Plaintiff S38 of 2016 v Minister for Immigration and Border Protection

[2016] HCATrans 215

[2016] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S38 of 2016

B e t w e e n -

PLAINTIFF S38 OF 2016

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 SEPTEMBER 2016, AT 10.39 AM

Copyright in the High Court of Australia

MR T. REILLY:   If the Court pleases, I appear for the defendant.  (instructed by DLA Piper Australia)

HER HONOUR:   Yes.  The plaintiff is, I understand, in immigration detention.

MR REILLY:   That is so.

HER HONOUR:   I understand that arrangements were made to bring the plaintiff to Court for today’s hearing and I am informed by Registry staff that the plaintiff indicated he did not wish to be brought.  Is that your understanding, Mr Reilly?

MR REILLY:   Yes, that is so, your Honour.

HER HONOUR:   Yes, very well.  Mr Reilly, in written submissions filed on 1 September 2016, the Minister submits that the proceedings should be summarily dismissed.

MR REILLY:   Yes, your Honour.

HER HONOUR:   And that is your application?

MR REILLY:   Yes, your Honour, or perhaps it does not need to be summarily dismissed but simply the order to show cause should be dismissed – the application for an order to show cause should be dismissed.  We have not put on a motion for summary dismissal just because this matter was listed before we did that.

HER HONOUR:   Yes. 

MR REILLY:   Your Honour, perhaps I should take the opportunity to read the affidavit of Chloe Ann Hillary, filed 1 September 2016.

HER HONOUR:   Yes, very well. 

On 10 February 2016, the plaintiff filed an application for an order to show cause claiming relief by way of prohibition, certiorari and mandamus directed to the defendant, the Minister for Immigration and Border Protection, with respect to decisions made by the Minister declining to exercise or to consider exercising his powers under sections 48B, 195A and 417 of the Migration Act 1958 (Cth).

The plaintiff has not taken any step in the proceedings since filing the application and supporting affidavit.  The plaintiff is in immigration detention.  Arrangements were made for the plaintiff to be brought to Court for today’s hearing.  The Registry was informed that the plaintiff had signified that he did not wish to be brought to Court. 

In written submissions filed on 1 September 2016, the Minister foreshadowed his intention to invite the Court to dismiss the application on the ground that the proceeding is so clearly untenable that it cannot possibly succeed.  That is the application now made.

The plaintiff who was born in Samoa arrived in Australia with his father on a visitor visa on 17 April 1987 aged five years.   His father returned to New Zealand shortly thereafter leaving the plaintiff in the care of relatives.  The plaintiff claims to have been neglected and abused and that he left his relative’s care at the age of 13, thereafter living on the streets.  He says that in this way he became involved in criminal activity.  He has a number of convictions for offences, including offences of violence and dishonesty.

In December 2007, officers of the Department of Immigration and Border Protection became aware that the plaintiff was in custody.  The plaintiff applied for a partner visa, which application was refused in February 2008.  On 29 May 2012, the plaintiff applied for a protection visa, which application was refused on 11 July 2012. 

It appears that the plaintiff based his claim on the fact that he has no ties to Samoa, cannot speak Samoan and has no means of support available to him in Samoa.  He expressed fears for his personal security if returned to Samoa based on his imputed Australian nationality.  He also claimed to fear significant harm if returned to Samoa within the meaning of the complementary protection criterion under the Migration Act. 

The Refugee Review Tribunal affirmed the delegate’s decision on 13 August 2012.  The Tribunal was not satisfied that the plaintiff’s claims engaged Australia’s protection obligations.  An application for judicial review of the Refugee Review Tribunal’s decision was unsuccessful in the Federal Circuit Court.  On 6 November 2013, the Federal Court of Australia dismissed an appeal from that decision.  On 12 March 2014, this Court refused special leave to appeal.

On 14 February 2013, the plaintiff married an Australian citizen and they have an infant child, Mia. The plaintiff made a further application for a partner visa. This application was found to be invalid because the plaintiff had already made an application for a partner visa which had been refused. On 15 July 2013, the plaintiff applied for a bridging visa. On 11 September 2013, the application was refused because the plaintiff did not pass the character test in section 501 of the Migration Act. 

On 19 November 2013, the Administrative Appeals Tribunal affirmed this decision.  An application for judicial review of the Tribunal’s decision in the Federal Court of Australia was unsuccessful.  So too was an application from that decision to the Full Court of the Federal Court.  On 5 March 2015, an application for special leave was dismissed. 

By letter dated 2 September 2015, the plaintiff sought ministerial intervention. He referred to his history of childhood neglect and conflict with the law. He stated that he had severed his ties with former associates and that he now enjoyed the love and support of his wife and daughter. He asked the Minister to intervene under sections 417, 195 or 197. The plaintiff did not make any protection claims in this letter, nor did he ask the Minister to make a determination under section 48B lifting the bar on making an application for a protection visa.

The plaintiff’s case was assessed by a departmental officer against the guidelines for ministerial intervention under section 48B. The guidelines provide that a section 48B request should only be referred to the Minister if it contains additional information which is likely to enhance the person’s chances of making a successful claim for protection under section 36(2) of the Migration Act . The officer noted that the plaintiff had not provided any new information that would enhance his chances of making the successful protection visa application. The plaintiff’s request was to grant him a visa or to allow him to lodge a partner visa and to consider the best interests of his Australian child. These claims, it was noted, would be considered as part of the plaintiff’s ongoing section 195A request. On 7 October 2015, the officer recommended that the plaintiff’s case not be referred for consideration under section 48B because it did not meet the Minister’s guidelines. That recommendation was endorsed by the director of the ministerial intervention section.

A departmental briefing note to the Minister was prepared with respect to the Minister’s possible intervention under sections 417 and 195A. On 6 January 2016, the Minister determined not to exercise his power under section 417 and not to consider intervening under section 195A of the Migration Act. By letter dated 11 January 2016, the plaintiff was advised of the Minister’s decisions. In that letter the plaintiff was also advised that the assessment that his case was not within the section 48B guidelines had been provided to the Minister when the Minister considered his case.

The plaintiff’s claims for relief are with respect to the Minister’s personal decisions and the determination not to refer the plaintiff’s case for consideration of raising the statutory bar under section 48B. The first ground, which asserts a denial of procedural fairness, is directed to the decision of 7 October 2015 and simply asserts that the plaintiff “met the provisions of the guidelines”. The second ground is directed to the Minister’s decisions not to intervene under section 417 and not to consider the exercise of his power under section 195A. Each decision is challenged as legally unreasonable. The plaintiff asserts that no decision‑maker would have so decided and that each decision is “unfair, irrational and plainly unjust and lacks any intelligible reasoning”.

The contention that the Minister was required to afford the plaintiff procedural fairness in determining whether to exercise or to consider exercising his various dispensing powers faces the hurdle of the decision in Plaintiff S10/2011[1]. The contention that the delegate “applied the wrong law and misconstrued the applicable law by their failure to refer my request” for section 48B ministerial intervention is based on the assertion that “I met the provisions of the guidelines”.

[1] (2012) 246 CLR 636.

Assuming for the sake of argument that a challenge to a decision not to refer a matter to the Minister conformably with the section 48B guidelines is capable of producing a legal consequence, the proposed challenge would seem to be unsustainable: the plaintiff did not provide information in support of any protection claim.

Upon the further assumption that the Minister’s decisions not to intervene under section 417 or to consider exercising his powers under section 195A are amenable to review, I accept the Minister’s submission that no arguable basis for contending that either was unreasonable in the sense explained in Minister for Immigration and Citizenship v Li[2] is disclosed.  Moreover, mandamus does not lie to compel the Minister to consider the exercise of his dispensing powers and it follows that there is no utility in the grant of certiorari[3].

[2] (2013) 249 CLR 332.

[3] Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 393 - 394 [19] per Gleeson CJ, 403 [54] per Gaudron and Gummow JJ, 466 [265] per Hayne J; Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at 358 [100].

The power to dismiss a proceeding summarily requires the clearest of demonstration of the futility of the claim.  I consider that this high threshold is met and that it is appropriate to make the order that the Minister seeks.  For these reasons, there will be the following order:  the application is dismissed with costs. 

Thank you, Mr Reilly. 

Adjourn the Court.

AT 10.54 AM THE MATTER WAS CONCLUDED