases culminating in Davis. In those cases, officers in the Minister’s Department had made assessments not to refer the applicant’s case to the Minister by reference to relevant guidelines, and (so it was argued) a declaration might issue if the assessments actually made evinced legal unreasonableness (although a declaration had not in fact been issued in any of these cases).[29] That contrasts to the present matters, where there is no evidence that any such assessment has been undertaken and that is sought to be criticised as affected by some form of legal unreasonableness.
[29] see eg O’Callaghan J’s factual summary at first instance: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791 at [2], [22]-[26]
Finally, no declaration would issue even if the applicants have a relevant “interest” (falling short of a “right” for an assessment to be conducted) because, as Brennan J explained in Attorney-General (NSW) v Quin,[30] “[j]udicial review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power”.[31]
[30] (1990) 170 CLR 1 at 35
[31] Cf. Davis at [248]
Consistently, as Kiefel J (Sackville J agreeing) explained in Minister for Immigration and Multicultural Affairs v Ozmanian,[32] it would not be appropriate to issue “a bare declaration, not declaratory of any present right”. A declaration “must be productive of some effect before it could be said to be warranted”, noting that “any consequences could not be brought about by the declaration itself, as might occur where there is a pronouncement of the parties’ rights”. A bare declaration was inappropriate as it would not redress any grievance “save for some ill-defined prospects that the Minister might be moved to consider it”.
Applicants’ reliance upon “national interest” in s 4(1) of the MigrationAct
[32] (1996) 71 FCR 1 at 30-33
In the applicants’ amended submissions (filed on 27 February 2022), it is argued that “the obligation to conduct a non-refoulement assessment prior to removal under s 198AD is a requirement of the national interest as defined under s 4(1) of the Migration Act”,[33] and that the “interpretation of s 198AD…requires consideration of the ‘national interest’ as per s 4 of the Act”.[34] I accept the respondents’ submission that the applicants’ reliance upon s 4(1) of the Migration Act, and the “national interest”, is misplaced:
(a)the argument is premised upon the “incorporation” of the national interest into the objects of the Migration Act (in s 4(1)) and the asserted operation of s 15AA of the Acts Interpretation Act 1901 (Cth). As French CJ and Hayne J have held, the “purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions”.[35] The “purpose of a statute is not something which exists outside the statute. It resides in its text and structure…”;[36]
(b)in ascertaining the “purpose” of the Migration Act, regard must be had to its substantive provisions, not to highly general objects provisions like s 4(1). As both the New South Wales and the Victorian Courts of Appeal have emphasised, an express statement of purpose is not the sole determinant of, and does not alone represent, the purpose(s) of legislation.[37] Consistently, Edelman J explained in Commonwealth of Australia v AJL20[38] that the statements in s 4 of the Migration Act “do not, and cannot, conclusively define the scope and purposes of the Migration Act”. It is “not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose”;[39]
(c)as Gleeson CJ has explained, “legislation rarely pursues a single purpose at all costs”, and the general rule of interpretation, that a construction that would promote the purpose or objects underlying an Act is to be preferred to a construction that would not, “may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act”.[40] Plainly, the Migration Act is one that promotes a wide range of interests;
(d)the applicants focus on s 4(1), but that must be read with s 4(5): “to advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country”. That subsection drives attention back to the particular statutory provisions dealing with regional processing[41] and what those specific provisions state;
(e)the substantive provisions of the Migration Act do not evince that it is a “purpose” of the Migration Act that a non-citizen cannot be taken from Australia, pursuant to s 198AD(2), without a non- refoulement assessment being undertaken vis-à-vis a regional processing country. To the contrary, the substantive provisions of the Migration Act include ss 198AA(b) and 198AH(2), which make clear that the existence of non-refoulement claims does not somehow limit the operation of s 198AD(2): see generally the respondents’ submissions filed on 4 March 2022 at [6]-[13];
(f)the performance of the duty in s 198AD(2) does not require consideration of the “national interest”. No such requirement is present in the words actually used in s 198AD(2) (or ss 198AA-198AJ more generally). When the Migration Act requires the national interest to be considered, it expressly says so;[42]
(g)further, and in any event, contrary to the assumption in the applicants’ argument, it is not somehow necessarily in the “national interest” that non-refoulement obligations are assessed (nor do the applicants explain how the Court itself can possibly so conclude, apart from a general reference to the Refugees Convention). In Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20,[43] Besanko J, who gave the lead judgment, held that Australia’s non-refoulement obligations were not a mandatory relevant consideration in considering the national interest (as required, in that case, by s 501A(2)(e)).Further, in that case, the Court accepted that the Minister might lawfully decide that it was in the national interest to make a decision that would expose an individual to refoulement (the Court, however, held that it was unreasonable in the particular circumstances of that case for the Minister not to consider the consequences of his decision in assessing where the national interest lay);
(h)accordingly, I maintain the view I expressed in FCZ20 at [47], that CWY20 did not bear upon the question of whether a non-refoulement assessment was required to be undertaken in connection with the taking of a non-citizen pursuant to s 198AD(2). It also has no bearing on s 198AE, being a personal non- compellable power of the Minister, the availability of which turns on the “public interest” (not “national interest”). Section 501A(2) is a power of a fundamentally different character to s 198AD(2) (or s 198AE), and the error identified in that case is far from the circumstances of the present matters. Insofar as CWY20 is relevant, it supports the respondents’ position that non-refoulement obligations are not a mandatory relevant consideration in consideration of the national interest.
[33] at [9A], [10]
[34] at [14]
[35] Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378 at [26]
[36] Lacey v Attorney-General (Queensland) (2011) 242 CLR 573 at [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)
[37] Capello v Roads and Maritime Services (2019) 100 NSWLR 259 at [39]-[42] (Payne JA; Brereton JA and Emmett AJA agreeing); WBM v Chief Commissioner of Police (Vic) (2012) 43 VR 446 at [40] (Warren CJ; Hanson JA agreeing); see also Eastman v Chief Executive Officer of Department of Justice and Community Safety (2010) 4 ACTLR 161 at [57] (Refshauge J)
[38] Commonwealth of Australia v AJL20 (2021) 95 ALJR 567 at [127]
[39] Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 at [28] (French CJ, Hayne, Kiefel and Bell JJ)
[40] Carr v Western Australia (2007) 232 CLR 138 at [5]-[6], cited with approval in Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at [40] (the Court)
[41] ie. s 198AA-198AJ
[42] see eg ss 145(1)(b), 339, 501(3)(d), 501A(2)(e), 501B(2)(e), 501BA(2)(b)
[43] [2021] FCAFC 195 at [155], [157], [160]
CONCLUSION
I conclude that the Court has no jurisdiction to consider the proposed amended applications put forward in these proceedings. There being nothing else for the Court to consider in relation to the extant applications, they will be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 7 June 2022
SCHEDULE OF PARTIES
SYG3053 of 2020 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
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