Plaintiff S206/2017 v Minister for Immigration and Border Protection & Ors

[2019] HCATrans 26

[2019] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S206 of 2017

B e t w e e n -

PLAINTIFF S206/2017

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Defendant

RASHMI OF THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 FEBRUARY 2019, AT 10.04 AM

Copyright in the High Court of Australia

HIS HONOUR:   Under r 25.09.1 of the High Court Rules 2004 (Cth), the application for an order to show cause is dismissed with costs.

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

A Sri Lankan citizen, the plaintiff arrived in Australia in 2012 and sought protection on the basis of his Tamil ethnicity and imputed support for the Liberation Tigers of Tamil Eelam.  On 7 November 2012, the Refugee Review Tribunal affirmed the decision of a delegate of the then Minister for Immigration and Citizenship refusing his application for a protection visa.

After an unsuccessful application for judicial review to the Federal Circuit Court of Australia (SZSHO v Minister for Immigration and Anor [2013] FCCA 1457) and an unsuccessful appeal from the decision of that Court to the Federal Court of Australia (SZSHO v Minister for Immigration and Border Protection [2014] FCA 535), the plaintiff was refused special leave to appeal to this Court on 15 October 2014 (SZSHO v Minister for Immigration and Border Protection and Anor [2014] HCASL 191).

What followed then was a series of correspondence in which the plaintiff unsuccessfully sought Ministerial intervention under s 48B or s 417 of the Migration Act 1958 (Cth). Following an initial request for Ministerial intervention on 30 October 2014, an officer of the Department of Immigration and Border Protection notified the plaintiff by letter dated 9 December 2014 that the Assistant Minister for Immigration and Border Protection, Senator the Honourable Michaelia Cash, had personally considered his case and decided not to intervene. After a further request dated 24 May 2017, an officer of the Department wrote two letters to the plaintiff on 6 June 2017, advising that his request did not meet Ministerial guidelines which describe the types of cases that should be referred to the Minister, with the result that the request was finalised without referral. Finally, the plaintiff wrote a third letter on 26 June 2017 again requesting Ministerial intervention under s 48B or s 417. By letter dated 7 July 2017, an officer of the Department notified the plaintiff that his request had been assessed as not meeting Ministerial guidelines in relation to s 417 of the Act and had been finalised without being referred to the Minister. By letter dated 12 July 2017, the same officer advised the plaintiff that his request under s 48B had been similarly finalised.

The plaintiff filed an application for an order to show cause in the original jurisdiction of this Court on 3 August 2017. The application indicates that the plaintiff seeks to challenge what he describes as the decision on 7 July 2017 of the relevant departmental officer not to refer the plaintiff’s request for intervention under s 48B or s 417 of the Migration Act to the Minister.  I will treat the application as also extending to a challenge to the refusal on 12 July 2017.

As in the case of Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs, which I also decide today, the plaintiff seeks relief on four grounds formulated in terms very similar to those contained in an application I dismissed last year in Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168.

The first and second grounds are that the Minster could not delegate to the relevant departmental officer the powers conferred by ss 48B and 417 of the Migration Act, and that the departmental officer’s refusal to refer the plaintiff’s request to the Minister involved an exercise of non‑statutory executive power under s 61 of the Constitution.  Each of these propositions is correct, but for the reasons I gave in in Plaintiff S28/2018 v Minister for Home Affairs they do not have the result for which the plaintiff contends.  It does not follow that any officer of the Department acted beyond power by refusing to refer the plaintiff’s request to the Minister.

By grounds three and four, the plaintiff contends that he was denied procedural fairness by the departmental officer and that the officer failed to make inquiries according to law and procedural fairness.  The plaintiff has not specified the nature of the inquiries that the officer ought to have made.  The procedural fairness grounds are again answered by my decision in Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168.

I am satisfied that the application does not disclose an arguable basis for the relief sought. The order I make is that the application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth), with costs.

AT 10.04 AM THE MATTER WAS CONCLUDED