Plaintiff S112/2020 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors [2020] HCATrans 204 (27 November 2020)

Last Updated: 30 November 2020

[2020] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S112 of 2020

B e t w e e n -

PLAINTIFF S112/2020

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Defendant

SECRETARY FOR THE DEPARTMENT OF HOME AFFAIRS

Second Defendant

RASHMI OF THE MINISTERIAL INTERVENTION IN THE DEPARTMENT OF HOME AFFAIRS

Third Defendant

BENJAMIN OF THE MINISTERIAL INTERVENTION IN THE DEPARTMENT OF HOME AFFAIRS

Fourth Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 NOVEMBER 2020, AT 9.31 AM

Copyright in the High Court of Australia

____________________

HER HONOUR: On 2 July 2020, the plaintiff filed an application for a constitutional or other writ. For the reasons that I now publish the application is dismissed with costs.

The order of the Court is:

1. Application dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) with costs.

I publish that order and the reasons. I direct that the reasons be incorporated into the transcript.

The plaintiff is a national of Sri Lanka. On 31 July 2012, the plaintiff entered Australia by sea in circumstances that made him an “unauthorised maritime arrival” (“UMA”) under the Migration Act 1958 (Cth) (“the Act”). On 6 December 2012, following a favourable determination under s 46A(2) of the Act, the plaintiff made a valid application for a protection visa. On 23 September 2013, the plaintiff’s application was refused. Thereafter, the plaintiff exhausted avenues for both merit and judicial review.

Following the dismissal by this Court of his application for special leave to appeal from the orders of the Federal Court of Australia (Farrell J), the plaintiff submitted requests to the first defendant, the Minister for Immigration, Citizenship and Multicultural Affairs (“the Minister”), to exercise his powers: (i) under s 48B of the Act, to allow the plaintiff to make a further application for a protection visa; and (ii) under s 417 of the Act, to substitute a decision more favourable to the plaintiff for the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal). The former request was dealt with by the third defendant, an officer in the Department of Home Affairs (“the Department”), and the latter was dealt with by the fourth defendant, also an officer in the Department. Neither request was found to meet the Ministerial guidelines for bringing requests to the Minister’s personal attention. Each request was finalised without being referred to the Minister for his consideration.

On 2 July 2020, the plaintiff filed an application for a constitutional or other writ. The plaintiff claims: (i) a declaration that the refusal to refer his requests to the Minister was “not appropriate” and constituted a denial of procedural fairness; (ii) a declaration that in making the decision not to refer his requests to the Minister, the third and fourth defendants denied him procedural fairness; (iii) certiorari directed to the third and fourth defendants to quash their decisions not to refer his requests to the Minister; and (iv) mandamus directed to the Secretary for the Department, the second defendant, requiring that an assessment be made of the plaintiff’s requests for the exercise of the Minister’s powers under ss 48B and 417 and the Ministerial Guidelines and not otherwise than in accordance with the requirements of procedural fairness. The Minister submits that the application does not disclose an arguable basis for the relief that is sought.

The grounds on which the relief is claimed contend first, that the Minister cannot delegate the exercise of his powers under ss 48B and 417 of the Act. Secondly, the assessment process conducted by the Department was undertaken in the exercise of non-statutory executive power under s 61 of the Constitution. Thirdly, the officers who finalised his request for Ministerial intervention failed to afford him procedural fairness or failed to make inquiries according to law. These are template grounds that have been dismissed by this Court on a number of occasions recently. Some of those occasions are collected in Plaintiff S322/2018 v Minister for Immigration, Citizenship and Multicultural Affairs^[1]. Consistently with the analysis in those cases, the grounds on which the plaintiff’s application depends do not disclose an arguable basis for the relief claimed. For this reason, the application is determined without listing it for hearing^[2].

In short, it is uncontroversial that the powers conferred by ss 48B and 417 of the Act may only be exercised by the Minister personally. However, it is not contended that the Minister’s powers have not been exercised at all in the plaintiff’s case and thus no question of impermissible delegation arises. Nor is it contended that the Minister has made a personal procedural decision to consider whether to make a decision under s 48B or s 417 of the Act in the plaintiff’s case. It may be accepted that the third and fourth defendants acted in the exercise of non‑statutory executive power in determining the plaintiff’s requests, but this acceptance does not support his case for the relief that he claims^[3]. The contention that the third and fourth defendants failed to afford the plaintiff procedural fairness, or to make inquiries according to law, must fail as the exercise of power to not refer a request for Ministerial intervention is not conditioned by the obligation to afford procedural fairness^[4].

The plaintiff states that he is currently unemployed and is reliant on minimal assistance from friends for living costs. He submits that an order for costs would cause him severe financial hardship. The plaintiff’s impecuniosity does not provide a principled reason to decline to make an order for costs^[5].

Order

For these reasons, there will be the following order:

Application dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) with costs.

AT 9.32 AM THE MATTER WAS CONCLUDED

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^[1] [2019] HCATrans 096 per Edelman J. See also Plaintiff S53/2019 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 136 per Gageler J; AWI16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 137 per Gageler J; AKC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 173 per Gordon J.

^[2] High Court Rules 2004 (Cth), r 25.09.1.

^[3] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at 200 [54].

^[4] Plaintiff S10 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 654‑655 [50]‑[52] per French CJ and Kiefel J, 668 [100] per Gummow, Hayne, Crennan and Bell JJ, 673 [119] per Heydon J.

^[5] Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164.