Plaintiff S2/2019 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors

[2019] HCATrans 29

[2019] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S2 of 2019

B e t w e e n -

PLAINTIFF S2/2019

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

RASHMI OF THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 FEBRUARY 2019, AT 10.06 AM

Copyright in the High Court of Australia

HIS HONOUR:   In this matter the orders that I make are as follows:

1.The application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2.The plaintiff is to pay the costs of the first defendant.

I publish my reasons and I direct that those reasons be incorporated into the transcript.

This proceeding was commenced in the High Court’s original jurisdiction by an application for constitutional writs and declaratory relief filed on 3 January 2019. The application arises out of a request by the plaintiff to the Minister for Immigration, Citizenship and Multicultural Affairs that the Minister exercise the non‑compellable powers under s 48B or s 417 of the Migration Act 1958 (Cth), either to lift a statutory bar to allow the plaintiff to lodge a further application for a protection visa or alternatively to substitute for a decision of the Administrative Appeals Tribunal a decision granting him a protection visa. Specifically, the plaintiff seeks judicial review of determinations by departmental officers not to refer the plaintiff’s request for intervention under s 48B or s 417 of the Migration Act to the Minister.

The plaintiff is a Sri Lankan citizen of Tamil ethnicity.  On 3 January 2014, his application for a protection visa was refused by a delegate of the Minister.  That decision was affirmed by the Administrative Appeals Tribunal on 7 March 2016, and the plaintiff unsuccessfully sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia (ASD16 v Minister for Immigration & Border Protection [2016] FCCA 3091) and unsuccessfully appealed from the Federal Circuit Court’s decision to the Federal Court of Australia (ASD16 v Minister for Immigration and Border Protection [2018] FCA 1165).

By letter dated 28 November 2018, the plaintiff wrote to the Minister requesting intervention under s 48B or s 417 of the Migration Act. By letter dated 18 December 2018, an officer of the Department of Home Affairs notified the plaintiff that his request for intervention under s 417 had been assessed as not meeting Ministerial guidelines describing the types of cases that should be referred to the Minister, with the result that the request had been finalised without referral to the Minister. By letter dated 30 January 2019, the plaintiff was notified by another officer of the Department that his request for intervention under s 48B had been similarly finalised without referral.

The application is in large part identical to the application in the case of Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs, which I also decide today.  It seeks relief on four grounds. 

First, the plaintiff contends that the Minster cannot delegate to an officer of the Department the powers conferred on the Minister by ss 48B and 417 of the Migration Act, and that, as such, the determinations not to refer the plaintiff’s request to the Minister were made without jurisdiction.  The second ground is that the refusal of the officer who made the 18 December 2018 determination (and, presumably, the officer who made the 30 January 2019 determination) to refer the plaintiff’s request to the Minister was not undertaken under the Migration Act, but rather involved an exercise of non-statutory executive power under s 61 of the Constitution.  The third and fourth grounds are that the officer who made the 18 December 2018 determination (and again, presumably, the officer who made the 30 January 2019 determination) failed to afford him procedural fairness and “failed to make inquiries according to law and procedural fairness”.

For the reasons I give in Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs, and for the reasons I gave in Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168, none of those grounds raises an arguable case for the relief sought.

The application will be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth). As in Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs, the plaintiff asserts in the application that an order for costs against him would cause him financial hardship.  That is no reason why the ordinary rule as to costs should not apply.  The application will be dismissed with costs.

The Court will now adjourn.

AT 10.07 AM THE MATTER WAS CONCLUDED