Plaintiff S199/2018 v Minister for Home Affairs & Ors

[2019] HCATrans 36

[2019] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S199 of 2018

B e t w e e n -

PLAINTIFF S199/2018

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 first defendant’s 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 10 August 2012 as an unauthorised maritime arrival.  On 17 January 2013, he lodged an application for a Protection (Class XA) visa (“Visa”).

On 20 December 2013, the Visa application was refused by a delegate of the Minister for Immigration and Border Protection.  On 18 May 2015, the decision of the delegate to refuse the Visa application was affirmed by the Refugee Review Tribunal (“Tribunal”).  On 27 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 6 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 the guidelines. The letter continued saying that the Department had “finalised [the] request without referral” to the Minister.

There is no evidence of a response by the Department to the plaintiff’s request for the exercise of the non-compellable power in s 48B of the Migration Act.

On 27 July 2018, the plaintiff filed the present application in this Court for an order to show cause.  The first defendant entered an appearance, and the second and third defendants entered submitting appearances.  The plaintiff did not attend the hearing yesterday and gave no reason in advance, or subsequently, for his non-attendance.  I would dismiss the application for the following reasons.

The relief sought by the plaintiff, and the grounds of relief, are relevantly identical to those in Plaintiff S198/2018 v Minister for Home Affairs & Ors.  As in that proceeding, the first defendant seeks to have the application dismissed on the basis that none of the grounds disclose an arguable basis for the relief sought.  My reasons in relation to each of the grounds of relief are therefore the same.  However, for the convenience of the plaintiff in this matter, I summarise those reasons below.

The relief sought by the plaintiff, namely constitutional writs of certiorari and mandamus, and injunction and declarations, concern the refusal of the Department to refer to the Minister the plaintiff’s requests under ss 48B and 417 of the Migration Act. The first two grounds for relief are that (i) the Minister cannot delegate to the third defendant the powers conferred by ss 48B, 195A, 351 and 417 of the Migration Act, and (ii) 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, although as I explained in Plaintiff S198/2018 v Minister for Home Affairs & Ors, (ii) is not a stand-alone ground for relief.

The powers relevant to the plaintiff, namely ss 48B and 417, must be exercised by the Minister personally[1] but the Minister has no obligation to consider exercising the powers, even upon request[2].  In this case, as a consequence of the Department’s application of the guidelines, the Minister has not considered whether to exercise his powers.  In Plaintiff S10/2011 v Minister for Immigration and Citizenship[3], it was held that guidelines could be developed for the Department to assess whether a case should be considered by the Minister and that such guidelines are not an impermissible delegation by the Minister of his powers[4].

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

The plaintiff’s third and fourth grounds, again the same as those in Plaintiff S198/2018 v Minister for Home Affairs & Ors, 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”. But, to reiterate, the Minister is not required to consider whether to exercise his powers in ss 48B(1) or 417(1). Neither provision attracts requirements of procedural fairness including any duty to make inquiries in the process by which officers of the Department consider a request for the Minister to exercise his powers[5].  Hence, neither the omission by the Minister to consider the plaintiff’s request nor the consideration by officers of the Department involves any failure to afford procedural fairness nor any violation of any duty to make inquiries.

[5]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 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 must pay the first defendant’s costs of the proceeding.

AT 9.34 AM THE MATTER WAS CONCLUDED