Plaintiff S28/2018 v Minister for Home Affairs & Ors [2018] HCATrans 168 (29 August 2018)

Last Updated: 31 August 2018

[2018] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S28 of 2018

B e t w e e n -

PLAINTIFF S28/2018

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

NATHAN (POSITION NO. 60008218) DELEGATE OF MINISTER OF THE DEPARTMENT OF HOME AFFAIRS, THE MINISTERIAL INTERVENTION UNIT

Third Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 29 AUGUST 2018, AT 10.54 AM

Copyright in the High Court of Australia

MR A. MARKUS: May it please the Court, I appear for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Call the matter outside the Court, please.

COURT OFFICER: No appearance, your Honour.

MR MARKUS: Your Honour, could I seek to file in Court two affidavits of service?

HIS HONOUR: Yes, certainly.

MR MARKUS: Your Honour, the first affidavit is one of Andrew Ng-Saad who is a licensed process server and the affidavit was sworn on 13 July this year. That affidavit deals with the service of the first defendant’s summons and the affidavit of Ms Nanson that was affirmed on 3 July this year. The second affidavit is that of Ms Angela Nanson which was affirmed on 27 August this year and it deals with the service of the defendant’s submissions.

HIS HONOUR: Yes, thank you. You have leave to file those affidavits in Court and I read those affidavits.

MR MARKUS: Thank you, your Honour. Your Honour, my application today is for orders under rule 13.03.4 of the High Court Rules which provides that if the application is listed for hearing and the applicant fails to attend the hearing the Court or a Justice may dismiss the application or make any other appropriate order. Your Honour, our position otherwise is set out in the written submissions that I take your Honour would have read.

HIS HONOUR: Yes, I have, Mr Markus. Thank you.

MR MARKUS: On that basis, if your Honour is not minded to dismiss the proceeding under the rule I just referred to, we would ask that your Honour dismiss the proceeding pursuant to rule 25.03.3 which provides that on the hearing of an application for an order to show cause, a Justice may order that the application be dismissed.

HIS HONOUR: Mr Markus, I am inclined to deal with the matter on its merits.

MR MARKUS: Thank you, your Honour.

HIS HONOUR: For that purpose, I should formally take into evidence the affidavit material on which the parties rely in respect of the substantive application. So that is the plaintiff’s affidavit of 12 July 2018.

MR MARKUS: Yes, your Honour, and our affidavit which is an affidavit of Ms Nanson which was affirmed on 22 August 2018.

HIS HONOUR: Yes, thank you. I will read those affidavits and admit the respective exhibits.

MR MARKUS: Thank you.

HIS HONOUR: Thank you, Mr Markus. I have looked at the written submissions and I do not need any further assistance.

MR MARKUS: I am grateful, your Honour.

HIS HONOUR: The plaintiff seeks judicial review in the original jurisdiction of this Court of what are identified as decisions of the third defendant, an officer of the then Department of Immigration and Border Protection, not to refer to the Minister for Immigration and Border Protection request by the plaintiff in the exercise by the Minister of non-compellable powers under section 48B and section 417 of the Migration Act 1958 (Cth) following refusal by a delegate of the Minister of the plaintiff’s application for a protection visa in a decision affirmed on review by the Administrative Appeals Tribunal.

The plaintiff has not appeared at the scheduled hearing of the application this morning. Mr Markus, who appears for the Minister for Home Affairs, urges that the application, having been listed for hearing, and the applicant having failed to attend, ought to be dismissed in the exercise of the power conferred by rule 13.03.4 of the High Court Rules 2004 (Cth).

Having considered the merits of the plaintiff’s application, however, my intention is to address the merits of the application and to accede to the request to dismiss the application, but to do that under rule 25.03.3(a) of the High Court Rules.

The two requests, to which I have referred, were made by the plaintiff by letter dated 13 December 2017. The outcome of each request was notified to the plaintiff by a separate letter from the third defendant dated 12 January 2018. By each letter, the third defendant notified the plaintiff that his request had been assessed against Ministerial guidelines which described the types of cases that should be referred to the Minister and that his request had been assessed not to meet those guidelines.

The present proceeding was commenced by application for an order to show cause filed by the plaintiff on 12 February 2018. The application identifies four grounds for relief. I will deal with each of them in turn.

The first ground is that the Minister cannot delegate the exercise of his powers under sections 417 and 48B of the Act. It is true that both the Minister’s power to substitute for a decision of the Tribunal a decision that is more favourable to an applicant and the Minister’s power to determine that the restriction in section 48A of the Act does not apply to an applicant can only be exercised personally. But neither power has been exercised, or has been purported to be exercised, in relation to the plaintiff. Indeed, the Minister’s statutory powers have not been engaged at all. All that has happened here is that an officer of the Department has decided not to refer the two requests from the plaintiff to the Minister. If the plaintiff, by this ground of the application, seeks to argue that the Minister must personally consider every request for intervention under either of those sections, such an argument is unavailable in light of prior decisions of the Full Court of this Court.

The second ground is that the “assessment process” conducted by the Department regarding the possible referral of the plaintiff’s requests to the Minister was not done under the Act, but in the exercise of non-statutory executive power under section 61 of the Constitution. That proposition can be accepted as correct, but it does not follow that there was any want of authority for, or legal error in, what the Department did.

The third and fourth grounds of the application are effectively the same. The third ground is that the third defendant, in deciding not to refer the plaintiff’s requests to the Minister, denied the plaintiff procedural fairness. The fourth ground is that the third defendant “failed to make inquiries according to law and procedural fair[ness]”. Put simply, the grounds are foreclosed by the holding of the Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31.

The plaintiff relies in his written submissions also on statements of Justice Kiefel, as her Honour then was, in Ordonez v Minister for Immigration and Multicultural Affairs [2000] FCA 736 at paragraph 16. Nothing her Honour said in that case lends weight to any aspect of the plaintiff’s argument.

The application for an order of review for those reasons fails to disclose an arguable ground for impugning the Departmental conduct in question, and it is for those reasons that I dismiss it, as I foreshadowed, under rule 25.03.3(a). The order I make is therefore on that basis that the application is dismissed with costs.

MR MARKUS: If the Court pleases.

HIS HONOUR: Thank you, Mr Markus.

AT 11.06 AM THE MATTER WAS CONCLUDED