FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
Matter No S10/2011
PLAINTIFF S10/2011 PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR DEFENDANTS
Matter No S43/2011
JASVIR KAUR PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR DEFENDANTS
Matter No S49/2011
PLAINTIFF S49/2011 PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR DEFENDANTS
Matter No S51/2011
PLAINTIFF S51/2011 PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR DEFENDANTS
Plaintiff S10/2011 v Minister for Immigration and Citizenship Kaur v Minister for Immigration and Citizenship Plaintiff S49/2011 v Minister for Immigration and Citizenship
Plaintiff S51/2011 v Minister for Immigration and Citizenship [2012] HCA 31 7 September 2012 S10/2011, S43/2011, S49/2011 & S51/2011
ORDER
In each matter, application dismissed with costs.
Representation
S B Lloyd SC with S E J Prince, G J D del Villar and J B King for the plaintiffs (instructed by Parish Patience Immigration Lawyers)
S J Gageler SC, Solicitor-General of the Commonwealth with G R Kennett SC and A M Mitchelmore for the defendants (instructed by Australian Government Solicitor)
M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Plaintiff S10/2011 v Minister for Immigration and Citizenship Kaur v Minister for Immigration and Citizenship Plaintiff S49/2011 v Minister for Immigration and Citizenship Plaintiff S51/2011 v Minister for Immigration and Citizenship
Administrative law – Procedural fairness – Migration – Refugees – Review by Refugee Review Tribunal and Migration Review Tribunal – Ministerial discretion – Migration Act 1958 (Cth) confers powers upon Minister to dispense with statutory requirements for visa if "in the public interest to do so" – Dispensing powers must be exercised personally and are non-compellable – Plaintiffs refused visas and unsuccessfully sought merits review of those refusals – Plaintiffs requested Minister to consider exercising and to exercise dispensing powers – Requests by three plaintiffs refused by departmental officers pursuant to guidelines issued by Minister not forwarded to Minister – Request by one plaintiff refused by Minister – Whether statutory provisions conferring dispensing powers apt to affect adversely the sufficient interest of a party seeking exercise of those powers – Whether statutory provisions conferring dispensing powers excluded any obligation of Minister to accord plaintiffs procedural fairness.
Words and phrases – "dispensing provision", "guidelines", "legitimate expectation", "procedural fairness", "public interest", "sufficient interest".
Four plaintiffs, each of them non-citizens who tried and failed to obtain visas to remain in Australia, apply to this Court for declaratory relief and the issue of certiorari and constitutional writs against the Minister for Immigration and Citizenship ("the Minister") and the Secretary for the Department of Immigration and Citizenship ("the Secretary"). The applications, referred for hearing to a Full Court…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31
Case
[2012] HCA 31
Decision Date
CaseChat Overview and Summary
The Full Court of the High Court of Australia heard four applications brought by various plaintiffs against the Minister for Immigration and Citizenship. The central dispute concerned the plaintiffs' requests for the Minister to exercise personal, non-compellable powers under the *Migration Act 1958* (Cth) to dispense with certain statutory requirements for visa applications. These requests followed unsuccessful merits reviews of their visa refusals.
The primary legal issues before the Court were whether the statutory provisions conferring these dispensing powers were apt to affect adversely the interests of a party seeking their exercise, and consequently, whether these provisions excluded any obligation on the Minister to accord the plaintiffs procedural fairness when considering their requests. The plaintiffs argued that the Minister was obliged to afford them natural justice or procedural fairness in deciding whether to consider, and then whether to exercise, these dispensing powers.
The Court rejected the plaintiffs' submissions that the ministerial guidelines issued in relation to the dispensing provisions constituted a decision by the Minister to consider exercising these powers, or that the processes followed under the guidelines were steps towards their exercise. The Court reasoned that the dispensing powers were of a special nature, not enlivened by mere request or circumstance, and were subject to a specific form of parliamentary accountability. The Court found no implied requirement that the guidelines be applied in a manner that would accord with the hearing rule aspect of procedural fairness.
In each matter, the application was dismissed with costs.
Orders
Orders of the court
In each matter, application dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
GUMMOW, HAYNE, CRENNAN AND BELL JJ
HEYDON J
The plaintiffs' submissions that the issue of ministerial guidelines in relation to the dispensing provisions involved a decision by the Minister to decide to consider the exercise of the powers conferred by those provisions, should be rejected. So too should the proposition that the processes followed under the guidelines were steps towards the exercise of the ministerial powers. There was no implied requirement that the guidelines be applied in such a way as to accord with the hearing rule aspect of procedural fairness.Conclusion Each of the applicants had access to administrative review procedures under the Act and judicial review of decisions of the MRT or the RRT as the case may be. Each had had his or her case considered personally by the Minister on at least one occasion. Those histories do not of themselves answer the legal question whether procedural fairness applied to the application of the ministerial guidelines to their requests for further consideration under the dispensing provisions of the Act. Those histories, however, involving as they do, the regular legislative scheme for dealing with visa applications, point up the special nature of the discretions created by the dispensing provisions which cannot be enlivened by request or circumstance. The applications in each case should be dismissed with costs. These four applications in the original jurisdiction of this Court were heard together by the Full Court. The applications each raise questions of construction of cognate provisions of the Migration Act 1958 (Cth) ("the Act"). These provisions confer upon the Minister powers (but not duties) which are to be exercised by the Minister personally and, if exercised, dispense with requirements of the Act. Exercise of these powers is attended in each case by the statutory obligation that the Minister cause a statement to be laid before each House of the Parliament. This is a particular manifestation of that aspect of responsible government which renders individual Ministers responsible to the Parliament for the administration of their departments[56]. Thus, to adapt what was said[57] by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng[58]:"The statutory powers in question have been reposed in a political official, a member of the Executive Government, who not only has general accountability to the electorate and to Parliament, but who, in s 502, is made subject to a specific form of parliamentary accountability."[56]See FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 364; [1982] HCA 26.[57]With respect to s 502 of the Act.[58](2001) 205 CLR 507 at 539 [102]; [2001] HCA 17. See also at 561 [176] per Hayne J, 584 [246] per Callinan J. The plaintiffs contend that in deciding whether or not to consider the exercise of the relevant power, and then in deciding whether or not to exercise the power, the Minister is obliged to afford natural justice or procedural fairness to any moving party. The defendants, the Minister and the Secretary, deny this construction.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
GUMMOW, HAYNE, CRENNAN AND BELL JJ,
HEYDON J