Plaintiff S7/2019 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors

[2019] HCATrans 61

[2019] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S7 of 2019

B e t w e e n -

PLAINTIFF S7/2019

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

DUSICA OF THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 5 APRIL 2019, AT 9.29 AM

Copyright in the High Court of Australia

HER HONOUR:   On 7 January 2019, the plaintiff filed an application for a constitutional or other writ seeking to challenge the decision not to refer to the first defendant the plaintiff’s request that the first defendant exercise the non‑compellable powers conferred on him by section 48B or section 417 of the Migration Act1958 (Cth).

The Minister submitted the application should be dismissed without listing it for hearing because the materials filed by the plaintiff did not disclose an arguable basis for the relief sought.  The application was listed for hearing yesterday and on that day the parties appeared before this Court.

For reasons that I now publish I would dismiss the plaintiff’s application with costs.  I direct that the reasons as published be incorporated into the transcript.  I publish those reasons.

In matter S7 of 2019 the order of the Court is:

1.The plaintiff’s application for a constitutional or other writ filed on 7 January 2019 is dismissed with costs.

I publish those orders.

A request by the plaintiff that the first defendant (“the Minister”[1]) exercise the non-compellable powers conferred upon him by s 48B or s 417 of the Migration Act 1958 (Cth) in favour of the plaintiff was not referred to the Minister. On 7 January 2019, the plaintiff filed an application for a constitutional or other writ, supported by an affidavit affirmed by the plaintiff on 7 January 2019, seeking to challenge the decision not to refer the request to the Minister[2].  The defendants filed their response on 31 January 2019.  The response was served on the plaintiff.  The plaintiff then filed submissions on 25 March 2019 and further submissions on 1 April 2019.

[1]The request was made to the Minister for Home Affairs.

[2]The other named defendants are the Secretary for the Department of Home Affairs and “Dusica of the Ministerial Intervention of the Department of Home Affairs”.

The Minister submitted that the application should be dismissed without listing the application for hearing because the materials filed by the plaintiff did not disclose an arguable basis for the relief sought[3].  The application was listed for hearing.  The plaintiff appeared.  He relied on the materials he had already filed and made short oral submissions.  The defendants were represented at the hearing.

[3]Pursuant to High Court Rules 2004 (Cth), r 25.09.1.

The plaintiff’s application does not disclose an arguable basis for the relief sought, and it must be dismissed. First, there is no evidence that the plaintiff’s request for intervention under s 417 of the Migration Act has been determined. Second, even if that application had been determined, the plaintiff’s request for the Minister to exercise that non‑compellable power was misconceived. Section 417 of the Migration Act does not apply to the plaintiff.

The plaintiff applied for a Safe Haven Enterprise Visa on 15 February 2016. On 7 July 2016, a delegate of the Minister refused the visa application. That decision was reviewed by the Immigration Assessment Authority (“the IAA”) under Pt 7AA of the Migration Act.  On 5 September 2016, the IAA affirmed the delegate’s decision under review.  The plaintiff unsuccessfully applied for judicial review to the Federal Circuit Court of Australia (Judge Street).  The plaintiff’s appeal to the Federal Court of Australia (Griffiths J) was also dismissed.

On 12 May 2018, the plaintiff wrote to the Minister requesting the exercise of the non-compellable power in s 417 of the Migration Act to grant the plaintiff a visa or, alternatively, the exercise of the non‑compellable power in s 48B of the Migration Act to allow him to lodge a further visa application.

On 17 December 2018, an officer of the Department of Home Affairs responded to the plaintiff’s request in so far as the request sought intervention under s 48B of the Migration Act.  The letter stated that the “request was assessed against the Minister’s Guidelines − s48A cases and requests for s48B Ministerial intervention, however, it did not meet the Guidelines” and had been finalised without being referred to the Minister.  On 7 January 2019, the plaintiff filed this application.

Section 417(1) of the Migration Act confers on the Minister a non‑compellable power to substitute his own decision for a decision of the Administrative Appeals Tribunal (“the AAT”) made under s 415 of the Act.  These sections do not assist the plaintiff.  This is because the plaintiff was a “fast track review applicant”[4]. The plaintiff’s application was reviewed by the IAA under Div 7AA of the Migration Act, not by the AAT under Div 7 of the Migration Act. The Minister has no similar power to substitute his own decision for the decision of the IAA. That fact explains why the Department’s response to the plaintiff referred only to the guidelines applicable to the exercise of the non‑compellable power under s 48B of the Migration Act.

[4]Defined in Migration Act, s 5(1).

Section 48B of the Migration Act should now be addressed. The plaintiff submitted that the Department had failed to accord him procedural fairness; that the Minister impermissibly delegated the power conferred by s 48B; that the assessment of his request by officers of the Department was an exercise of non‑statutory executive power; that the third defendant “failed to make inquiries according to law”; and that the Department (and the third defendant in particular) “failed to apply Guidelines issued by the Minister”. These submissions are inconsistent with authority: the decision of this Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship[5].

[5](2012) 246 CLR 636; [2012] HCA 31.

First, the plaintiff’s contention that the Department (and the third defendant in particular) failed to afford the plaintiff procedural fairness is rejected. The power under s 48B(1) is not conditioned by an obligation to afford procedural fairness to persons in the plaintiff’s position[6].  The decision in Plaintiff S10/2011 cannot be relevantly distinguished from the present case.  It is therefore both unnecessary and undesirable to consider the content of any such obligation.

[6]Plaintiff S10/2011 (2012) 246 CLR 636 at 654-655 [50]‑[51], 667-668 [99]-[100], 671-672 [114], 672-673 [118]-[119].

Further, this Court’s decision in Minister for Immigration and Border Protection v SZSSJ[7] does not assist the plaintiff. In that case, the Minister personally decided to consider whether to exercise the powers conferred by ss 48B, 195A and 417 of the Migration Act in respect of certain visa applicants.  To assist the Minister in that task, officers of the Department undertook international treaties obligations assessments to determine whether Australia’s non‑refoulement obligations had been engaged in respect of those applicants[8].  In that context, this Court held that procedural fairness was required as an implied condition of the exercise by the departmental officer of statutory power to engage in the process of assessment where the exercise of that power was apt to prolong immigration detention[9].  The plaintiff is not in that position.  Here, the Minister did not decide to consider whether to exercise his non‑compellable powers, as the plaintiff’s application was never referred to the Minister; the 17 December 2018 letter did not contain any representation about future procedure; and the parties agree that the departmental officer was exercising non‑statutory executive power.

[7](2016) 259 CLR 180; [2016] HCA 29.

[8]SZSSJ (2016) 259 CLR 180 at 189 [9]-[10], 195 [33].

[9]SZSSJ (2016) 259 CLR 180 at 205-206 [77].

Second, whilst the Minister cannot delegate the power conferred by s 48B(1)[10] and the assessment of the request by officers of the Department (including the third defendant) was an exercise of non-statutory executive power, these submissions do not assist the plaintiff.  The Minister has no obligation to consider exercising the power even where a request is made to him to exercise that power[11].  Relatedly, the Minister can develop guidelines to inform the circumstances in which he would consider exercising the power.  When departmental officers assess the facts of a particular case against those guidelines, that is not an impermissible delegation by the Minister of his powers[12]. 

[10]Migration Act, s 48B(2).

[11]Migration Act, s 48B(6).

[12]See Plaintiff S10/2011 (2012) 246 CLR 636 at 655 [51], 665 [91].

The arguments that the officers (and the third defendant in particular) “failed to make inquiries according to law” and “failed to apply [the] Guidelines” do not rise above the level of an assertion.  With respect to the alleged failure to make inquiries, the plaintiff has not identified the source of any such obligation or its specific content.  With respect to the alleged failure to apply the guidelines, the 17 December 2018 letter stated that the plaintiff’s request was assessed against the relevant guidelines.  There is nothing before this Court to suggest, let alone establish, that that statement was wrong.

Finally, the plaintiff submits that, due to a change of circumstances, he had presented new information since his request for the Minister to exercise the non‑compellable powers under s 417 or s 48B of the Migration Act. The plaintiff then makes reference to the Department of Home Affairs website, which states that if an applicant for the exercise of the non‑compellable power under s 48B is from one of a number of countries listed on that website, the application will not be referred to the Minister[13].  The plaintiff notes that Sri Lanka, of which the plaintiff claims he is a citizen, is not one of the countries on that list.  This argument does not assist the plaintiff because the Minister has no obligation to consider exercising the power.

[13]See Department of Home Affairs, Onshore Protection:  You have Previously Been Refused a Protection Visa or Your Protection Visa has been Cancelled, 13 February 2019, available at:  < those reasons, the application is dismissed with costs.

AT 9.31 AM THE MATTER WAS CONCLUDED