Plaintiff S53-2019 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors

[2019] HCATrans 136

[2019] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S53 of 2019

B e t w e e n -

PLAINTIFF S53/2019

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

LAUREN OF THE MINISTERIAL INTERVENTION IN THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 25 JUNE 2019, AT 9.14 AM

Copyright in the High Court of Australia

HIS HONOUR:   In this matter the order that I make is that the amended application is dismissed with costs.  I publish my reasons and I direct that those reasons be incorporated into the transcript.

On 5 March 2019, the plaintiff commenced this proceeding in the original jurisdiction of the High Court by filing an application for a constitutional or other writ. On 9 May 2019, the plaintiff filed an amended application seeking the same relief on the same grounds as in his original application. The amended application concerns a request by the plaintiff that the Minister for Immigration, Citizenship and Multicultural Affairs exercise his power of intervention under s 48B or s 417 of the Migration Act 1958 (Cth) (“the Act”).

The plaintiff is a Sri Lankan citizen who arrived in Australia in September 2012.  In January 2016, he made a valid application for a protection visa.  In August 2016, a delegate of the Minister refused that application.  The Immigration Assessment Authority affirmed the delegate’s decision in January 2017. 

The plaintiff sought judicial review of the Authority’s decision in the Federal Circuit Court.  He was unsuccessful.  He appealed to the Federal Court.  He was again unsuccessful.  He then sought special leave to appeal from the Federal Court to this Court, which was refused in September 2018: AQR17 v Minister for Immigration and Border Protection [2018] HCASL 261.

The following month, the plaintiff sought the personal intervention of the Minister. By letter dated 7 October 2018, he requested that the Minister allow him to submit a further protection visa application by an exercise of power under s 48B of the Act or to substitute the Authority’s decision for a more favourable decision by an exercise of power under s 417 of the Act. By letter dated 25 February 2019, a departmental officer informed the plaintiff that his request for an exercise of power under s 48B had been finalised without referral to the Minister. The fate of the plaintiff’s request for a more favourable decision by an exercise of power under s 417 of the Act does not appear from the evidence. But as the Minister’s power under s 417 can be exercised only in relation to a decision of the Administrative Appeals Tribunal, it is plain that the power cannot be exercised in relation to the plaintiff.

The plaintiff’s contentions in support of the amended application follow the template of those considered and rejected in the numerous cases recently collected by Plaintiff S322‑2018 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 96. They are: first, that the Minister could not delegate to a departmental officer the exercise of his power under s 48B of the Act; second, that the assessment process conducted by the departmental officer involved the exercise of non‑statutory executive power; third, that the departmental officer denied the plaintiff procedural fairness; and fourth, that the departmental officer “failed to make inquiries according to law and procedural fairness”.

For reasons I and other members of the Court have repeatedly explained, the contentions do not support the relief sought by the plaintiff.  

As to the first, there has here been no purported delegation of the Minister’s power under s 48B of the Act. As to the second, it does not follow from the circumstance that the departmental officer exercised non‑statutory executive power that the officer acted beyond power, or made any legal error, in refusing to refer the plaintiff’s request to the Minister. The third and fourth are foreclosed by the holding of this Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 that the consideration by departmental officers of requests for the Minister to consider exercising his power under s 48B of the Act is not conditioned by requirements of procedural fairness.

For completeness, I record the plaintiff’s further contention that changed circumstances in Sri Lanka since the time of the delegate’s and the Authority’s decisions mean that the Authority’s decision has “become” legally unreasonable.  The contention is devoid of legal merit.  Whether the Authority’s decision was legally unreasonable can be assessed only by reference to the facts as at the time of that decision.

The amended application does not disclose an arguable basis for the relief sought.  The plaintiff says that a costs order in the Minister’s favour would cause him financial hardship.  That circumstance alone provides no basis on which to interfere with the ordinary approach as to costs. 

The amended application will be dismissed with costs under r 25.09.1 of the High Court Rules 2004 (Cth).

AT 9.14 AM THE MATTER WAS CONCLUDED