Xae v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 19
•24 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
XAE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 19
File numbers: MLG 1774 of 2021
MLG 1763 of 2021
MLG 1782 of 2021Judgment of: JUDGE RILEY Date of judgment: 24 January 2022 Catchwords: MIGRATION – Bridging E (subclass 050) visas – Minister having lifted the bar to allow the applicants to apply for protection visas – Minister having decided to consider whether to revoke the previous decisions to lift the bar – whether the Minister afforded the applicants procedural fairness in relation to the proposed revocations – whether the court can consider the Minister’s alleged non-compliance with s.46A(4) of the Migration Act 1958 – whether the court has jurisdiction to determine this matter. Legislation: Commonwealth of Australia Constitution Act, ss.75(iii) and (v)
Federal Circuit and Family Court of Australia Act 2021, s.134
Migration Act 1958, ss.46A and 476(1)
Parliamentary Privileges Act 1987, ss.16(2)(b) and (c) and 16(3)(c)Cases cited: CLM18 v Minister for Home Affairs (2019) 272 FCR 639; (2019) 373 ALR 147; [2019] FCAFC 170
Philip Morris Incorporated and Another v Adam P Brown Male Fashions Proprietary Limited; United States Surgical Corporation v Hospital Products International Proprietary Limited and Others (1981) 148 CLR 457 (1981); 33 ALR 465; (1981) 55 ALJR 120; (1981) ATPR 40-197; [1981] HCA 7
Sentinel Countrywide Retail Ltd v PC Emerald (Qld) Pty Ltd [2015] QSC 348
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63Division Division 2 General Federal Law Number of paragraphs: 90 Dates of hearing: 16 September and 4 October 2021 Place: Melbourne Counsel for the Applicants Angel Aleksov Solicitor for the Applicants Carina Ford Lawyers Counsel for the Respondent Stephen Lloyd SC and Louise Coleman Solicitor for the Respondent Sparke Helmore Lawyers ORDERS
MLG 1782 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XAE
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
24 JANUARY 2022
THE COURT ORDERS THAT:
1.The decision made by the Minister on 22 June 2021, to revoke the decision to “lift the bar” under s.46A(2C) of the Migration Act 1958, be quashed.
2.The respondent pay the applicant’s costs of the proceeding.
Note:The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS
MLG 1774 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEL18
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
24 JANUARY 2022
THE COURT ORDERS THAT:
1.The decision made by the Minister on 22 June 2021, to revoke the decision to “lift the bar” under s.46A(2C) of the Migration Act 1958, be quashed.
2.The respondent pay the applicant’s costs of the proceeding.
Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS
MLG 1763 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEM18, by her litigation guardian, XAE
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
24 JANUARY 2022
THE COURT ORDERS THAT:
1.The decision made by the Minister on 22 June 2021, to revoke the decision to “lift the bar” under s.46A(2C) of the Migration Act 1958, be quashed.
2.The respondent pay the applicant’s costs of the proceeding.
Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION
These are three applications for the review of decisions made by the Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs on 22 June 2021. By those decisions, the Minister revoked the determinations that he (or his predecessor) had made on 24 February 2015, 23 May 2016 and 11 May 2017, to “lift the bar”, to allow the applicants to lodge Bridging E (subclass 050) visa applications.
XAE is the husband of BEL18. They are the parents of BEM18. XAE is the litigation guardian of BEM18.
XAE and BEL18 have a younger daughter who was not a party to these proceedings. The younger daughter has never had the benefit of a determination to “lift the bar”.
The parties agreed that the three matters would be heard together.
CHRONOLOGY
A brief chronology of the relevant events is as follows.
On Tuesday 15 June 2021 at 7.37am, Belinda Gill, Assistant Secretary, Status Resolution Branch, Status Resolution and Visa Cancellation Division, Immigration and Settlement Services Group, Department of Home Affairs, sent an email to Carina Ford, the applicants’ solicitor. Ms Gill explained that the Minister wished to consider revoking his previous decisions to “lift the bar” for the applicants, and that he was required to afford the applicants procedural fairness before doing so. Ms Gill continued in her email:
You have until close of business on 22 June 2021 to comment and provide any information that you wish the Minister to consider.
If you do not respond within the specified timeframe the ministerial submission will be progressed based on all relevant information currently before the Department.
If you have any questions about this process or your current circumstances, please speak with your case manager or contact Ministerial Intervention via email [email protected].
Ms Ford replied to Ms Gill by email at 8.21am the same day, and various emails between Ms Gill and Ms Ford followed. Ms Ford indicated that she would be providing a submission on the possible revocation of the decisions to “lift the bar”.
On Tuesday 22 June 2021, at 5.45pm, Ms Ford sent her submissions regarding the revocation of the decisions to “lift the bar” to [email protected]. According to evidence filed in this proceeding, that email address was not monitored after 5pm on weekdays.
At 6.56pm the same day, Ms Gill sent her recommendation to the Minister’s adviser regarding the revocation of the decisions to “lift the bar”. Ms Gill noted in her recommendation that the applicants had been invited to comment on the possible revocation of the decisions to “lift the bar”, but that their legal representative had not responded within “the specified timeframe”.
At 7.21pm the same day, the Minister (by his adviser) emailed to Ms Gill his decisions revoking the previous decisions to “lift the bar”.
At 7.49pm the same day, Ms Ford’s assistant sent her submissions regarding the revocation of the decisions to “lift the bar” to Ms Gill at her individual email address, [email protected]. By that time, the Minister’s decision had already been made.
Also on 22 June 2021, the Minister dated a statement to the Parliament to the effect that he had decided to revoke the decisions to “lift the bar” in respect of the applicants.
The applicants filed their applications to this court on 20 July 2021, and filed amended applications on 27 August 2021.
The matter was brought on urgently for trial, on 16 September 2021, because the applicants’ bridging visas were due to expire on 22 September 2021. After lunch on 16 September 2021, the Minister gave an undertaking to the court to extend the applicants’ bridging visas by three months.
The evidence concluded on 16 September 2021, but there was no time to hear closing submissions on that day. The court was available the following day, but junior counsel for the Minister was not, and the applicants wished to have the benefit of transcript before making their closing submissions. Ultimately, the earliest mutually convenient date to resume the hearing was 4 October 2021, so the matter was adjourned until then.
By 4 October 2021, when the hearing resumed, the Minister had extended the applicants’ bridging visas for a further nine months, that is, until 23 September 2022.
MATERIAL RELIED UPON
The applicants relied upon:
(a)the amended applications filed on 27 August 2021;
(b)the affidavits affirmed by Carina Ford on:
(i)27 August 2021;
(ii)6 September 2021; and
(iii)14 September 2021;
(c)the court books filed on 19 August 2021; and
(d)their written submissions filed on:
(i)7 September 2021;
(ii)14 September 2021;
(iii)23 September 2021; and
(iv)1 October 2021.
The Minister relied upon:
(e)his responses filed on 29 July 2021;
(f)the affidavits affirmed by Belinda Gill on 3 September 2021;
(g)the court books filed on 19 August 2021; and
(h)his written submissions filed on:
(i)10 September 2021; and
(ii)30 September 2021.
Ms Ford and Ms Gill were both cross-examined on 16 September 2021.
GROUND 5: THE MINISTER’S STATEMENT TO THE PARLIAMENT
It is convenient to deal first with the fifth and last ground in the amended applications. That ground is:
The Minister’s statement to Parliament did not set out any reason for the Minister’s actions (and simply stated that he had taken action), which fails to comply with s 46A(4)(b) of the Migration Act 1958 (Cth), which requires that the Minister's statement to Parliament “sets out the reasons for the ... revocation, referring in particular to the Minister’s reasons for thinking that the Minister's actions are in the public interest.”
Section 46A of the Migration Act 1958 (“the Act”) relevantly provides that:
(1)An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
(a) is in Australia; and
(b) either:
(i)is an unlawful non‑citizen; or
(ii)holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
…
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
…
(2C)The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3)The power under subsection (2) or (2C) may only be exercised by the Minister personally.
(4)If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
(a)sets out the determination, the determination as varied or the instrument of revocation; and
(b)sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
…
(6)A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a)if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
…
Paragraph 46A(4)(b) of the Act clearly required the Minister to have laid before each House of the Parliament, within 15 sitting days of 1 July 2021, a statement setting out the reasons for the revocation of the bar lifts in respect of the applicants, referring in particular to the Minister’s reasons for thinking that the revocations were in the public interest.
The Minister did not suggest that he had laid before each House of the Parliament, within the specified time or at all, a statement setting out his reasons for the revocations. In the court book that the Minister prepared, he provided to the court two copies of his statement to the Parliament in respect of the applicants. The first, at CB113, was unsigned and undated. The second, at CB133, was signed by the Minister and dated 22 June 2021.
However, the Minister submitted that the applicants could not challenge the Minister’s conduct in connection with his statement to the Parliament because:
(a)the applicants were prohibited from doing so by s.16(3) of the Parliamentary Privileges Act 1987; and
(b)they lacked standing.
Section 16 of the Parliamentary Privileges Act 1987 provides that:
Parliamentary privilege in court proceedings
(1)For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2)For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a)the giving of evidence before a House or a committee, and evidence so given;
(b)the presentation or submission of a document to a House or a committee;
(c)the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d)the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
(3)In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a)questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b)otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c)drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
…
The Minister argued that the applicants asked the court to conclude that the Minister’s statement to the Parliament did not conform with s.46A(4)(b) of the Act, and thereby constituted an actual or constructive failure to exercise jurisdiction. The Minister argued that asking the court to draw such a conclusion was proscribed by s.16(3)(c) of the Parliamentary Privileges Act 1987.
Paragraph 16(3)(c) of the Parliamentary Privileges Act 1987 provides that:
(3)In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
…
(c)drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
The Minister also noted that, by virtue of s.16(2)(b) of the Parliamentary Privileges Act 1987, “proceedings in Parliament” include the laying of a document, such as the Minister’s statement in the present case, before a House of the Parliament.
The applicants argued that their application did not offend s.16(2)(c) of the Parliamentary Privileges Act 1987 because they were not seeking to adduce any evidence of any proceeding in Parliament, as the Minister had admitted that the documents at CB113 and CB133 were copies of the statement that he had made to Parliament. That submission does not address the substance of the issue, which is that evidence of the type described may not be received by a court or tribunal. That restriction applies regardless of who has tendered it.
The applicants argued further that they did not question anything that occurred in Parliament, but simply wished to point out that the Minister had, on his own admitted evidence, not complied with his duty under s.46A(4)(b) of the Act.
That amounts to a submission or comment concerning proceedings in Parliament (namely, the laying of the statement before the Houses of the Parliament) for the purpose of the drawing of a conclusion from the proceedings in Parliament, being the conclusion that the statement did not meet the requirements of s.46A(4)(b) of the Act. Making such submissions or comments is prohibited by s.16(3)(c) of the Parliamentary Privileges Act 1987.
It follows that ground 5 in the application cannot succeed. I will hear the parties on whether CB113 and CB133, and any related documents, should be removed from the court book.
As ground 5 cannot succeed, it is unnecessary to consider the question of standing.
JURISDICTION
The Minister filed an outline of written submissions, dated 10 September 2021, prior to the trial of this matter. In the last two substantive paragraphs of that outline of submissions, the Minister argued that the applicants’ inclusion of ground 5, and the proposed order in the nature of mandamus sought in relation to it, was a colourable attempt to give this court jurisdiction in relation to the order in the nature of certiorari that the applicants sought in relation to grounds 1 to 4.
The last two substantive paragraphs of the Minister’s outline of written submissions dated 10 September 2021 are as follows:
36.The Applicants’ original applications sought only an order that the revocation decision be quashed. That application, in that form, was defective and did not seek relief that would attract this Court’s jurisdiction under s 476(1) of the Act (which requires an application for relief of the kind stated in s 75(v) of the Constitution). The original applications sought only a quashing order.
37.An amendment was then made to also seek an order in the nature of mandamus, not in relation to the decision under s 46A(2C), but in relation to the carrying out of a separate and later duty owed to Parliament under s 46A(4). For reasons already advanced, we contend that this relief is misconceived because the Applicants lack standing and are incapable of proving the alleged non-compliance. In any event, that the alleged breach relates to a different duty under a different subsection suggests that it involves a different matter,26 compliance of which occurs only weeks or months after the revocation decision. There is no sense in which non-compliance with the duty in s 46A(4) undermines the validity of the decision in s 46A(2C) (nor is this even alleged). It follows that there is no sense in which the quashing order can be said to be ancillary or incidental to the mandamus that has been sought in the amended applications.27 Certiorari is granted only where necessary to give effect to that relief.28 One is left with the impression that the addition of this mandamus application was a colourable attempt to give this Court jurisdiction for the quashing order originally sought.29
:Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [64].
:Sinkovich v Attorney-General of New South Wales (2013) 85 NSWLR 783 at [67] (Basten JA) (Bathurst CJ, Beazley P, Price and Beech-Jones JJ agreeing); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [14], [142], [151]-[152], [218].
:Ibid.
:Newcrest Mining Ltd v Apache Northwest Pty Ltd [2008] FCA 1527 at [18].
The applications as originally filed on 20 July 2021 sought one order, being that the decision of the Minister be quashed. There was one ground of review in the applications as originally filed, being that:
The decision was made without affording procedural fairness to the [the applicant], in that the Minister failed to notify the applicant of the issues relevant to the making of the decision, and those issues are not obvious from the statutory arrangements or the context of the decision.
The applications were amended on 27 August 2021 to seek three additional orders, being:
(a)the Minister comply with his duty under s.46A(4)(b) of the Act to provide a statement to Parliament that “sets out the reasons for the … revocations, referring in particular to the Minister’s reasons for thinking that the Minister’s actions were in the public interest”;
(b)costs; and
(c)any other order needed to do justice.
Subsection 476(1) of the Act relevantly provides that:
Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
Paragraph 75(v) of the Constitution relevantly provides that:
In all matters--
…
(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:
the High Court shall have original jurisdiction.
The Minister’s point, in his outline of submissions dated 10 September 2021 was that the single order sought in the applications as originally filed on 20 July 2021 was an order in the nature of certiorari, which this court, without more, has no power to grant. That was said to be because, under s.476(1) of the Act and s.75(v) of the Constitution, this court only has jurisdiction, relevantly, where mandamus, prohibition, or an injunction is sought.
The Minister argued in his outline of submissions that the amendment of the application to include ground 5, being a mandamus ground, was a colourable attempt to give this court jurisdiction to deal with grounds 1 to 4, and to make the orders in the nature of certiorari sought in relation to them.
In his outline of written submissions, the Minister did not submit that this court has no jurisdiction to deal with this matter. Rather, the Minister suggested that the inclusion of ground 5, being the mandamus ground, was a crafty way of ensuring that this court had the jurisdiction to deal with grounds 1 to 4, and to make the orders in the nature of certiorari sought in relation to them.
However, after evidence had been heard, and after witnesses on both sides had been cross-examined, and after the applicants had filed their written closing submissions on 23 September 2021, the Minister returned to the question of the court’s jurisdiction in his written closing submissions filed on 30 September 2021. In those submissions, the Minister said:
Jurisdiction
2.In accordance with s 476(1) of the Act, this Court has the same original jurisdiction in relation to “migration decisions” as that conferred upon the High Court by s 75(v) of the Constitution. This Court’s jurisdiction in respect of “migration decisions” therefore arises only where mandamus, prohibition or an injunction is sought against an officer of the Commonwealth.
3.The Applicants commenced these proceedings by applications filed 23 July 2021. By those applications, the Applicants sought only an order that the Decision of the Minister under s 46A(2C) be quashed. That is an order in the nature of certiorari. The High Court does not have jurisdiction to grant such relief under s 75(v) unless one of the specified forms of relief is also pleaded. It follows that the applications for review as initially filed did not enliven this Court’s jurisdiction.
4.By amended applications filed 27 August 2021, the Applicants sought to remedy those defects through the inclusion of a prayer for relief in the nature of mandamus. That relief was sought in relation to a separate and distinct duty owed by the Minister to Parliament under s 46A(4). The relief so sought is misconceived, for the reasons set out at RS [30]-[34] and developed below. More problematically, however, the Applicants’ amended applications seek to challenge (at least)1 two discrete decisions: first, the Decision of the Minister under s 46A(2C) to revoke the initial bar lift determinations; and secondly, the subsequent “decision” of the Minister to cause to be laid before each House of Parliament a statement under s 46A(4) within the timeframe stipulated by s 46A(6).
5.The latter decision is a separate “decision” made pursuant to a separate duty owing to a different beneficiary (namely, the Parliament) and one which may permissibly be discharged by the Minister up to seven or eight months after a decision under s 46A(2C) is made: see s 46A(6). The Minister’s reporting obligation under s 46A(4) is not one that is intended to be enforceable at the suit of a person affected by a decision under s 46A(2C), or used as a vehicle for challenge to that anterior decision. Rather, the duty is a “particular manifestation of that aspect of responsible government which renders individual Ministers responsible to the Parliament for the administration of their departments”.2 It ensures that the Minister is subject to “a specific form of parliamentary accountability” as to the exercise of the exceptional power in s 46A(2C).3 But it carries no discernible consequences for the Applicants.
6.In those circumstances, the amended applications do not confer jurisdiction upon this Court in relation to the Applicants’ challenge to the anterior Decision under s 46A(2C). In so far as tabling a statement in Parliament is a “migration decision” at all, it is one that is separate in time and in substance from the revocation decision. It constitutes a separate matter. The Applicants themselves properly conceded in their oral opening that “grounds 1 to 4 and the relief sought there really has not much to do with ground 5”4 and, in written submissions, that ground 5 of the amended applications “is independent of the challenge to the decisions” under s 46A(2C).5 Those concessions underscore the fundamental jurisdictional hurdle to which the Applicants’ applications give rise.
7.Absent any claim for prohibition, mandamus or an injunction in connection with the Minister’s Decision under s 46A(2C), their applications for an order in the nature of certiorari with respect to the matter comprising the challenge to that decision does not fall within this Court’s jurisdiction under s 476(1) of the Act. The applications, at least to that extent, ought to be dismissed.
:See paragraphs 40 to 48 below.
:Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [55].
:Ibid.
:Transcript of hearing on 16 September 2021 (T) 6.13-15.
:Applicants’ reply submissions dated 6 September 2021 at [11] (Reply).
In their written closing submissions in reply filed on 1 October 2021, the applicants said in relation to the jurisdictional point:
2.The Minister’s challenge to jurisdiction (see Minister’s Closing Submissions (MCS) [2]-[7]) is the sort of trivial technical point that should not be made by a model litigant.
3.First, the point misreads the Amended Applications. The Amended Applications each seek “An order that the decision of the respondent be quashed”. Contrary to the assumption running through MCS, this is not strictly a prayer for the writ of certiorari. It is a description of the final orders sought – that the decision be quashed – not a statement of the exact mechanism by which that should occur (certiorari, ancillary to an remedy mentioned in s 75(v)). In this case, certiorari is available ancillary to Prohibition or an Injunction, to prevent the respondent from acting on the decision as though it were lawful.
4.In judicial review of migration decisions in this Court, the claim for relief expressed in these terms follows the standard wording on the “check the box” aspect under the heading “Final orders sought by applicant/s”. The standard form does not mention the writ of Prohibition, and the kind of Injunction mentioned in the standard form is different to the kind of Injunction that might be appropriate in this case. It is routine to seek relief that a decision be quashed, without also setting out the complex web by which that relief is available. The Application document in this Court is not a 19th Century pleading. Moreover, there is no attention given by the Minister to fourth claim for relief, which is broad enough to catch the claim for Prohibition or Injunction, drawing in the ancillary power to grant certiorari.
5.Anyway, and recalling parables about glass houses, it is not open to the Minister to raise this argument on their Response – the only opposition to the applicants’ grounds is that the decision is not affected by jurisdictional error, not that there is some jurisdictional defect in the application.
6.If this point is seriously to be pressed, and the Court thought it necessary or desirable to attend to these matters, the correct procedure would be for the Minister to seek leave to amend his Response to raise this issue, and only at that point would the Amended Application need to be amended accordingly.
Notwithstanding the last point made by the applicants, the court must be satisfied that it has jurisdiction before determining a matter, regardless of any point taken or not taken by a party. It is axiomatic that a court cannot acquire jurisdiction by the consent of the parties, or by any deficiency in a party’s conduct of the proceeding.
Section 134 of the Federal Circuit and Family Court of Australia Act 2021 provides, in relation to Division 2 of the court, that:
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked.
The applicants permissibly invoked the jurisdiction of this court by seeking mandamus in relation to the Minister’s statement to the Parliament. In terms of jurisdiction, it is immaterial that the applications for mandamus were unsuccessful. In Philip Morris Incorporated and Another v Adam P Brown Male Fashions Proprietary Limited; United States Surgical Corporation v Hospital Products International Proprietary Limited and Others (1981) 148 CLR 457 (1981); 33 ALR 465; (1981) 55 ALJR 120; (1981) ATPR 40-197; [1981] HCA 7 at 474, Barwick CJ said:
Once federal jurisdiction is attracted, it is not lost because the claim or assertion which attracted it has not been substantiated or has been displaced by some countervailing fact. Once attracted, by whatever path attracted, the jurisdiction persists to enable the Court to resolve the matter.
As this court has jurisdiction in relation to the mandamus application, it also has jurisdiction in relation to associated matters, pursuant to s.134 of the Federal Circuit and Family Court of Australia Act 2021.
In Philip Morris, Mason J, as his Honour then was, said at 512:
Likewise, it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction.
The applications in relation to certiorari are associated with the application in relation to mandamus, because they concern the same parties, and concern the same factual substratum, namely, the Minister’s decision under s.46A(2C) of the Act.
The Constitution does not prohibit this court from dealing with the applications for certiorari, as associated matters.
The jurisdictional point is without substance.
GROUND 1
The first ground of review in the amended applications is:
The decision was made without affording procedural fairness to [the applicant], in that the Minister failed to notify the applicant of the issues relevant to the making of the decision, and those issues are not obvious from the statutory arrangements or the context of the decision.
In their written submissions filed on 7 September 2021, the applicants said, in respect of ground 1, that:
43.A fundamental requirement of the duty to afford procedural fairness is stated by the High Court as follows:3
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. [emphasis is in the original quoting from Alphaone]
44.The only conceivable indication of what the Minister had in mind is set out in the invitation to comment as “You may wish to comment …. [on whether] … it is in the public interest to revoke the bar lifts … so as to align your position with that of your youngest daughter … who has not had … [the bar lifted] … for a bridging visa.”
45.“Align your position” is vague in the extreme. But even assuming this means to have the whole family in the same migration position with respect to the ability to make valid bridging visa applications, what is unstated is the reason that the Minister might have thought meant that this “alignment” was in the public interest” (which feeds into the complaint in Ground 5).
46.The intended outcome – alignment of the family’s migration position – is not a reason for the public interest test under s 46A(2C) being met. The test under s 46A(2C) required the Minister to have a reason as to why alignment of the family’s migration position was in the public interest (this is implied by s 46A(2C)(4)(b)). Any such reason would have to be a weighty consideration given the applicants’ suffering in detention.
47.Indeed, it was also unclear why “alignment” could not be achieved by granting a bar lift to the youngest daughter.
48.No doubt there was a reason in the Minister’s mind. It was surely “political” in character (which is not a forbidden reason to the Minister). But the applicants were entitled to know at least the gist of the (true) reasons that the Minister might have in mind when considering whether to make the decisions. Without knowledge of such reasons, the applicants could not know what “issues” were in play.
49.There is some unhappiness for the Minister in having an evidently “political” power conditioned only on the “public interest”, and having to provide notice of issues in the decision to affected persons. She or he in many cases may be required to reveal “political” thinking to a person when it is inconvenient to do so. That unhappiness is the result of the statutory scheme, and any complaint in that regard lies elsewhere.
:SZBEL v Minister for Immigration (2006) 228 CLR 152, [29].
In his written submissions filed on 10 September 2021, the Minister said, in respect of ground 1, that:
9.The exercise of power under s 46A(2C) to revoke a bar lift is conditioned on compliance with the obligations of procedural fairness: CLM18 v Minister for Home Affairs (2019) 272 FCR 639 at [131], [152] (Robertson and Abraham JJ; Perram J agreeing) (CLM18). Where a denial of procedural fairness is asserted in respect of a decision under s 46A(2C), the issue for determination is “whether the Minister adopted a procedure that was reasonable in the circumstances to afford an opportunity to be heard” to the applicant, who has “an interest apt to be affected by the exercise of the power” (CLM18 at [97]; see also [121]). In CLM18, the Full Court of the Federal Court defined the appellant’s “interest” in that respect as his ability to apply for a Temporary Protection visa (TPV) or Safe Haven Enterprise visa (SHEV) consequent upon the earlier determination under s 46A(2) to lift the s 46A(1) bar. The Full Court found that the appellant had not been denied procedural fairness because the procedure adopted by the Minister provided “ample opportunity to the appellant to act to safeguard [his] interest” by applying for a TPV or SHEV: at [123].
10.The first ground of review advanced by the Applicants fails at a factual level. In the invitation to comment (CB 4), the Department notified BEL18 and XAE that (emphasis added):
… [o]ne matter on which you may wish to comment is whether the Minister may consider it is in the public interest to revoke the bar lifts that currently apply to you and your eldest daughter so as to align your position with that of your youngest daughter … who has not had the section 46A statutory bar lifted to allow for the making of a valid application for a bridging visa.
11.That very issue was raised for the Minister’s consideration in ministerial submission MS21-001380 in connection with the exercise of his power under s 46A(2C): CB 128. That submission noted that “[o]ne factor that you may wish to consider is the desirability of aligning the section 46A status of family members, noting that [the youngest daughter] is subject to the section 46A(1) application bar”: CB 129 at [6]. In the course of signing the ministerial submission on 22 June 2021, the Minister noted that, if he declined to revoke the bar lift determinations, the family’s immigration pathway or status would remain unaligned: CB 128 at [2] (see also CB 130 at [8]). The ministerial submission did not raise any other matter to be considered by the Minister in the exercise of his power under s 46A(2C). It follows that the central issue upon which the Minister made his Decision was brought squarely to the Applicants’ attention for comment.
12.In their written submissions, the Applicants complain that the invitation to comment did not identify “the reason that the Minister might have thought meant [sic] that this ‘alignment’ was in the public interest”: Applicants’ submissions dated 6 September 2021 (AS) [45] (emphasis in original). Procedural fairness did not require the provision of such information. The expression “in the public interest” has no precise content and imports a discretionary value judgment on the part of the Minister.7 In CLM18, the Full Court rejected a similar submission on behalf of the appellant that he was denied procedural fairness “because he did not know the case he had to meet or that he should address public interest considerations”: at [127]. As Robertson and Abraham JJ explained (with the agreement of Perram J), “there was no case he had to meet and procedural fairness did not extend beyond the appellant having the opportunity to put forward why in his case he should be permitted to apply for a TPV or a SHEV beyond the specified timeframe for the revocation”: at [127]. The Applicants were afforded that opportunity.
13.In so far as the Applicants suggest that there was some other, “true” reason animating the Minister to which they were not privy (AS [48]), that assertion finds no foundation in the evidence and should be rejected.
:Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [99(v)].
Ground 1 was not further addressed by the parties.
In CLM18 v Minister for Home Affairs (2019) 272 FCR 639; (2019) 373 ALR 147; [2019] FCAFC 170 at [127], Robertson and Abraham JJ said:
We do not accept the submission on behalf of the appellant that he was not afforded procedural fairness because he did not know the case he had to meet or that he should address public interest considerations. In our view, there was no case he had to meet and procedural fairness did not extend beyond the appellant having the opportunity to put forward why in his case he should be permitted to apply for a TPV or a SHEV beyond the specified timeframe for the revocation.
CLM18 has some similarities with the present matters. All cases concerned the revocation of a decision to lift the bar. However, there are also some significant differences. In CLM18, the applicant was told that the decision to lift the bar in respect of him would be revoked on a particular date, and he should apply for a temporary protection visa or a safe haven enterprise visa before that date, or he would be detained and removed from Australia. That is, in CLM18, the revocation decision had already been made, but it had not taken effect. In the present matters, the applicants were asked to comment on why the decision to lift the bar should not be revoked. That is, the revocation decision had not been made, at the time of the invitation to comment, and the invitation to comment was about whether the revocation decision should be made at all.
It follows that CLM18 at [127] addresses a different point, and is not determinative of the present issue.
Going back to basics, as the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63 at[29] made clear, procedural fairness required the Minister to identify to the applicants:
any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.
The Minister said that he did identify, in the invitation to comment, the critical issue, which was to align the position of the applicants with the position of the younger child. It will be recalled that the bar had never been lifted in respect of the younger child.
However, that cannot have been the critical issue, because, if alignment was the objective, it would have made more sense for the bar to be lifted in respect of the younger child, as that would have required only one decision to be made, instead of three. Moreover, alignment, or sameness for the sake of sameness, is not a rational basis for making a migration decision.
Assuming, as I think I ought to, that the Minister is rational, it follows that the revocation decision was based on some other critical issue, which the Minister has not made known to the applicants or the court.
It follows from that that the Minister did not identify for the applicants the critical issue on which the revocation decision was based. The Minister thereby failed to afford the applicants procedural fairness.
GROUND 2
The second ground of review in the amended applications is:
The decision was made without affording procedural fairness to the applicant, in that the Minister failed to consider the submission made on behalf the applicant.
In their written submissions filed on 7 September 2021, the applicants said that:
26.The applicants were denied procedural fairness, in that the Minister failed to consider their submissions as to why he should not lower the bar.
27.The applicants were not told where to send their submissions. Instead, they were given an email address that said where to direct their inquiries. That is where they sent the submissions.
28.The applicants were never aware that Ms Gill was their “case manager” (whatever that means, since there is obviously at least another “contact officer” for this family). The applicants did not know that Ms Gill was “driving” the process, or of any of her “expectations”. Instead, they were told that “the Department” was providing an opportunity to comment in the invitation letter, signed by the Minister Intervention Section rather than by any specific officer (or by the Minister).
29.In the invitation to comment, the applicants were asked to include a specific “client ID” and “Permission request ID”, apparently identifying numbers for the family (much like a solicitor’s matter code). It makes little sense for this request to be made if there was an expectation for personal correspondence between Ms Ford and Ms Gill.
30.The letter emboldened the date, 22 June 2021, as the deadline. The letter stated: “close of business” on this date, but the time was not specified, nor the time-zone by which it would be calculated, nor was there any information about how the applicants might work out what this meant.
31.The fairly clear implication is that the Department would attend to the submission on the days following 22 June 2021 (ie, 23 June 2021 and following). There was no apparent urgency in the matter, and if close of business was at 5.00pm AEST, the applicants were effectively entitled to assume that the Minister would not be working on the evening of 22 June 2021 after business hours.
32.Even if the Department generally operates on business hours between 8:30am and 5pm, that is irrelevant. The Minister whose decision must be made after having afforded a fair procedure. The procedure in fact set out by the Department (and not Ms Gill) was not fair, because:
32.1It was unclear that Ms Gill was the “controller” of the information being put before the Minister, and that the submissions should be sent to her. Instead, and properly, the applicants sent the submissions to the “official” government email address set out in the invitation to comment.
32.2It was unclear whether “close of business” was a reference to AEST or AWST. The applicants were resident under AWST, and the opportunity being afforded was to them.
32.3It was unclear what was meant by “close of business”. The Department’s usual practices as to its business hours are irrelevant – the invitation did not refer to the Department’s business hours. Instead, the invitation to comment referred to some apparently objective concept, in circumstances where there is no such universally agreed concept. Different persons regard business hours as meaning different things. Even in the “office business” context, some firms operate until 5.30pm, or until 6.00pm. However, in other contexts, business hours might be 4.00pm (eg, court registries).
32.4Even if there was some basis for imposing 5.00pm AEST as the strict definition of “close of business”, the Department did receive the submissions prior to the Minister’s decision. It is flabbergasting that an Assistant Secretary in the Department and a member of the Senior Executive Service of the Australian Public Service with responsibility for advancing a submission to the Minister of the Commonwealth, in a case having attracted the highest public scrutiny, did not notice that the contact email set out in the invitation to comment was not to her direct work email and that she had never told the applicants or their representative to send the submission to her direct work email.
33.What emerges is “practical injustice”. The applicants advanced a meaningful submission (although also complaining about a lack of clarity as to the issues in the case). They complied with the deadline – the applicants are resident in Western Australia, and they furnished their submission to the apparently nominated address at 3.45pm AWST on the due date.
34.Their submissions had to be considered by the Minister, and they were not. The evidence set out in the Gill affidavit does not assist the Minister. Her expectations are not relevant. The question is whether the applicants were given a reasonable opportunity to respond, according to a fair procedure. The procedure was not fair because it imposed a deadline of 5.00pm AEST on 22 June 2021, in circumstances where the applicants were never told of this deadline.
In his written submissions filed on 10 September 2021, the Minister said, in relation to ground 2, that:
14.As to ground two, the question posed by CLM18 is whether the Minister adopted a procedure that was reasonable in the circumstances to afford an opportunity to be heard to the Applicants (paragraph 9 above). To that end, the Department notified the Applicants on 15 June 2021 of the possible exercise by the Minister of his power under s 46A(2C), and provided them with seven days to provide any information or submission that they wished the Minister to consider. Critically, as in CLM18, the Applicants were thereby given ample opportunity to act to safeguard their interests by making applications for bridging visas in accordance with the bar lift determinations. The Full Court regarded that as decisive in CLM18: at [124]. Moreover, the Applicants here utilised that opportunity; each of the Applicants applied for a bridging visa before the bar lift determinations were revoked, and each was subsequently granted a bridging visa on 22 June 2021 (CB 105 at [11]; CB 143, 149, 155). It follows that no “practical injustice” arose: CLM18 at [124].
15.The Applicants do not suggest that the period of seven days for making representations to the Minister as to why the bar lift determinations should not be revoked was itself inadequate, and nor was any such suggestion conveyed to the Department on the Applicants’ behalf following receipt of the invitation to comment. That invitation put the Applicants squarely on notice that, if they did not respond within the nominated timeframe, the ministerial submission would be progressed based on the information before the Department: CB 4. The procedure so adopted afforded the Applicants a fair opportunity to be heard.
16.The Applicants’ principal complaint is that they were “never told” that a deadline of 5pm (AEST) on 22 June 2021 had been imposed for the provision of a response: AS [32], [34]. Contrary to that assertion, the invitation to comment reasonably conveyed to its recipient that any response must be received by 5pm (AEST) on that date. That is demonstrated by the following:
a)the invitation to comment nominated a deadline of “close of business”. The phrase “close of business” in ordinary parlance means 5pm;8
b)the standard hours of duty in the Department were, and remain, from 8.30am to 5pm. That is set out in the Department of Home Affairs Workplace Determination 2019, which is publicly available (Gill Affidavit at [7(a)]); and
c)the invitation to comment was sent on letterhead bearing a Canberra address (CB 4-5). The time zone in Canberra is AEST. The invitation therefore conveyed to the ordinary, reasonable reader that “close of business” meant the conclusion of ordinary business hours in Canberra.
17. It is uncontroversial that the Applicants did not comply with that deadline.
18.The Applicants’ contention that the meaning of “close of business” in the invitation to comment was “unclear” (AS [32]) represents a post hoc complaint that finds no expression in the contemporaneous material. If in fact the deadline for the provision of submissions was “unclear”, as alleged, then the natural inference is that Ms Ford would have sought clarification from the Department. Ms Ford was in regular contact with Assistant Secretary Gill. Yet, at no stage did the Applicants (through Ms Ford) indicate to the Department during the period from 15 to 22 June 2021 that they required any confirmation as to the “close of business” deadline. Indeed, there is no evidence of the Applicants’ (or Ms Ford’s) actual understanding during that period of the deadline to which they were required to adhere.
19.The Department was entitled to proceed in accordance with the procedure outlined to the Applicants in the invitation to comment. There was no denial of procedural fairness by the Minister failing to consider submissions furnished by the Applicants outside of the specified timeframe, to an unmonitored email address, in circumstances where neither the Minister nor the Assistant Secretary were aware that any such submissions had been provided.
:Cf. Sentinel Countrywide Retail Ltd v PC Emerald (Qld) Pty Ltd [2015] QSC 348 at [33].
The parties made further written and oral submissions connected with this ground, but it is unnecessary to set them out.
In Sentinel Countrywide Retail Ltd v PC Emerald (Qld) Pty Ltd [2015] QSC 348, which was mentioned by the Minister, the court did not say at [33] or elsewhere that “close of business” means 5pm. The court in Sentinel noted that there was no evidence in that case about what “close of business” means.
Obviously, the term, “close of business”, has a somewhat vague and variable meaning. Different businesses might close at different times. As a matter of common knowledge, in 2021, for example:
(a)some types of banking business can be conducted 24 hours a day seven days a week;
(b)many shops are open well past 5pm on weekdays; and
(c)many office workers are often still at their desks at 6pm or 7pm or even later.
The advent of email as a regular means of official communication, as occurred in the present case, means that a business closing its front door does not necessarily coincide with its officers ceasing business for the day.
In the present case, the Minister adduced evidence that the standard working hours in the Minister’s department were 8.30am until 5pm on weekdays, as specified in clause 3.9 of the Department of Home Affairs Workplace Determination 2019. However, the very same document stated in clause 3.21 that staff could work flex-time within the hours of 7am until 7pm on weekdays, except in the Northern Territory where the flex-time hours were 6:30am to 6:30pm. That indicates that “close of business” for the Department of Home Affairs was at least 7pm AEST.
It will be recalled that Ms Gill sent the invitation to comment to Ms Ford at on 15 June 2021 at 7.37am. That is well before the supposed business hours of the Department of Home Affairs contended for by the Minister. It will also be recalled that Ms Ford sent her submissions to the [email protected] email address at 5.45pm on 22 June 2022. Ms Gill was still conducting the business of the Department of Home Affairs at 6.56pm, when she emailed her recommendation to the Minister’s adviser. The Minister, or at least his adviser, was still conducting the business of the Department of Home Affairs at 7.21pm, when the adviser emailed the Minister’s decision to Ms Gill. Whatever “close of business” might mean in general, it must have meant at least 7.21pm for the Department of Home Affairs on 22 June 2021.
The question then is whether Ms Ford sent her submission to the “right” email address, when she sent it to [email protected]. The fact is that Ms Gill did not specify where Ms Ford’s submissions were to be sent. A fair reading of the invitation to comment suggests that it was appropriate to send the submissions to [email protected], which was the address given for queries. If that inbox was not monitored after 5pm on weekdays, that was at the Department’s risk.
It is worth noting that Ms Gill conceded in cross-examination that, if she had received Ms Ford’s submissions prior to sending her recommendation to the Minister’s adviser, she would have incorporated them into her recommendation, even if they were received after 5pm. The fact is that Ms Ford’s submissions were received by the Department prior to Ms Gill sending her recommendation to the Minister’s adviser. However, Ms Gill did not include them in her recommendation because she did not have a mechanism to check the inbox at [email protected]. Such a mechanism was the Department’s responsibility.
When the invitation to comment said that submissions had to be received by “close of business” on 22 June 2021, the fair interpretation was that the decision on the revocation would not be made on 22 June 2021, because no more business would be conducted on that day after “close of business”. The fact that the revocation decision was made on 22 June 2021 was contrary to the invitation to comment. If it had been made the next day, for example, at 11am, there would have been ample time for the Department’s internal communication systems to forward to Ms Gill the submissions that Ms Ford had sent at 7.49pm on 22 June 2021 to [email protected]. It was unreasonable for the Minister to make the revocation decision before his own Department was able to provide him with relevant information, most notably, Ms Ford’s submissions.
It is also worth observing that, if Ms Gill meant had that the submissions should be received by 5pm on 22 June 2021, it would have been extremely easy for her to have said exactly that, and I daresay Ms Ford would have met that deadline. The fact that Ms Gill did not use such simple and straightforward terminology has created this fiasco.
If Ms Gill had wanted Ms Ford to send her submissions to Ms Gill’s own work email address, she should have said so. As the matter stands, by including the other email address in the invitation to comment, Ms Gill conveyed that that email address was the appropriate email address for the submissions to be sent to.
Ms Ford sent her submissions to the Department, at the email address that it had provided, at 5.45pm on the specified date. The Minister did not take them into account. He thereby denied the applicants procedural fairness.
GROUND 3
The third ground of review in the amended applications is that:
The decision is affected by legal unreasonableness, in that it was legally unreasonable for the Minister’s department not to provide the applicant’s submission to the Minister.
In their written submissions filed on 7 September 2021, the applicants said that:
35.Allied to Ground 2, given the history of engagement by the applicants, if Ms Gill was to interpret the invitation to comment in the way that she did, the rules of legal reasonableness attaching to the performance of her official duties required her to contact Ms Ford at 5.01pm AEST to see if a submission was to be forthcoming.1
36. It was legally unreasonable for Ms Gill not to do so.
37.That unreasonableness affected the decision of the Minister, as it resulted in him not being provided with the applicants’ submissions (which would have been provided otherwise, Gill affidavit at [17]).
38.To the extent that there is any dispute about this issue, the requirement of legal reasonableness derives from:
38.1Section 61 of the Constitution, applying Jabbour v Secretary, Department of Home Affairs [2019] FCA 452.
38.2 Sections 24 and 25, and 35 of the Public Service Act 1999.
38.3 Section 46A of the Migration Act 1958.
: Kaur v Minister for Immigration (2014) 236 FCR 393.
In his written submissions filed on 10 September 2021, the Minister said that:
20.By this ground, the Applicants contend in their amended applications that it was legally unreasonable “for the Minister’s department not to provide the applicant’s submission to the Minister”.
21.The concept of legal unreasonableness can be employed in two different contexts: first, as a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process; and secondly, as an inference to be drawn from the outcome of an exercise of power where that exercise “lacks an evident and intelligible justification”.10
22.Here, it appears that the Applicants proceed in their amended applications on the latter basis. The Applicants challenge the conduct of the Department in failing to provide the Applicants’ response to the invitation to comment to the Minister, prior to the Decision. That conduct was not legally unreasonable, in the sense of lacking any evident or intelligible justification. To the contrary, that conduct was entirely intelligible:11 Assistant Secretary Gill was not aware that any such response had been received from the Applicants until after the Decision had been made; she had no means of accessing the MI mailbox, being the sole address to which the Applicants’ response was directed prior to the Minister’s Decision, and did not expect any response to be sent to that address; the MI mailbox itself was not monitored after 5pm (AEST) when the response was provided; and Assistant Secretary Gill understood that the deadline for the provision of any response by the Applicants had passed (and, indeed, we submit that it had actually passed).
23.Legal unreasonableness is “invariably fact dependent”.12 The Applicants’ argument ultimately reduces to the proposition that it was legally unreasonable for the Department to fail to provide the Minister with a document that has not been shown to have come to the attention of any Departmental employee prior to the Decision. That conduct cannot be said to lack an evident and intelligible justification.
24.In their written submissions, the Applicants advance a new argument in support of this ground – namely, that it was legally unreasonable for Assistant Secretary Gill not “to contact Ms Ford at 5.01pm AEST to see if a submission was to be forthcoming”: AS [35]. The decision in Kaur v Minister for Immigration (2014) 236 FCR 393 as to the discharge of the Migration Review Tribunal’s merits review function, being the sole decision upon which the Applicants rely, does not stand for such a proposition. It is distinguishable in important respects, both factually and legally, in any event.13 The Applicants’ argument as to the relevance or application of Kaur cannot be discerned from their written submissions.
25.It was not incumbent on the Department to pursue the Applicants for a response – and a fortiori, after the time for doing so had expired. Assistant Secretary Gill’s conduct in proceeding to finalise the ministerial submission in the absence of any response was precisely what the Department had foreshadowed would transpire in the invitation to comment. It was plainly intelligible on the basis that Assistant Secretary Gill understood that the stipulated timeframe for comment had passed. It fell within the bounds of legal reasonableness.14
:Minister for Immigration and Border Protection v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44].
:Cf. Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at [80] (Mortimer J; Jagot and Bromberg JJ agreeing).
:Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [42].
:As demonstrated by the series of decisions that were decided after Kaur: e.g. Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 and EBS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 187.
:Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [80] (Nettle and Gordon JJ).
The parties made further written and oral submissions connected with this ground, but it is unnecessary to set them out.
For the reasons discussed above, it was legally unreasonable for the Minister to not take into account submissions that had been sent to his Department, at the nominated email address, within the time specified in the invitation to comment.
GROUND 4
The fourth ground of review in the amended applications is that:
The Minister failed to act on the basis of the “most up to date” information available to him, which information included the submission of the applicant.
In their written submissions filed on 7 September 2021, the applicants said that:
39.A fundamental requirement of the duty to afford procedural fairness is that a decision maker must consider all clearly articulated submissions made by the party affected by the decision.2 The upshot of this situation is that clearly articulated submissions that are before a decision maker are a mandatory relevant consideration in the sense discussed in Peko-Wallsend (1986) 162 CLR 24.
40.Also as discussed in Peko-Wallsend, there is implied in nearly every statute, a duty to consider the most up to date material actually or constructively before a decision maker. This principle is re-affirmed routinely: see, eg, PQSM v Minister for Home Affairs (2020) 382 ALR 195.
41.In this case, the applicants’ submissions were at least constructively before the Minister. Even if one accepts that Ms Gill did not see the submissions before the Minister’s decision, they were certainly with the Minister’s department in the email inbox to which the applicants had been directed to send correspondence.
42.The submissions contained the most up to date information constructively before the Minister (being the information as to the applicants’ attitudes to the lowering of the bar), and this was not considered.
:Dranichnikov v Minister for Immigration (2003) 197 ALR 389.
In his written submissions filed on 10 September 2021, the Minister said that:
26.By ground four, the Applicants contend that the Minister failed to act on the basis of the “most up to date” information available to him, namely, the Applicants’ response to the invitation to comment: AS [39]-[42].
27.The authorities cited by the Applicants in support of this ground do not support the implicit assertion that a failure to act in the manner described when exercising the power under s 46A(2C) of the Act constitutes a jurisdictional error such as to enliven this Court’s jurisdiction.15 That proposition should be rejected. It cannot be reconciled with the Minister’s (unchallenged) ability to impose a deadline for the receipt of submissions from the Applicants in response to the invitation to comment. Nor, in any event, was the Applicants’ response to that invitation “constructively” available to the Minister at the time of the Decision (cf. AS [41]) in circumstances where there is no evidence (and it is inherently unlikely) that the Minister had access to the MI mailbox.16 The Minister was advised in ministerial submission MS21-001380 that the Applicants had not provided a response to the invitation to comment within the specified timeframe: CB 109 at [2]. He was under no obligation to make further inquiries on that issue. The present case does not fall within that “exceptional” class of case, the circumstances of which may give rise to an obligation for the decision-maker to make an “obvious inquiry” with respect to a “critical fact” whose existence is easily ascertained.17
28.The principles emerging from Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 do not assist the Applicants: cf. AS [39] Those principles are premised upon the existence of a “substantial, clearly articulated argument relying upon established facts” that is in fact before the decision-maker at the time of its decision and that does not “depend for its exposure on constructive or creative activity by” the decision-maker.18 It is common ground that the Applicants’ submissions were not before the Minister at the time of the Decision. That is sufficient to defeat this ground. The Applicants do not otherwise seek to explain how those principles apply in this case to the exercise of the Minister’s power under s 46A(2C).
:See PQSM v Minister for Home Affairs (2020) 279 FCR 175 at [116].
:Cf. Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532 at 564.
:Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25]; SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [49]; see also Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 (Wilcox J) in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
:(2004) 144 FCR 1 at [58]; see also BCE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 124 at [27] (Jagot, Perry and Snaden JJ).
The parties made further written and oral submissions connected with this ground, but it is unnecessary to set them out.
By the time the Minister made his revocation decision, Ms Ford’s submissions had been lodged with the Department in accordance with the instructions in the invitation to comment. The Minister was obliged to take them into account, for the reasons discussed above.
CONCLUSION
As grounds 1 to 4 have been made out, the Minister’s revocation decisions made on 22 June 2021 will be quashed, and the Minister will be ordered to pay the applicants’ costs. I will hear the parties on the quantum of costs.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Dated: 24 January 2022
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