Details
- Case
- [2022] FedCFamC2G 396
- Decision Date
-
CaseChat Overview and Summary
The applicants, FKP20, sought a writ of mandamus, prohibition, or an injunction to compel the Minister for Home Affairs to conduct a non-refoulement assessment for the applicants in relation to the designated regional processing country, Nauru. The applicants argued that the Minister's decision not to exercise the power under s 198AE of the Migration Act, which pertains to the application of s 198AD to unauthorised maritime arrivals, was unlawful. The primary legal issues in this case were whether the Federal Court had jurisdiction to review the Minister's decision, whether the applicants should be granted leave to amend their applications, and whether the applicants were entitled to the substantive relief they sought.
The Court found that it did not have jurisdiction to review the Minister's decision under s 198AE. The Court clarified that a decision by the Minister "not to exercise, or not to consider the exercise of, the Minister's power" under s 198AE is considered a "migration decision". However, review of such a decision is expressly excluded from the Court's jurisdiction. The Court also rejected the applicants' argument that the national interest, as defined in s 4(1) of the Migration Act, mandated a non-refoulement assessment before removal under s 198AD. The Court held that the purpose of the Migration Act should be derived from its text and structure, and not from any assumptions about its desired or desirable reach or operation.
In conclusion, the Court dismissed the applicants' claims for lack of jurisdiction and found that the Minister's decision not to exercise the power under s 198AE was not subject to judicial review by the Federal Court. The applicants' request for a writ of mandamus, prohibition, or an injunction was denied.
Evidence
Evidence Before The Court
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.CONSIDERATIONJurisdiction 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.
Decision
Reasons for decision
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
Ratio Decidendi
Legal Principle Established
I have been assisted by written and oral submissions by the parties’ representatives, in particular the submissions of the respondents on jurisdiction.CONSIDERATIONJurisdiction 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 SecretaryApplicable principles[9] Migration Act, s 476(2)(d), read with s 474(7)(a)
