Minister for Home Affairs & Anor v CLM18

This case concerned an application for special leave to appeal to the High Court of Australia, brought by the Minister for Home Affairs and another party, against a decision of the Full Court. The dispute arose from a submission made to the Minister in September 2017 concerning a cohort of approximately 32,000 individuals who had been permitted to apply for protection visas after a section 46A bar was initially lifted. A subsequent government decision imposed a deadline for these applications, and the submission in question related to the cessation of the lifting of the bar and the arrangements for those who had not yet applied, referred to as "non-lodgers." The applicants argued that the Full Court erred in finding that the Minister made a personal procedural decision to consider raising the section 46A bar for this cohort.

The legal issues before the High Court included whether the Minister's actions in relation to the submission constituted a personal procedural decision to consider exercising the power under section 46A, and whether the Full Court correctly determined the sufficient interest required to engage procedural fairness obligations in the context of cohort decision-making. Specifically, the applicants contended that the Full Court gave insufficient weight to the context of the Minister lowering the bar and the arrangements for non-lodgers, and that its finding of a personal procedural decision was not a realistic interpretation of the material. Furthermore, the applicants argued that the Full Court erred in its application of established High Court authority regarding the threshold for procedural fairness, particularly concerning the "non de minimis possibility" of detention.

The applicants' primary argument was that the Minister's submission was merely an informational document detailing departmental arrangements for non-lodgers, rather than a personal decision to reconsider raising the section 46A bar. They pointed to amendments to departmental guidelines, which indicated a narrowing of the circumstances under which the Minister would consider exercising his power, suggesting a focus on a subset of individuals with "compelling and compassionate" circumstances, rather than the entire cohort. The applicants also argued that the Full Court's finding of a "non de minimis possibility" of detention was an insufficient basis to impose procedural fairness obligations, especially given evidence that non-lodgers were to be granted bridging visas and that previous similar processes had not prolonged detention. They submitted that the Full Court failed to adequately consider the critical point that the plan was for all non-lodgers to receive a bridging visa, not to be subjected to prolonged detention.

The respondent, in response, argued that the second ground of appeal, concerning the assessment of interests for procedural fairness, raised a question of law, while the other grounds concerned factual matters. The respondent contended that the Full Court properly considered the individual circumstances of the respondent, who was an unlawful non-citizen liable for detention at the time of the decision, and that the finding of a personal procedural decision did not automatically equate to an obligation to afford procedural fairness to all members of the cohort. The respondent also submitted that the Minister's actions, including his handwritten notes on the submission, demonstrated personal involvement beyond merely approving departmental guidelines.