Plaintiff S198/2018 v Minister for Home Affairs & Ors

[2019] HCATrans 35

[2019] HCATrans 035

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S198 of 2018

B e t w e e n -

PLAINTIFF S198/2018

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

RASHMI IN THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 1 MARCH 2019, AT 9.33 AM

Copyright in the High Court of Australia

HIS HONOUR:   This application for an order to show cause was heard by me yesterday.  For the reasons that I now publish, I would dismiss the application.

The orders are:

1.The application for an order to show cause filed on 27 July 2018 be dismissed.

2.The plaintiff pay the defendants’ costs.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

The plaintiff is a citizen of Sri Lanka.  He arrived in Australia on 16 August 2012 as an unauthorised maritime arrival.  On 21 December 2012, he lodged an application for a Protection (Class XA) visa (“Visa”).

On 9 August 2013, the Visa application was refused by a delegate of the Minister for Immigration and Citizenship.  On 4 February 2015, the decision of the delegate to refuse the Visa application was affirmed by the Refugee Review Tribunal (“Tribunal”).  On 20 July 2016, an application by the plaintiff for judicial review of the Tribunal’'s decision in the Federal Circuit Court of Australia was dismissed.  On 7 March 2018, an appeal to the Federal Court of Australia was dismissed.  On 13 June 2018, an application for special leave to appeal to this Court was dismissed.

On 27 June 2018, the plaintiff wrote to the first defendant, the Minister for Home Affairs (“the Minister”), requesting the exercise of the non-compellable power in s 417 of the Migration Act 1958 (Cth) to grant the plaintiff a visa, or alternatively, requesting the Minister to exercise the non‑compellable power in s 48B of the Migration Act to permit the plaintiff to lodge a further application for a protection visa.

On 9 July 2018, an officer from the Department of Home Affairs (“the Department”), named as the third defendant to this proceeding, responded in writing by post to the plaintiff’s request for Ministerial intervention under s 417 of the Migration Act. The officer said in the letter that the Department had assessed the plaintiff’s request to determine whether it met the “Minister’s guidelines on ministerial powers (s 351, s 417, s 501J)” for the request to be referred to the Minister and that it did not meet those guidelines. The letter continued saying that the Department had “finalised [the] request without referral” to the Minister.

On 21 August 2018, the Department responded in writing by email to the plaintiff’s request for Ministerial intervention in respect of s 48B of the Migration Act. A letter attached to the email said that the plaintiff’s request did not meet the “Minister's guidelines – s 48A cases and requests for s 48B Ministerial Intervention” for referral to the Minister and that “[t]he Department has, therefore, finalised the request without referral” to the Minister.

On 27 July 2018, in between the time of the Department’s response to the s 417 application and the Department’s response to the s 48B application, the plaintiff filed the present application in this Court for an order to show cause. The plaintiff seeks writs of certiorari and mandamus, as well as an injunction and declarations relating to the refusal to refer to the Minister the plaintiff’s requests under ss 48B and 417 of the Migration Act.  The plaintiff did not attend the hearing of his application yesterday and no reason was given in advance for his non‑attendance.  I would dismiss the application for the following reasons.

The plaintiff relies upon four grounds in his written application.  The defendants seek to have the application for an order to show cause dismissed on the basis that none of the grounds disclose an arguable basis for the relief sought.  Although the application was filed prior to promulgation of the High Court Amendment (Constitutional Writs and Other Matters) Rules 2018 (Cth), it falls to be considered under the new Pt 25 of the High Court Rules 2004 (Cth): see r 61.01(a).

The plaintiff’s first ground is that the Minister cannot delegate to the third defendant the powers conferred by ss 48B, 195A, 351 and 417 of the Migration Act. The relevant powers in this proceeding are those under ss 48B and 417. Although the powers conferred by ss 48B and 417 must be exercised by the Minister personally[1], the Minister has no obligation to consider exercising the powers, even where a request is made of him to exercise those powers[2].  The assumption underlying the plaintiff’s first ground is that it is an impermissible delegation for officers of the Department to perform the task of assessing whether a case falls within Ministerial guidelines for consideration by the Minister.  In Plaintiff S10/2011 v Minister for Immigration and Citizenship[3], this Court held that it was permissible for the Minister to develop such guidelines to operate as a “screening mechanism”[4], and that the performance of the task of assessing whether a case falls within Ministerial guidelines for consideration by the Minister is not an impermissible delegation by the Minister of his powers[5].  The Minister’s powers have not been engaged at all.  All that has happened is the delegate has decided not to refer the case to the Minister[6].

[1]Migration Act 1958 (Cth), ss 48B(2), 417(3).

[2]Migration Act, ss 48B(6), 417(7).

[3](2012) 246 CLR 636; [2012] HCA 31 ("Plaintiff S10/2011").

[4]Plaintiff S10/2011 (2012) 246 CLR 646 at 653 [46].

[5]Plaintiff S10/2011 (2012) 246 CLR 646 at 653 [46], 655 [51]-[52], 665 [91], 673 [119].

[6]Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168 at lines 100-103.

The plaintiff’s second ground for the relief sought is that the assessment of the plaintiff’s request by the third defendant was an exercise of non‑statutory executive power under s 61 of the Constitution.  In Plaintiff S10/2011 French CJ and Kiefel J said that the assessment process under the “guidelines” by officers of the Department may be regarded as an executive function incidental to the administration of the Migration Act[7] – although as Gummow, Hayne, Crennan and Bell JJ observed, that function could not be “divorced from the exercise of authority conferred by [the Migration Act]”[8].  The mere characterisation of this exercise of power as an exercise of non-statutory executive power is not, by itself, a sufficient basis for relief.

[7]Plaintiff S10/2011 (2012) 246 CLR 646 at 655 [51].

[8]Plaintiff S10/2011 (2012) 246 CLR 636 at 665 [93].

The plaintiff’s third and fourth grounds assert that the third defendant failed to afford the plaintiff procedural fairness and that the third defendant “failed to make inquiries according to law and procedural fairness”.  These grounds must also be dismissed.  The process of consideration by officers of the Department of a request for the Minister to exercise his powers does not require the observance of procedural fairness by those officers or by the Minister[9] including any duty to make inquiries according to law, as to which the plaintiff does not suggest what inquiries should have been made.

[9]Plaintiff S10/2011 (2012) 246 CLR 636 at 654-655 [50]-[51], 668 [100], 671-672 [114], 672-673 [118]-[119]. See also Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 199 [48], 200 [53]-[54]; [2016] HCA 29.

The decision in Ordonez v Minister for Immigration and Multicultural Affairs[10], to which the plaintiff referred in his affidavit filed on 27 July 2018, is not inconsistent with any of these reasons and does not provide any support for the application. The application for an order to show cause filed on 27 July 2018 provides no arguable basis for the relief sought. It must be dismissed pursuant to r 25.09.3 of the High Court Rules.  The plaintiff is to pay the defendants’ costs of the proceeding.

[10][2000] FCA 736.

AT 9.33 AM THE MATTER WAS CONCLUDED