Plaintiff S122/2018 v Minister for Home Affairs & Ors [2018] HCATrans 209 (11 October 2018)

Last Updated: 11 October 2018

[2018] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S122 of 2018

B e t w e e n -

PLAINTIFF S122/2018

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

NATHAN IN THE MINISTERIAL INTERVENTION OF THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON THURSDAY, 11 OCTOBER 2018, AT 9.00 AM

Copyright in the High Court of Australia

HIS HONOUR: Mr Crier, would you call the matter outside, please? Mr Deputy Registrar in Sydney, could you call the matter outside, please?

COURT OFFICER: No appearance in Sydney, your Honour.

HIS HONOUR: Thank you, Mr Registrar.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Thank you, Mr Crier.

MR B.K. LIM: May it please the Court, I appear for the defendants. (instructed by Australian Government Solicitor)

HIS HONOUR: Thank you, Mr Lim. Mr Lim, you will have seen, no doubt, the reply submissions that were sent to the Registrar last evening.

MR LIM: I have seen those.

HIS HONOUR: In view of the absence of the plaintiff, I was proposing to proceed, having regard to those. Is there anything you wish to say in opposition to that?

MR LIM: No, there is not.

HIS HONOUR: Or anything further?

MR LIM: Nothing further, your Honour.

HIS HONOUR: Thank you, Mr Lim.

This application was originally listed for hearing on 3 October 2018 with directions that the plaintiff should file his reply submissions by 26 September 2018.

On the morning of 2 October 2018, the plaintiff contacted the Deputy Registrar seeking an adjournment of the hearing on the basis that he required more time to file his reply submissions. I granted that adjournment. The adjourned hearing was listed for this morning and the plaintiff was given until 12 noon on 8 October 2018 to file his reply submissions. No such submissions were received by that time.

Yesterday afternoon, however, the plaintiff sought to lodge further submissions. Then, at just past 5.00 pm yesterday afternoon, the plaintiff sent an email to the Deputy Registrar, stating that because he is an old man of 55 he “may not be able to get up and present at 9.00 am tomorrow for the hearing” and seeking an adjournment or “in the alternative . . . the Court excuse [him] and look at [his] documents and make appropriate orders”. The plaintiff was advised by return email that the hearing would proceed this morning.

The matter having been called, the plaintiff has not appeared. In the circumstances, I propose to proceed in his absence off the documents before me, including his further reply submissions that were sent yesterday.

For the written reasons which I have prepared and which I now direct be incorporated in the transcript, the plaintiff’s application should be dismissed.

This is an application for declarations and for an order to show cause why certiorari should not go to the third defendant (“the officer”) to quash the officer’s decision of 16 April 2018[1] not to refer the plaintiff’s requests under ss 48B and 417 of the Migration Act 1958 (Cth) to the first defendant (“the Minister”) and why mandamus or an injunction should not go to the second defendant (“the Secretary”) directing the Secretary and his officers to make an assessment of the plaintiff’s request of 13 March 2018 for the exercise of the Minister’s power under ss 48B and 417 of the Migration Act.

The facts

The plaintiff is a Tamil citizen of Sri Lanka who arrived in Australia in July 2012 as an unauthorised maritime arrival. In December 2012, he applied for a protection visa but on 31 July 2013, a delegate of the Minister refused the application. The plaintiff applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”) for review of the delegate’s decision but on 18 May 2015 the Tribunal affirmed the delegate’s decision. The plaintiff applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision but on 8 February 2017, the Federal Circuit Court dismissed the application[2]. The plaintiff appealed to the Federal Court of Australia but on 15 August 2017, the Federal Court dismissed the appeal[3]. The plaintiff applied for special leave to appeal to this Court but on 15 February 2018, the application was dismissed[4].

By letter dated 13 March 2018, the plaintiff requested the Minister to exercise his power under s 417 of the Migration Act to grant the plaintiff a visa on compassionate and humanitarian grounds or alternatively to exercise his discretion under s 48B to permit the plaintiff to make a further application for a protection visa notwithstanding s 48A. By letter dated 3 April 2018, the officer advised the plaintiff that the plaintiff’s request had been “assessed against the Minister’s Guidelines – s 48A cases and requests for s 48B Ministerial intervention” and that it did not meet the Guidelines, with the result that the plaintiff’s request had “therefore been finalised by the Department without referral”. By letter dated 4 April 2018, another officer advised the plaintiff that the plaintiff’s application under s 417 had been similarly disposed of.

Grounds 1 and 2: non-delegation

Under Ground 1 of his application, the plaintiff contends that the Minister cannot delegate the exercise of his powers under ss 48B and 417 of the Migration Act and under Ground 2 he contends that the assessment of his requests under ss 48B and 417 were dealt with by Departmental officers in the exercise of non-statutory executive power under s 61 of the Constitution and thus, presumably, beyond jurisdiction.

I reject Grounds 1 and 2. As was decided in Minister for Immigration and Border Protection v SZSSJ[5], drawing on the judgments in Plaintiff S10/2011 v Minister for Immigration and Citizenship[6], each of ss 48B and 417 confer on the Minister a non-compellable power exercisable only by the Minister. Each power involves making two decisions: a procedural decision to consider whether to make a substantive decision and, if the Minister makes a procedural decision in favour of proceeding to a substantive decision, a substantive decision whether to grant a visa (in the case of the power under s 417) or lift the bar imposed by s 48A (in the case of the power under s 48B)[7]. The Minister, however, is under no obligation to make either decision, and so, before the Minister makes a procedural decision whether to proceed, there is nothing that prevents Departmental officers undertaking processes on the Minister’s instructions to assist the Minister making the procedural decision[8]. Such processes have no statutory basis. They are undertaken in exercise of non-statutory executive power[9] and they attract no requirement to afford procedural fairness[10]. There is, therefore, nothing to prevent Departmental officers on the Minister’s instructions determining in accordance with Ministerial guidelines whether an application under s 48B or s 417 is or is not of a kind that should be referred to the Minister for decision. As was held in SZSSJ[11], the question of whether the Minister has made a procedural decision to consider whether to grant a visa or to lift the bar is a question of fact. Here it is apparent on the uncontested facts that the Minister did not make any such decision. As the plaintiff was advised, his requests for Ministerial intervention under ss 48B and 417 were disposed of by the Department in accordance with Ministerial guidelines without reference to the Minister.

The plaintiff contends that “there are significant changes made to the Migration Act 1958 and the process of the Unauthorised Maritime Arrivals (UMAS) dealing with their application for protection in Australia after the case decision of Plaintiff S10/2011”. He did not identify what changes he had in mind or why they should be thought to have affected the principles stated in Plaintiff S10/2011 and affirmed in SZSSJ. I am unable to discern any changes which might arguably have had that effect. The position remains as stated in Plaintiff S10/2011 and SZSSJ.

Grounds 3 and 4: procedural fairness

Under Grounds 3 and 4, the plaintiff contends that the officer failed to afford procedural fairness to the plaintiff and failed to make inquiries according to law and procedural fairness. The nature of the inquiries which it is contended the officer was bound to make is not specified. But, in any event, as has been explained, where, as here, the Minister has not made a personal decision to consider whether to make a substantive decision, processes undertaken by the Department on the Minister’s instructions to assist the Minister to make a procedural decision have no statutory basis and do not attract a requirement to afford procedural fairness.

Conclusion

It follows that the application should be dismissed with costs.

Thank you, Mr Lim.

MR LIM: If it please the Court.

HIS HONOUR: Adjourn the Court.

AT 9.04 AM THE MATTER WAS CONCLUDED

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[1] The copy of the officer's decision tendered by the plaintiff indicates that the decision was in fact made on 3 April 2018.

[2] BBR15 v Minister for Immigration and Border Protection [2017] FCCA 209.

[3] BBR15 v Minister for Immigration and Border Protection [2017] FCA 1196.

[4] BBR15 v Minister for Immigration and Border Protection [2018] HCASL 17.

[5] (2016) 259 CLR 180; [2016] HCA 29.

[6] (2012) 246 CLR 636; [2012] HCA 31.

[7] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at 200 [53].

[8] Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 at 665 [91] per Gummow, Hayne, Crennan and Bell JJ.

[9] SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at 200 [54]. See also Plaintiff S10/2011 [2012] HCA 31; (2012) 246 CLR 636 at 655 [51] per French CJ and Kiefel J; Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168 per Gageler J.

[10] Plaintiff S10/2011 [2012] HCA 31; (2012) 246 CLR 636 at [50]- [53] per French CJ and Kiefel J, 666 [94], 668 [100] per Gummow, Hayne, Crennan and Bell JJ, 672-673 [118]-[119] per Heydon J; SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at 200 [54].

[11] [2016] HCA 29; (2016) 259 CLR 180 at 200 [55].