Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors

[2019] HCATrans 28

[2019] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S330 of 2018

B e t w e e n -

PLAINTIFF S330/2018

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

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 I make are as follows:

1.The application is dismissed under r 25.09.1 of the High Court Rules2004 (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.

By an application for a constitutional or other writ filed in the original jurisdiction of the High Court on 13 December 2018, the plaintiff seeks judicial review of what are described in the application as two decisions made by an officer of the Department of Home Affairs on 23 November 2018 not to refer to the Minister for Home Affairs the plaintiff’s requests for the personal intervention of the Minister under ss 417 and 48B of the Migration Act 1958 (Cth).

The plaintiff is a citizen of Sri Lanka. He arrived on Christmas Island in June 2012. In August of that year, the Minister for Immigration and Citizenship exercised his power under s 46A(2) of the Migration Act to allow the plaintiff to lodge an application for a protection visa. The plaintiff did lodge such an application, but his application was refused by a delegate of the Minister on 4 July 2013. The plaintiff applied to the Refugee Review Tribunal for review of that decision. After a regrettable delay of nearly three years, during which the member responsible for the review became unavailable to complete the review and was replaced by another member, the Administrative Appeals Tribunal affirmed the delegate’s decision on 24 March 2016. The plaintiff unsuccessfully sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia, and his appeal from the decision of that Court was dismissed by the Federal Court of Australia on 19 June 2018. By letter dated 26 October 2018, the plaintiff wrote to the Minister requesting the exercise of his powers under s 417 or s 48B.

Sections 417 and 48B of the Migration Act confer powers on the Minister respectively to substitute for a decision of the Tribunal another decision that is more favourable to a visa applicant and to determine that s 48A of the Act, which restricts a person whose application for a protection visa has been refused from making a further application for a protection visa, does not apply to a visa applicant.  Both powers are non‑compellable and must be exercised by the Minister personally.

By letter dated 23 November 2018, an officer of the Department notified the plaintiff that his request for Ministerial intervention under s 417 had been “finalised … without referral”. Although the letter makes no reference to the plaintiff’s request for Ministerial intervention under s 48B, the application and the Minister’s response to it proceed on the basis that that request can be treated as having suffered the same fate.

The relief sought by the plaintiff is on four grounds which are 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.

First, the plaintiff says that the Minister cannot delegate the exercise of his powers under ss 417 and 48B. So much cannot be doubted. But the Minister has not purported to delegate either of his powers in this case. Neither power has been sought to be exercised. The departmental officer in this case decided only not to refer the plaintiff’s request to the Minister. And it is not the case that either s 417 or s 48B requires the Minister personally to consider every request submitted to the Department for intervention under those provisions.

Second, the plaintiff says that the process that has been undertaken by the departmental officer in respect of his requests for intervention was done in the exercise of non‑statutory executive power under s 61 of the Constitution, rather than under the Migration Act.  This proposition can also be accepted, but that does nothing to advance the plaintiff’s case.  The fact that the officer exercised non‑statutory executive power in assessing the plaintiff’s request or requests does not establish any error in what the officer did.

Third, the plaintiff says that the departmental officer denied him procedural fairness.  Fourth, and relatedly, the plaintiff says that the officer failed to make inquiries according to law and procedural fairness.  The problem with both of these arguments is that the officer’s conduct was not subject to the requirements of procedural fairness, as was held in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 and Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29.

As was the case in Plaintiff S28/2018, the plaintiff refers to certain statements of Kiefel J (as her Honour then was) in Ordonez v Minister for Immigration and Multicultural Affairs [2000] FCA 736 at [16]. However, nothing said in that case supports the plaintiff’s application.

Finally, the plaintiff alleges that the departmental officer did not provide the Minister with a sufficient analysis of recent political events in Sri Lanka, especially as those events relate to the Tamil population in the north and east of Sri Lanka. He points to a report prepared by a UN Rapporteur in July 2018 as substantiating his claims for protection. In a somewhat similar vein, in his affidavit filed on 13 December 2018 the plaintiff says that he had “presented new information” to the Minister since the time of what he appears to say was an earlier request for intervention under s 48B of the Act. The suggestion is that this new information was not properly considered or investigated by the officer and that had it been properly considered and investigated it would or at least might have resulted in referral to the Minister. There is no basis for considering that the officer failed to comply with any legal duty in failing to act on the basis of the new information.

For these reasons, I consider that the plaintiff’s application for an order to show cause does not disclose an arguable basis for the relief sought. The application will be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth). The plaintiff asserts in his application that an order for costs against him would cause him financial hardship. That is not a basis on which to depart from the ordinary rule that costs should follow the event. The application having been dismissed, the plaintiff must pay the Minister’s costs of the application.

AT 10.06 AM THE MATTER WAS CONCLUDED