Plaintiff S11/2019 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors

[2019] HCATrans 62

[2019] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S11 of 2019

B e t w e e n -

PLAINTIFF S11/2019

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

DUSICA OF THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 5 APRIL 2019, AT 9.31 AM

Copyright in the High Court of Australia

HER HONOUR: On 14 January 2019, the plaintiff filed an application for a constitutional or other writ seeking to challenge the decision of the third defendant not to refer to the first defendant the plaintiff’s request that the Minister exercise the non‑compellable powers under section 48B or section 417 of the Migration Act1958 (Cth). The Minister submitted that the materials filed by the plaintiff did not disclose an arguable basis for the relief sought. The application was listed for hearing yesterday and the parties appeared before this Court.

For the reasons that I now publish I would dismiss the plaintiff’s application with costs.  I direct that the reasons as published be incorporated into the transcript.  I publish those reasons.

In matter S11 of 2019, the order of the Court is:

1.The plaintiff’s application for a constitutional or other writ filed on 14 January 2019 is dismissed with costs.

I publish those orders.

The plaintiff requested that the first defendant (“the Minister”[1]) exercise the non‑compellable powers conferred upon him by s 48B or s 417 of the Migration Act 1958 (Cth) in favour of the plaintiff. The request was not referred to the Minister. On 14 January 2019, the plaintiff filed an application for a constitutional or other writ, supported by an affidavit affirmed by the plaintiff on 14 January 2019, seeking to challenge the decision not to refer the request to the Minister[2]. The defendants filed a response on 31 January 2019. The response was served on the plaintiff in accordance with r 9.05.1 of the High Court Rules 2004 (Cth). The plaintiff then filed submissions on 21 March 2019 and further submissions on 1 April 2019.

[1]The request was made to the Minister for Home Affairs.  

[2]The other named defendants are the Secretary for the Department of Home Affairs and “Dusica of the Ministerial Intervention of the Department of Home Affairs”.  

The Minister submitted that the materials filed by the plaintiff did not disclose an arguable basis for the relief sought and that the Court should dismiss the plaintiff’s application without listing the application for hearing[3].  The application was listed for hearing.  The plaintiff appeared, relied on the materials he had already filed and made short oral submissions at the hearing.  The defendants were represented.

[3]Pursuant to High Court Rules, r 25.09.1.

The plaintiff’s application should be dismissed. It does not disclose an arguable basis for the relief sought. There is no evidence that the plaintiff’s request for intervention under s 417 of the Migration Act has been determined but, even if it had been determined, the plaintiff’s request for the Minister to exercise that non‑compellable power was misconceived because s 417 does not apply to the plaintiff.

The plaintiff applied for a Safe Haven Enterprise Visa on 22 September 2015. On 9 May 2016, a delegate of the Minister refused the visa application. That decision was reviewed by the Immigration Assessment Authority (“the IAA”) pursuant to the procedures in Pt 7AA of the Migration Act.  On 24 June 2016, the IAA affirmed the delegate’s decision not to grant the plaintiff the visa.  The plaintiff’s application for judicial review was dismissed by the Federal Circuit Court of Australia (Judge Smith) on 20 October 2017.  The plaintiff’s appeal to the Federal Court of Australia (Bromwich J) was dismissed on 1 March 2018.

On 19 June 2018, the plaintiff’s representative wrote to the Minister requesting the exercise of the non‑compellable power in s 417 of the Migration Act to grant the plaintiff a visa or, it was inferred from the letter, the exercise of the non-compellable power in s 48B of the Migration Act to allow him to lodge a further application for a Safe Haven Enterprise Visa.

On 17 December 2018, an officer of the Department of Home Affairs responded to the plaintiff’s request in so far as the request sought intervention under s 48B of the Migration Act.  The letter stated that the “request was assessed against the Minister’s Guidelines − s48A cases and requests for s48B Ministerial intervention, however, it did not meet the Guidelines” and had been finalised without any referral.  On 14 January 2019, the plaintiff filed this application.

Section 417(1) of the Migration Act confers on the Minister a non‑compellable power to substitute his own decision for a decision of the Administrative Appeals Tribunal (“the AAT”) made under s 415 of the Act.  Neither section applies to the plaintiff.  He was a “fast track review applicant” and the delegate’s decision to refuse the plaintiff’s visa was a “fast track reviewable decision”[4]. The plaintiff’s application was reviewed by the IAA under Div 7AA of the Migration Act, not by the AAT under Div 7 of the Migration Act. And, no less importantly, there is no equivalent power for the Minister to substitute his own decision for the decision of the IAA. As the Minister submitted, that was why the Department’s response referred only to the guidelines applicable to the exercise of the non‑compellable power under s 48B of the Migration Act.

[4]Both terms defined in Migration Act, s 5(1).

It is therefore necessary to address s 48B of the Migration Act. The plaintiff submitted that the Minister cannot delegate the power conferred by s 48B; the assessment of his request by officers of the Department was an exercise of non‑statutory executive power; the Department (and the third defendant in particular) had failed to afford the plaintiff procedural fairness and “failed to make inquiries according to law”; and the second and third defendants had failed to apply the Minister’s guidelines when assessing the plaintiff’s request. The decision of this Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship[5] is a complete answer.

[5](2012) 246 CLR 636; [2012] HCA 31.

The first two submissions are not in dispute; the Minister cannot delegate the power conferred by s 48B(1)[6] and the assessment of the request by officers of the Department (including the third defendant) was an exercise of non-statutory executive power.  But those submissions do not assist the plaintiff.  The Minister has no obligation to consider exercising the power even where, as here, a request is made to him to exercise that power[7].  The Minister can, and did, develop guidelines to inform the circumstances in which he would consider exercising the power.  And, when officers of the Department assess the facts of a particular case against those guidelines, that does not constitute an impermissible delegation by the Minister of his powers[8]. 

[6]Migration Act, s 48B(2).

[7]Migration Act, s 48B(6).

[8]See Plaintiff S10/2011 (2012) 246 CLR 636 at 655 [51], 665 [91].

The plaintiff’s contention that the Department (and the third defendant in particular) failed to afford the plaintiff procedural fairness is misconceived. The power under s 48B(1) is not conditioned by an obligation to afford procedural fairness to persons in the plaintiff’s position[9].  The decision in Plaintiff S10/2011 is not relevantly distinguishable, and the plaintiff has not identified any amendments to the Migration Act which would suggest that the conclusions reached in Plaintiff S10/2011 no longer apply.

[9]Plaintiff S10/2011 (2012) 246 CLR 636 at 654-655 [50]‑[51], 667‑668 [99]‑[100], 671-672 [114], 672-673 [118]-[119].

This Court’s decision in Minister for Immigration and Border Protection v SZSSJ[10] does not lead to a different conclusion.  The Minister, in that case, had personally decided to consider whether to exercise his non‑compellable powers under the Migration Act.  Officers of the Department then undertook international treaties obligations assessments to determine whether Australia’s international obligations had been engaged in respect of the applicants, in order to assist the Minister in his consideration[11].  Procedural fairness was held to be an implied condition of the officers’ exercise of statutory power to conduct the assessment where the exercise of that power was apt to prolong immigration detention[12].  The circumstances of this case are quite different:  the Minister did not decide to consider whether to exercise his non‑compellable powers; the departmental officers were, as agreed by the parties, exercising non-statutory executive power; and the letter dated 17 December 2018 did not contain any representations about future process.

[10](2016) 259 CLR 180; [2016] HCA 29.

[11]SZSSJ (2016) 259 CLR 180 at 189 [9]-[10], 195 [33].

[12]SZSSJ (2016) 259 CLR 180 at 205-206 [77].

The contentions that the officers (and the third defendant in particular) “failed to make inquiries according to law” and failed to apply the guidelines are no more than assertions. As the Minister submitted, the plaintiff has not identified the source of any obligation to make inquiries or identified any specific inquiry which he contends should have been made. Further, the letter dated 17 December 2018 expressly stated that the plaintiff’s request had been assessed against the guidelines applicable to requests for Ministerial intervention under s 48B of the Migration Act, and that the request did not meet those guidelines.  The plaintiff has not established that that statement was incorrect.

Finally, the plaintiff asserts that “due to [a] change of circumstances, he had presented new information since the prior request made by him for 48B [sic]”. This assertion was not raised by the plaintiff as a ground of the application, but is addressed for completeness. The plaintiff refers to the Department of Home Affairs website which states that, if an applicant for the exercise of the non-compellable power under s 48B is from one of a number of countries listed on that website, the application will not be referred to the Minister[13].  The plaintiff contends that Sri Lanka, of which the plaintiff claims he is a national, is not one of the listed countries.  This aspect of the plaintiff’s application does not assist the plaintiff.  As stated, the Minister has no obligation to consider exercising the power.

[13]See Department of Home Affairs, Onshore Protection:  You have Previously Been Refused a Protection Visa or Your Protection Visa has been Cancelled, 13 February 2019, available at:  < those reasons, the application is dismissed with costs.

AT 9.32 AM THE MATTER WAS CONCLUDED