AustLII Home | Databases | WorldLII | Search | Feedback

Sydney Law Review

Faculty of Law, University of Sydney
You are here:  AustLII >> Databases >> Sydney Law Review >> 2016 >> [2016] SydLawRw 11

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Hammond, Emily; Thwaites, Rayner --- "Minister for Immigration and Border Protection v SZSSJ: Consideration of Asylum Claims outside the Visa Application System" [2016] SydLawRw 11; (2016) 38(2) Sydney Law Review 243


Before the High Court

Minister for Immigration and Border Protection v SZSSJ: Consideration of Asylum Claims outside the Visa Application System

Emily Hammond[∗] and Rayner Thwaites[†]

Abstract

The Australian Government Department of Immigration and Border Security is currently assessing whether its inadvertent publication of the identifying details of some 9000 immigration detainees on its website in February 2014 gives rise to sur place refugee claims (that is, by reason of events that have happened in Australia). For some of those affected, the Department’s assessment will be used to help determine whether a personal noncompellable ministerial discretion (‘dispensing power’) should be exercised to grant them a visa even though they are otherwise precluded from making a valid application under the Migration Act 1958 (Cth). The scope for judicial review of assessments taken to inform consideration of the dispensing powers has been the subject of a series of significant High Court of Australia decisions, including the Offshore Processing Case, Plaintiff M76/2013, Plaintiff S4/2014 and Plaintiff S10/2011. Now, the Minister for Immigration and Border Protection is appealing from a decision of the Federal Court of Australia providing relief for denial of procedural fairness in the Department’s assessment process. The appeal gives the High Court an opportunity to clarify a number of important issues including the significance of Plaintiff S10/2011 and the introduction of s 197C of the Migration Act 1958 (Cth).

I Introduction

A significant proportion of Australian Government decision-making on asylum claims is conducted outside the visa application system established by the Migration Act 1958 (Cth) (‘Migration Act’). This is because statutory exclusions operate to preclude certain classes of non-citizens from making a valid application for a visa,[1] yet the Government must conduct some assessment of the claims if it is to comply with its protection obligations under international law.[2]

A statutory basis for consideration of Australia’s treaty obligations in relation to individuals who are not able to make a valid application for a visa is provided by a series of ministerial discretions that enable a visa to be granted to a person who is otherwise barred by the Migration Act from making a valid application (‘dispensing powers’).[3] In earlier litigation, the High Court of Australia settled two significant points about the place of the ministerial dispensing powers (and the assessment processes they support) in the scheme of the Migration Act. First, the duty to remove unlawful non-citizens[4] is suspended while inquiries or assessments are made as steps towards the possible exercise of the dispensing powers.[5] Second, such inquiries or assessments provide a purpose supporting the lawfulness of administrative detention.[6] In addition, the High Court has given declaratory relief where assessments of Australia’s treaty obligations in relation to unauthorised maritime arrivals (undertaken to inform the exercise of dispensing powers) remain incomplete in law because they involve errors of law and/or a denial of procedural fairness.[7]

Against this background, the Minister’s appeals in Minister for Immigration and Border Protection v SZSSJ[8] provide the High Court with an opportunity to answer two important questions:

(i) Does the Migration Act exclude a duty of procedural fairness in every assessment process that is implemented to help determine whether the Minister should exercise the dispensing powers in relation to individuals who have previously had an opportunity to apply for a visa?

(ii) Once an assessment has begun, but remains incomplete in law, can the Minister decide not to continue the assessment?

As noted, the High Court has previously decided claims of procedural unfairness and illegality in the assessment of asylum claims outside the visa application process (undertaken to inform the possible exercise of ministerial dispensing powers).[9] However, these appeals bring the issues to the High Court for the first time since the Migration Act was amended to provide under s 197C that, for the purposes of the duty to remove under s 198, ‘it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen’ and that the duty to remove an unlawful non-citizen arises ‘irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen’.[10] Section 197C disrupts some of the settled understandings about the foundation for judicial review of consideration of asylum claims outside the visa application system.[11] The Minister’s appeals also require the High Court to clarify the implications of its decision in S10/2011[12] that procedural fairness did not condition the evaluation of certain onshore requests that the Minister exercise the dispensing powers.

II The Facts and Litigation History

For a period of approximately 14 days in February 2014, a document containing the names and identifying information for 9258 asylum seekers in immigration detention was available on the Australian Government Department of Immigration and Border Protection’s website (‘the Data Breach’). This public disclosure carried the risk that authorities and others in the countries from which the asylum seekers had come might have become aware of the fact the named asylum seekers had sought protection in Australia. This would, in turn, for some applicants carry a new and independent risk of harm if they were returned to their country of origin. Thus, the Data Breach means that some affected individuals may be refugees sur place (that is, by reason of events that happened in Australia).[13]

The Department initiated a process to assess the implications of the Data Breach for Australia’s protection obligations in relation to the asylum seekers whose identity had been disclosed.[14] At the time of the Data Breach, all of the affected asylum seekers were barred from making any further application for a protection visa.[15] Some individuals still had undecided applications, in which it now appears the sur place claim will be considered.[16] Others, however, had already received adverse decisions on their protection claim and had either exhausted review mechanisms or failed to seek review within time. For individuals in this situation, the Department commenced an ‘International Treaties Obligation Assessment’ (‘ITOA’), to assess whether, as a consequence of the Data Breach, their removal from Australia would be in breach of Australia’s treaty obligations. The ITOA was undertaken with a view to informing the Minister of matters relevant to the possible exercise of the dispensing powers.[17]

The respondents to the Minister’s appeals to the High Court — SZSSJ and SZTZI — are two asylum seekers affected by the Data Breach who had received adverse visa decisions before the Data Breach and so are subject to the Department’s ITOA process. Both are in immigration detention.[18] Both applied to the Federal Circuit Court of Australia for relief, alleging a lack of procedural fairness in the ITOA process. SZTZI applied after she received notification from the Department that it had concluded an assessment and considered there was no non-refoulement obligation. In contrast, SZSSJ applied to the Federal Circuit Court while the ITOA was ongoing. The Federal Circuit Court dismissed the applications.[19] SZSSJ and SZTZI’s appeals to the Federal Court of Australia (heard together) were successful.

The Federal Court found that the ITOA process in relation to SZSSJ and SZTZI was procedurally unfair. SZSSJ and SZTZI were not informed about the decision-making process that was being followed;[20] and were not given access to more detailed information available to the Department concerning who had accessed their personal data.[21] In addition to granting declarations, the Court granted an injunction to restrain SZSSJ’s removal from Australia until 14 days after the conclusion of the Department’s ITOA.[22]

III The Minister’s Appeals and the Scope of this Column

The Minister’s appeals argue that the Federal Court erred in finding that: the Federal Circuit Court had jurisdiction to hear the applications; the Department’s assessments were conditioned on provision of a fair hearing; the Department’s processes were procedurally unfair; and it was appropriate to issue an injunction to restrain removal of SZSSJ (who is the subject of an ongoing ITOA).

In this column, we do not address the Minister’s challenge to the Federal Court’s finding that the ITOA process was procedurally unfair or the Minister’s argument that an injunction should not issue where there is no present risk of removal. We focus on the two questions identified in Part I. Before turning to those questions, it is necessary to acknowledge that these appeals may be resolved on the basis that the Federal Circuit Court lacked jurisdiction to hear the applications.

The Minister argues that the Federal Circuit Court’s jurisdiction is excluded in relation to a decision or purported decision of the Minister not to exercise or not to consider the exercise of the dispensing powers,[23] where decision is defined to include conduct preparatory to a decision.[24] The Federal Court found that the exclusionary provision did not apply because the applications were made with respect to conduct that is also preparatory to a distinct decision, namely whether SZSSJ and SZTZI were to be removed from Australia under s 198 of the Migration Act.[25] The Minister’s submissions in the appeal highlight some difficulties in this analysis — in substance the applications focus on steps taken towards the exercise of the dispensing powers, and the removal or otherwise of SZSSJ or SZTZI is simply a consequence of whether the dispensing powers are exercised or not.

If the Minister succeeds in his appeal against the finding that the Federal Circuit Court had jurisdiction, SZSSJ and SZTZI and similarly placed individuals who wish to challenge the assessment of the implications of the Data Breach will apply directly to the High Court.[26] It is likely that the substantive issues raised by these appeals will come before the High Court, whether these appeals prove the vehicle or not.

IV The Application of Procedural Fairness: S10/2011

The Federal Court held that procedural fairness applies to the Minister’s consideration of the possible exercise of his dispensing powers in relation to SZSSJ and SZTZI.[27] The Minister argues that this ruling is inconsistent with the High Court’s decision in S10/2011.[28] It is not disputed that an ITOA conducted in relation to the Data Breach affects individual interests in a manner that justifies the implication of procedural fairness.[29] Rather, the Minister argues that the Federal Court’s decision is inconsistent with the decision by a majority of the Court in S10/2011 (Gummow, Hayne, Crennan and Bell JJ; and Heydon J in a separate judgment)[30] that the Migration Act excludes the implication of procedural fairness in the exercise of the dispensing powers in relation to non-citizens who have previously had access to, or opportunity to access, the visa application system.

A Does S10/2011 Deal Only with ‘Step 1’ Decisions?

In SZSSJ (No 2), the Federal Court held[31] that S10/2011 addressed procedural fairness in what the High Court has called ‘step 1’[32] decision-making under the dispensing powers — that is, to decide to consider the exercise of the powers;[33] whereas the Minister has decided to consider the exercise of his dispensing powers in relation to individuals relevantly affected by the Data Breach.[34] The Minister accepts the Federal Court’s finding that the Minister has made the ‘step 1 decision’, but submits that the Full Federal Court erred in distinguishing S10/2011 on the basis that it only applied to step 1.[35]

It is arguable that the S10/2011 plurality (Gummow, Hayne, Crennan and Bell JJ) held that the duty was excluded at step 2. Their Honours identified nine significant characteristics of the dispensing powers, the cumulative significance of which is that the provisions are not conditioned on observance of the principles of procedural fairness.[36] The characteristics include features of both steps (that they are non-compellable and non-delegable, and do not require consideration of the personal circumstances of an individual or satisfaction that the person meets the condition for the issue of a visa); and features that relate to the ‘step 2’ decision (the tabling of a decision in Parliament, the ‘public interest’ criterion for the exercise of the powers). Justice Heydon’s reasons similarly focus on features of the substantive exercise of the dispensing powers.[37]

B S10/2011 Distinguished: No Opportunity for Assessment of Sur Place Claims under the Visa Application Scheme

There are, however, strong grounds for distinguishing S10/2011. Put simply, applicants in the position of SZSSJ and SZTZI are in a different situation to the cases to which the plurality ruling in S10/2011 was directed. In relation to their sur place claim, SZSSJ and SZTZI have not had an opportunity for the claim to be considered within the Migration Act’s scheme for visa applications. This is because their visa applications had been concluded at the time of the Data Breach, so there was no opportunity for the implications of the breach to be considered in the context of the visa applications.

The Minister submits that the statutory exclusion of procedural fairness identified by the plurality in S10/2011 applies to the circumstances in SZSSJ.[38] To the extent that such an argument might rely on the idea that, as a matter of statutory construction, exclusion must apply to every exercise of a statutory power, it is inconsistent with the plurality reasoning in S10/2011. The plurality held that ‘[u]pon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness’.[39] Their Honours also held that procedural fairness conditions the exercise of a dispensing power (s 195A) in some circumstances, but not others.[40]

Allowing that exclusion of procedural fairness for the exercise of a statutory power may apply to some but not all decisions made in exercise of the power, is the situation in SZSSJ distinguishable from the situation for which the S10/2011 plurality held procedural fairness was excluded? We suggest that it plainly is. The situation in S10/2011 was one where the individuals had had a fair opportunity to make all relevant claims.[41] This assumption is evident in the language that the plurality uses in describing the characteristics of the dispensing powers that support the conclusion that procedural fairness is relevantly excluded,[42] and in their finding of a statutory intention to exclude fairness for individuals who ‘ha[ve] or could have applied for a visa and on refusal ... engaged the review processes of the Act’.[43]

Further, the S10/2011 plurality drew an analogy to a senior official standing at the peak of administration and at the end of a multi-stage process of consideration, exercising a discretionary power. Their Honours endorsed Brennan J’s observation in O’Shea that such a decision-maker is not required to give a further hearing if procedural fairness has been provided in earlier stages of the process.[44] Conversely, a further hearing may be required in fairness if the decision-maker proposes to consider new information.[45]

There is a clear practical distinction between the situation for which the S10/2011 plurality held that procedural fairness is excluded and the situation of SZSSJ and SZTZI. SZSSJ and SZTZI had not been able to make the sur place claim until after the final decision on their previous visa applications, and it is a claim that arises through no action or fault of their own. O’Shea accordingly provides a framework for distinguishing the S10/2011 plurality’s findings. As identified in O’Shea,[46] a further hearing is provided at the end of a multi-stage process if the final stage involves consideration of further information (not considered earlier). The case for procedural fairness is even stronger where it is not new information pertaining to a claim that has been considered previously, but a whole new claim.

V Can the Minister Terminate Consideration of an Exercise of Dispensing Powers that Remains Unperformed in Law (including in light of s 197C)?

The High Court appeals focus on the Federal Court’s finding[47] that s 197C does not apply retrospectively to the Minister’s consideration of sur place claims flowing from the Data Breach. However, the appeals provide the High Court with an opportunity to revisit a fundamental issue regarding decision-making where a ‘no consideration’ clause applies: namely, the scope for the decision-maker to terminate consideration once started.[48] Specifically, the High Court can provide guidance on two questions in relation to the dispensing powers:[49]

(i) Can the Minister terminate a process of consideration that has been completed in fact but, by reason of legal error, not in law?

(ii) Is the answer to (i) affected by s 197C of the Migration Act?

This issue is relevant for applications alleging errors of law in the Minister’s consideration of the exercise of dispensing powers, as well as applications alleging denial of procedural fairness.[50] If the Minister must make a decision once he has started considering the exercise of the dispensing powers, it may be appropriate to give orders mandating that the process be concluded according to law.[51]

To introduce comment on these questions, it is helpful to state two settled points concerning the accommodation between s 198 of the Migration Act and the dispensing powers. First, the Minister’s consideration of the exercise of dispensing powers suspends the duty to remove under s 198.[52] Second, the Minister’s consideration of the exercise of dispensing powers is incomplete if affected by legal error. In M76/2013,[53] the High Court granted a declaration that the Minister’s consideration of the exercise of a dispensing power (s 46A(2)) was affected by legal error.[54] A majority of the Court also held that the error of law in the departmental officer’s decision not to refer the case to the Minister meant that the Minister had yet to complete his consideration under the dispensing provision.[55] Following this majority decision, if legal errors occur in the ITOA process in relation to the Data Breach, the Minister’s consideration under the dispensing powers has not been completed in law (with the consequence that the duty to remove under s 198 remains suspended).

Accepting these two points, can the Minister decide to terminate or discontinue consideration knowing that the ITOA process is incomplete in law? In light of s 197C, we suggest that it will be important to separate out two rationales in the earlier cases that supported limits on the Minister’s freedom to depart from a process of consideration commenced under the dispensing powers.

A The Removal Scheme Construed to Respond to Australia’s International Law Obligations

In M70/2011, the High Court held that, as the Migration Act then stood, s 198(2) did not authorise the removal of a person who has a claim for asylum that has not been determined according to law.[56] Applying M70/2011, the Full Court of the Federal Court in SZQRB made orders restraining the removal of a non-citizen where the Minister’s consideration of an asylum claim outside the visa application process (to inform consideration of the possible exercise of dispensing powers) was complete in fact, but not in law.[57]

The specific rationale provided by M70/2011 and SZQRB was that s 198(2) is construed as permitting compliance with Australia’s international obligations in relation to determination of asylum claims. This rationale may be less secure in light of s 197C. However, the Court’s decisions provide another rationale for holding that the Minister must complete, in law, a process of consideration commenced under the dispensing powers in relation to individuals in immigration detention. This second rationale is centred on the legality of detention.

B The Legal Underpinning of Administrative Detention Cannot Be Changed at Executive Whim

In S4/2014, the High Court held that having started a process of consideration whether to allow a non-citizen to make an application for a protection visa, the Minister could not, in the interim, grant another visa which includes a condition that ‘forbids the very thing which was the subject of uncompleted consideration (making a valid application for a protection visa)’.[58] The Minister could not exercise other powers to defeat the consideration of the dispensing provision that the Minister had started.[59]

The reasoning in S4/2014 can be used to support a proposition that the Minister’s ability to terminate a consideration of the exercise of the dispensing powers that he has commenced is limited.[60] S4/2014 reflects an important constitutional premise for answering the question raised by the Minister’s appeals in SZSSJ:[61] the duration and purpose of detention must be capable of being ascertained at the outset, the duration of detention must be capable of being ascertained at any time, and the criteria used to determine the lawfulness of detention do not and may not vary.[62] It also illustrates that the Minister is not permitted to abandon a process by taking action that defeats the consideration the Minister has started.

The Minister’s appeals in SZSSJ provide the Court with an opportunity to confirm that the same constitutional principles require that, once the Minister commences consideration of the exercise of dispensing powers in relation to an individual in detention, the Minister cannot terminate a consideration that is incomplete in law. This is a step that French CJ and Hayne J took in the earlier case of M76/2013. In that case, their Honours held that, having regard to the constitutional principles mentioned, where the Minister has commenced consideration of the exercise of the dispensing powers in relation to an individual who is in immigration detention, the Minister must decide whether to exercise the dispensing powers based on the issues identified when the consideration began.[63] There would be detention at the unconstrained discretion of the executive if the Minister could decide at any time to refuse to conclude consideration of whether to exercise the power.

Chief Justice French and Hayne J’s reasons in M76/2013 and the High Court’s reasons in S4/2014 support the proposition that there is a legal duty on the Minister to conclude, once started, a consideration of whether the dispensing powers should be exercised in relation to a person in immigration detention. This reasoning is not affected by the introduction of s 197, as it is based on the obligation to conclude ministerial consideration once commenced, rather than any obligation to consider Australia’s international obligations when removing a noncitizen under s 198.

VI Conclusion

The Data Breach and its aftermath raise important issues concerning the scope for judicial review of government decision-making on asylum claims outside the visa application system (under the dispensing powers). Does procedural fairness apply to assessing new onshore claims for protection under the dispensing powers? If the Minister’s consideration of the exercise of dispensing powers involves legal error, can the Minister be required to complete the consideration according to law? The Minister’s appeals in SZSSJ provide the High Court with an opportunity to clarify that procedural fairness is not excluded for consideration of new onshore claims for protection; and to confirm that when the Minister decides to consider the exercise of dispensing powers in relation to an individual in detention, he or she must complete that consideration according to law. This will ensure that individuals like SZSSJ and SZTZI, who are completely reliant on the dispensing powers for consideration of their sur place protection claims, will not be deprived of a remedy if the consideration is unlawful.


[∗] Casual Lecturer, Sydney Law School, University of Sydney, Australia.

[†] Senior Lecturer, Sydney Law School, University of Sydney, Australia.

[1] Migration Act ss 46A(1), 48A.

[2] These include the non-refoulement obligations discussed in SZSSJ v Minister for Immigration and Border Protection (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 15–16 [44]–[45] (‘SZSSJ (No 2)’).

[3] Migration Act ss 46A, 48B, 195A, 351, 417.

[4] Ibid s 198.

[5] Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 351 [71] (‘Offshore Processing Case’); Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219, 239–40 [58] (‘S4/2014’). See also SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 16–17 [48]–[52], 37 [145].

[6] Offshore Processing Case (2010) 243 CLR 319, 348–9 [64]–[65], 351 [71], 353 [77]; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322, 340 [22] (French CJ), 359–60 [100] (Hayne J), 368 [135] (Crennan, Bell, Gageler JJ) (‘M76/2013’); S4/2014 (2014) 253 CLR 219, 230 [21].

[7] Offshore Processing Case (2010) 243 CLR 319 (errors of law by treating Australian legislation and case law as no more than an aid to interpretation of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Refugee Convention’); denial of procedural fairness by not putting aspects of country information to the claimants); M76/2013 [2013] HCA 53; (2013) 251 CLR 322 (error of law in applying a policy criterion for a protection visa that was inconsistent with statutory criteria for protection visa). See also the judgment and orders of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (‘SZQRB’) (denial of procedural fairness and error of law in that the assessment did not consider asylum claims against the level of satisfaction required by Australian law).

[8] High Court of Australia, Case Nos 75/2016 and 76/2016 (on appeal from SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1). The Minister’s appeals put in issue the Federal Court’s finding that the Federal Circuit Court had jurisdiction to deal with the applications for relief made by SZSSJ in an earlier appeal SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143; (2014) 231 FCR 285 (‘SZSSJ (No 1)’).

[9] See above n 7.

[10] Section 197C was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) and came into force on 16 December 2014.

[11] These appeals focus on the Federal Court’s finding that s 197C does not apply retrospectively to sur place claims arising from the Data Breach (SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 17–19 [53]–[59]), but also raise more fundamental questions about the effect of s 197C: see further, Part V below.

[12] Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 (‘S10/2011’).

[13] SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 5 [1].

[14] It appears that the process was in flux for some time, including after SZSSJ had commenced litigation in relation to the Data Breach: see SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 7–10 [13]–[23].

[15] Migration Act s 48A.

[16] SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 8 [14].

[17] Ibid 8 [14], 10 [22].

[18] SZSSJ was taken into detention on 3 October 2012, SZTZI on 11 September 2013: Minister for Immigration and Border Protection, ‘Appellants’ Chronology’, Submissions in Minister for Immigration and Border Protection v SZSSJ, Case Nos S75/2016 and S76/2016, 15 April 2016.

[19] SZTZI v Secretary of the Department of Immigration [2015] FCCA 1271 (12 May 2015). The litigation pathway for SZSSJ was: a judgment by the Federal Circuit Court of Australia dismissing SZSSJ’s application for want of jurisdiction (SZSSJ v Minister for Immigration [2014] FCCA 1379 (20 June 2014)) was overturned on appeal to the Federal Court (SZSSJ (No 1)); on remittal, the Federal Circuit Court dismissed the application (SZSSJ v Minister for Immigration (No 2) [2015] FCCA 1148 (28 April 2015)).

[20] SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 28–9 [97]–[106].

[21] Ibid 31–2 [116]–[121], 33 [124].

[22] Ibid 34 [129].

[23] Migration Act ss 474(7)(a), 476(2)(d): Minister for Immigration and Border Protection, ‘Appellants’ Submissions’, Submissions in Minister for Immigration and Border Protection v SZSSJ, Case Nos S75/2016 and S76/2016, 15 April 2016, 5–9 [20]–[35].

[24] Migration Act s 474(3)(h). It appears that the Minister does not press an earlier argument that s 197C excludes jurisdiction in relation to decisions that are made while s 198 is suspended, as to which see SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 13 [34].

[25] SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 20 [64]. The Court further found that the exclusionary provisions (which apply to decisions not to exercise the dispensing powers) do not cover SZSSJ’s application (the ITOA remains in process): at 20 [64].

[26] Australian Constitution s 75(iii) and (v), read with Migration Act s 474(1).

[27] SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 26 [87].

[28] Minister for Immigration and Border Protection, ‘Appellants’ Submissions’, Submissions in Minister for Immigration and Border Protection v SZSSJ, Case Nos S75/2016 and S76/2016, 15 April 2016, 12–13 [47]–[52].

[29] Offshore Processing Case (2010) 243 CLR 319, 352–4 [75]–[78]. See also the plurality analysis in S10/2011 (2012) 246 CLR 636, 657–9 [63]–[70] (Gummow, Hayne, Crennan and Bell JJ). Heydon J held that it was not necessary to decide: S10/2011 (2012) 246 CLR 636, 669 [104]. Chief Justice French and Kiefel J’s contrary minority view was based on the departmental inquiries in S10/2011 being inquiries that preceded any decision by the Minister to consider exercising his dispensing powers: S10/2011 (2012) 246 CLR 636, 651–5 [39]–[52].

[30] S10/2011 (2012) 246 CLR 636, 667–8 [98]–[100] (Gummow, Hayne, Crennan and Bell JJ), 672–3 [118] (Heydon J).

[31] SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 20–23 [69]–[75].

[32] Offshore Processing Case (2010) 243 CLR 319, 350–51 [70].

[33] Ibid.

[34] SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 22–26 [75]–[87].

[35] Minister for Immigration and Border Protection, ‘Appellants’ Submissions’, Submissions in Minister for Immigration and Border Protection v SZSSJ, Case Nos S75/2016 and S76/2016, 15 April 2016, 13 [51].

[36] S10/2011 (2012) 246 CLR 636, 667–8 [99]–[100] (Gummow, Hayne, Crennan and Bell JJ).

[37] Ibid 670–3 [108]–[118] (Heydon J).

[38] Minister for Immigration and Border Protection, ‘Appellants’ Submissions’, Submissions in Minister for Immigration and Border Protection v SZSSJ, Case Nos S75/2016 and S76/2016, 15 April 2016, 12–13 [47]–[52].

[39] S10/2011 (2012) 246 CLR 636, 668 [100] (emphasis added).

[40] Ibid 662 [80].

[41] While the dispensing powers under consideration in S10/2011 were, at the time, the only mechanism under the Migration Act whereby claims for complementary protection (ie protection complementary to Australia’s obligations under the Refugee Convention, based on its expanded non-refoulement obligations at international law) could be considered, this was not mentioned in the majority judgments in S10/2011 (2012) 246 CLR 636.

[42] Ibid 667–8 [99], see, eg, at (v); (vii); (ix).

[43] Ibid 662 [80] and similarly 668 [100].

[44] Ibid 668 [100] referring to South Australia v O’Shea (1987) 163 CLR 378, 410 (Brennan J) (‘O’Shea’).

[45] O’Shea (1987) 163 CLR 378, 389 (Mason CJ), 412 (Brennan J).

[46] Ibid 389 (Mason CJ), 412 (Brennan J).

[47] SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 17–19 [53]–[59].

[48] The question has been raised by the Minister’s submissions in earlier cases where the High Court has not found it necessary to decide: M76/2013 [2013] HCA 53; (2013) 251 CLR 322, 390–91 [230]–[231] (Kiefel and Keane JJ; with whom Crennan, Bell and Gageler JJ agreed); S4/2014 (2014) 253 CLR 219, 235 [40].

[49] The Minister’s position in this appeal is that he will not terminate consideration that is incomplete in fact (this is the premise for the Minister’s submission that the Federal Court erred in granting an injunction to restrain SZSSJ’s removal): Minister for Immigration and Border Protection, ‘Appellants’ Submissions’, Submissions in Minister for Immigration and Border Protection v SZSSJ, Case Nos S75/2016 and S76/2016, 15 April 2016, 20 [79] citing SZSSJ v Minister for Immigration [2015] FCCA 1148, [25]. This position defers consideration of the issue for SZSSJ, but it remains relevant to relief for applicants in SZTZI’s situation (although SZTZI withdrew her application to Federal Circuit Court for an injunction to restrain removal). Compare, for example, the Minister’s position as described in the proceedings in SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, 554 [267]: ‘[t]he Minister’s decision ... unambiguously is that he will allow SZQRB to be removed from Australia whether the ITOA which was provided was factually or legally correct’.

[50] See above n 7.

[51] See, eg, M76/2013 [2013] HCA 53; (2013) 251 CLR 322, 361–2 [109]–[111] (Hayne J); note S4/2014 (2014) 253 CLR 219, 234–5 [37]–[41].

[52] See above n 5.

[53] [2013] HCA 53; (2013) 251 CLR 322.

[54] The Department’s assessment of M76/2013 (undertaken to inform a decision under s 46A(2)) had been unfavourable because of the application of an invalid criterion: M47/2012 v Director General of Security (2012) 251 CLR 1.

[55] M76/2013 [2013] HCA 53; (2013) 251 CLR 322, 340–41 [24], 341 [26] (French CJ), 345–6 [37], 355 [80]–[81], 357–8 [88]–[94] (Hayne J), 368 [135] (Crennan, Bell and Gageler JJ).

[56] Plaintiff M70 [2011] HCA 32; (2011) 244 CLR 144, 178 [54] (French CJ), 191–2 [95]–[99] (Gummow, Hayne, Crennan and Bell JJ), 231–32 [239] (Kiefel J) (‘M70/2011’).

[57] SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, 544–6 [200], 546 [204]; applied in SZSSJ (No 2) [2016] FCA 1081; (2015) 234 FCR 1, 16 [46], 17–19 [53]–[59].

[58] S4/2014 (2014) 253 CLR 219, 235 [40].

[59] Ibid 235–9 [40]–[52].

[60] The High Court in S4/2014 expressly left open whether the Minister can stop consideration of the exercise of the dispensing powers: ibid 235 [40].

[61] Following Offshore Processing Case (2010) 243 CLR 319, 348–51 [62]–[71].

[62] S4/2014 (2014) 253 CLR 219, 231–2 [25]–[29]; 235 [40], 237 [47].

[63] M76/2013 [2013] HCA 53; (2013) 251 CLR 322, 340–41 [24], 342 [28] (French CJ), 357–8 [88]–[94] (Hayne J). Kiefel and Keane JJ (with whom Crennan, Bell and Gageler JJ agreed) did not decide: at 390–91 [230]–[231].


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/SydLawRw/2016/11.html