Plaintiff S322-2018 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors

[2019] HCATrans 96

[2019] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S322 of 2018

B e t w e e n -

PLAINTIFF S322/2018

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL 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

AT CANBERRA ON WEDNESDAY, 15 MAY 2019, AT 9.35 AM

Copyright in the High Court of Australia

EDELMAN J:   On 11 December 2018 the applicant filed an application for a constitutional or other writ.  For the reasons that I now publish, I would dismiss the application.

The orders are:

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

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 20 June 2012 as an unauthorised maritime arrival.  In November 2012, the plaintiff lodged an application for a Protection (Class XA) visa ("Protection Visa").  On 11 December 2013, a delegate of the Minister for Immigration and Border Protection refused the application.  On 21 June 2016, the Administrative Appeals Tribunal affirmed the delegate's decision.  On 5 December 2017, the Federal Circuit Court of Australia dismissed the plaintiff's application for judicial review of the Administrative Appeals Tribunal's decision.  On 23 May 2018, an appeal to the Federal Court of Australia was dismissed.  On 12 September 2018, an application for special leave to appeal to this Court was dismissed.

On 6 October 2018, the plaintiff wrote to the Minister for Immigration, Citizenship and Multicultural Affairs ("the Minister") requesting the Minister to exercise the power under s 417 of the Migration Act 1958 (Cth) to grant him a visa or, alternatively, to exercise the power under s 48B of the Migration Act to allow the plaintiff to lodge a further application for a Protection Visa. On 14 November 2018, an officer of the Department of Home Affairs ("the Department"), named as the third defendant to this application, responded in a letter to the plaintiff explaining that the request for Ministerial intervention under s 417 of the Migration Act did not meet the guidelines for referral to the Minister and that the request had been finalised without referral to the Minister. On 8 January 2019, another officer of the Department responded in a letter sent by email to the plaintiff explaining that the request for intervention under s 48B did not meet the guidelines for referral to the Minister and that the request had been finalised without referral to the Minister.

On 11 December 2018, in between the time of the Department's response to the s 417 application and the time of the Department's response to the s 48B application, the plaintiff filed the present application for a constitutional or other writ in the original jurisdiction of this Court. The plaintiff seeks writs of certiorari and mandamus, and as well an injunction and declarations, concerning the refusal of the Department to refer to the Minister the plaintiff’s requests under ss 48B and 417 of the Migration Act. The 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; (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; (iii) that the third defendant failed to afford the plaintiff procedural fairness; and (iv) that the third defendant "failed to make inquiries according to law and procedural fairness".

The plaintiff's application is in a familiar, template form for relief.  Applications relying upon very similar, or identical, grounds have been dismissed in numerous cases recently by this Court, including:  Plaintiff S277/2017 v Minister for Immigration and Border Protection [2018] HCATrans 163 (Gordon J); Plaintiff S118/2018 v Minister for Home Affairs [2018] HCATrans 159 (Gordon J); Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168 (Gageler J); Plaintiff S122/2018 v Minister for Home Affairs [2018] HCATrans 209 (Nettle J); Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 28 (Gageler J); Plaintiff S2/2019 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 29 (Gageler J); Plaintiff S198/2018 v Minister for Home Affairs [2019] HCATrans 35 (Edelman J); Plaintiff S199/2018 v Minister for Home Affairs [2019] HCATrans 36 (Edelman J); Plaintiff S7/2019 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 61 (Gordon J); Plaintiff S11/2019 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 62 (Gordon J).

For the reasons explained in all of those applications referred to above:  the legal proposition inherent in (i) is not correct because the failure to refer a matter to the Minister involves no delegation of the Minister's power; the legal proposition in (ii) is not a sufficient basis for any relief; and the third defendant's actions the subject of (iii) and (iv) are not subject to duties of procedural fairness.  The application discloses no arguable basis for any of the relief sought.  The orders that I therefore make are:

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

2.        The plaintiff pay the defendants' costs.

AT 9.35 AM THE MATTER WAS CONCLUDED