Minister for Home Affairs & Anor v CLM18 [2020] HCATrans 53 (17 April 2020)

Last Updated: 21 April 2020

[2020] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S318 of 2019

B e t w e e n -

MINISTER FOR HOME AFFAIRS

First Applicant

INFORMED REFERRAL TO STATUS RESOLUTION OFFICER

Second Applicant

and

CLM18

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 17 APRIL 2020, AT 12.03 PM

Copyright in the High Court of Australia
MR S.B. LLOYD, SC: May it please the Court, I appear with MS J.E. DAVIDSON for the applicants. (instructed by Australian Government Solicitor)

MR J.F. GORMLY: May it please the Court, I appear for the respondent with MR D.J. McDONALD‑NORMAN. (instructed by Hall & Wilcox Lawyers)

NETTLE J: Yes, Mr Lloyd.

MR LLOYD: Thank you. As the Court will appreciate, this application contains three matters arising out of - in the context of decision‑making for cohorts of people, rather than individuals. The three matters all arise out of a submission to the Minister in September 2017. A little bit of context is relevant. In essence, from 2015 to 2017 the Minister had raised the section 46A bar to allow about 32,000 people to apply for, in effect, protection visas. They were not time constrained raising of the bar.

There was a decision made by the government in about May that there should be a time limit within which people should apply, and that was advertised in May, and then in September a decision was made to bring to an end the raising of the bar and in so doing there was a recognition that some people, some of the 32,000, and I think the estimate, by that time I think there were about 1500 who had not yet applied, and there was an expectation that there might be about 800 in a so‑called cohort of people who would be non‑lodgers, who still would not have applied when the deadline comes out, and the submission also noted the arrangements to be dealt with for the non‑lodgers. So it asked for a decision in relation to the creation of the deadline, but noted to the Minister what arrangements would be put in place for non‑lodgers.

GORDON J: How many are left, Mr Lloyd? How many are left affected by this?

MR LLOYD: Well, it depends what “affected” means. I think my instructions are there is in the order of 40 non‑lodgers still in the country. But if this decision is correct, my client faces potential tortious liability for having involuntarily removed some people in circumstances where they were denied procedural fairness.

So the implications are broader than just the 40 or so that are left. There are some cases that follow this, but I am not saying 40, much less than that. So in terms of the first issue, which is ultimately whether or not this submission should be construed or - an inference arises from this submission that there was a personal procedural decision to consider exercising the power under section 46A – that is, a decision by the Minister personally to raise the bar.

Now, the context is - and we say that the context is important and the Full Court really gave no weight at all to it - that the Minister was dealing with it in respect of people who he was lowering the bar. So the whole decision was to lower the bar. Then he did not know how many people would be non‑lodgers at this future point in time and so he was told what arrangements would be put in place.

We say that it just is not open on this material realistically to say that at that time that he was saying to this exact same group of people, “You have a deadline, after which you cannot put in an application any more” he is also saying, “But I am going to consider raising the bar that I have just lowered”. We say that that makes no sense.

Where the court gets that from is from – if your Honours have the application book on page 4, they say that the distinction between “noted/please discuss” in relation to the item 3 was a decisional step because you would not need to discuss – there would be no need to discuss something if it was not a decision. We just say that that is not at all a compelling suggestion in the context.

There is the fact that the Minister, in his own handwriting over the page, indicated that in relation to the removal aspect of the processing, he wanted the health test to be done by the Commonwealth medical officer. That just cannot add to the suggestion and cannot carry any weight to the suggestion that he was deciding that he would consider raising the bar for the exact same group he had just decided to remove the bar.

GORDON J: But what about the statement on the application book page 3, paragraph 10, this idea there will be an assessment undertaken?

MR LLOYD: Yes, indeed, there would be an assessment undertaken. That assessment was an assessment that would be undertaken concurrently. Now, that is under the heading “Background”.

GORDON J: It has:

Non-lodgers – next steps - - -

MR LLOYD: Yes, which is itself a subheading under the heading “Background”. So the Minister is being informed as to what the Department - what processes the Department is putting in place. So if your Honours see in paragraph 6, it says:

The Department continues to monitor and put in place arrangements –

So they are not even finalised. It is not the Minister making a decision. It is the Minister being told what is being put in place. We do not deny that there was an expectation that non‑lodgers would go through an IRSR process. That was what was done, but it was not the Minister’s decision.

You have to bear in mind that the effect of the Full Court’s decision is that the Minister decided for everyone he was lowering the bar for he would consider raising the bar for that exact same group of people. One can see that that was not the case through two paragraphs in particular not mentioned by the Full Court.

The first is one is paragraph 4 which deals with amendments to the guidelines. I will let your Honours just have a look at that. The same issue is also dealt with in a little more detail in paragraph 12. What one sees from that is that the Minister was saying “I want the guidelines changed and that previously I was much more broadly prepared to consider exercising my section 46A power in respect of these people who had never been able to put in applications, but now I want to only consider a subset of people who have the ‘compelling and compassionate’ circumstances”.

One sees that even further in page 27 of the application book where one sees what the change is to the guidelines. The one called “Current” is the existing one which was a broad willingness to consider everybody, and the new one is one where he is only prepared to consider a subset of the group.

So we just say that with respect to the Full Court it is just not a fair or open reading to say that the Minister was making a procedural - a personal procedural decision in respect of non‑lodgers, bearing in mind that non‑lodgers at this point in time are not a known class even - query whether section 46A even allows for a non‑existent class to commence consideration, but even assuming it does, it is clear that he is not considering raising the bar for all of that group because he has especially said that he only wants a subset to be referred to him ‑ ‑ ‑

NETTLE J: Mr Lloyd, accepting for the sake of argument that what you say is correct, with respect, is it not at the end of the day just a question of fact as is said in SZSSJ, as to whether what has been done does amount to a personal decision by the Minister whether or not to embark upon consideration of lifting the bar.

MR LLOYD: It is a question of fact. I do not want to pretend that it is not and I accept ‑ ‑ ‑

NETTLE J: Then are we not stuck – how can one grant special leave on a question of fact like that?

MR LLOYD: Well, obviously the Court would not want to do a question of fact which was just about disputed evidence. But this is an unusual question of fact which affects a cohort of, you know, potentially up to 800 people ‑ ‑ ‑

NETTLE J: Is there an error of principle involved? Can one identify one?

MR LLOYD: Well, the court identified the idea that the fact that it was cohort decision‑making was relevant and one sees – there is a decision I cannot draw the Court’s attention to that was handed down by Justice Moshinsky today, another one of these personal.....decisions in which the Minister had said that he would take no further action and that would still - even a ministerial action to take no further action was construed as a positive decision – a personal procedural decision.

We are saying that the Court needs to looks at this perhaps within the concept of its visitation role – to look at what is being done in construing ministerial submissions in order to find personal procedural decisions. But we also say that the second issue that we rely upon is a matter of general public importance and a question of law. It involves what is a sufficient interest to engage procedural fairness, so that is a clear question of law.

The court identified in this case what this Court had said in two previous decisions, Plaintiff M61 and SZSSJ, and in both of those decisions this Court had said a sufficient interest arose because prolongation of detention was either a consequence or an effect of the process that was put in place. So it had that kind of essence of being a necessary consequence of effect because the process put in place would constitute - or would lead to a prolongation of detention.

Now, the Full Court at paragraph 53 in application book page 126 barely acknowledges that this Court’s authorities do not offer any direct support for the contention that a non de minimis possibility of detention was of sufficient interest. However, that is the principle that they have drawn and sought to apply.

We say that that is a very thin interest to impose an obligation of procedural fairness, especially in the context of cohort decision‑making. Is it enough, say, that three of 800 people will possibly have their detention prolonged and does that mean that all 800 of them get natural justice because the approach of the Court is to say it has to be assessed as at the time that the decision is made.

That is when one undertakes the review. One sees that in paragraph 58, as I recall, and we say that if that is the right approach then the idea that a mere non de minimis possibility is not something this Court has ever said, we say that is a matter of very significant importance, it affects many people, at least in the context of migration decision‑making, and this Court should grant special leave in order to assess where the gap is between whether there has to be certainty or whether a non de minimis possibility is enough and we noted that - that is a very big gap between certainty and non de minimis possibility.

For example, if the standard was here that prolongation of detention would occur in the ordinary course of events or would be reasonably expected to occur, that is a middle ground, but a middle ground that.....this case. In this case, the court seemed to accept, at paragraph 59, that the prospects were low, but in paragraph 60, not so low as to be said to be a non de minimis possibility.

So we say that that issue is an important matter - point of law. It has broad ramifications not only for this case and other cases involving this decision, but for all cohort decision‑making, and all decision‑making involving procedural fairness, and it is very much worthy of the Court’s consideration. If the Court were to consider that issue it should also consider the first and the third issues.

The third issue is whether the court then erred in applying the test that it established, that is, that there was a non de minimis possibility. So here, the court’s analysis is largely on paragraphs 59 and 60, but what one sees the court does not do is weigh at all in the balance what is said in paragraph 9 of the submission, and that is on page 6 of the book. It says:

IMAs who do not lodge before the deadline will be referred to Status Resolution officers in the Department’s State and Territory offices. They will be granted a Final Departure Bridging E visa.

So the plan was that all of these people, if they went to the Department, would get a bridging visa, so there was no plan that any of them would be put in detention. Now, that point is critical and simply not mentioned by the Full Court – I mean, not mentioned in this context of making the finding of fact.

So what they do is they say, well, look at the processes in paragraph 9, they are removal processes, and then the processes in paragraph 10, they are the non‑refoulement consideration processes. Now, we said, well, the word “concurrently” in paragraph 10 was important because it shows that there was an understanding that the Minister’s
Department could only do it concurrently because there could not be a prolongation of detention.

We took the Court’s attention to section 197C of the Act and that is also in the book on page 177. So the findings of fact should have been done in the context that my client was subject to 197C, which is to say that consideration of non‑refoulement obligations is not a constraint on removal, it is an irrelevancy for removal. But we said, when one reads it as being done concurrently it means that.....lot of people would not even be in detention but if they were in detention the Minister would only have so much time to pay for them to be removed. So we say that that is an important issue.

NETTLE J: Thank you, Mr Lloyd.

MR LLOYD: If I can just add one further factual matter. In relation to this issue, the court also paid attention to the fact that the processes under – and this is at paragraph 62 – there would be more people involved in doing a removal assessment than in an IRSR assessment, but we say that would suggest that it is longer. We also say that there was no evidence at all before the court that suggested that an IRSR took longer. In fact, in this very case the only evidence was that two IRSR decisions were made and there was a finding uncontroverted that that did not extend or prolong detention.

So what we know is that there was no evidence at all that there was any prolongation of detention in this case or that it was likely or even a non de minimis possibility. So we say that these are important matters the Court should determine. May it please the Court.

NETTLE J: Thank you. Mr Gormly.

MR GORMLY: Your Honours, I submit that it is only the first - the second ground that raises a question of law. Grounds 1 and 2 both concern factual matters. In relation to my friend’s submission that the court’s assessment of a – or its conclusion that there was a personal procedural decision, was somehow upset by its reasoning that it applied to a whole cohort, it should be said - and it is relevant to ground 2 - that while, yes, the court did make a finding that the personal procedural decision applied to the whole cohort it did not follow from that that all those in the cohort would need to be afforded procedural fairness in respect of the conduct of the assessment at paragraph 10 of the submission.

The finding of a personal procedural decision is not a finding – is not a decision to afford procedural fairness, and there is no error of the Full Court to find a personal procedural decision – apply it to the entire cohort and then to consider whether the respondent, individually, had a sufficient interest arising from the course of that process to engage procedural fairness obligations.

NETTLE J: Is there not some inconsistency between this Court’s decisions in S10 and M61 as to what is required to constitute a personal decision of the Minister whether to proceed to consider and the result with which the Full Court came up in this case?

MR GORMLY: Your Honour is referring to the assessment of interests necessary to – that would give rise to a procedural fairness ‑ ‑ ‑

NETTLE J: Yes. After all, all that happened was that the Minister signed off on some guidelines that were proposed to him by his Department as to how they would go about assessing whether or not to submit to him for his consideration the question of whether he would enter into a consideration of lifting the bar for a particular applicant?

MR GORMLY: In Plaintiff M61, and I submit in this case, properly, the courts look to the individual circumstances of the applicants. In Plaintiff M61 they were being detained. In this case, at the time of the personal procedural decision, the respondent’s bridging visa had expired, he was an unlawful non‑citizen and there was a statutory obligation to detain him.

NETTLE J: Yes.

MR GORMLY: So we are not talking about a hypothetical, because he was actually detained and kept in detention for a year while the Federal Circuit Court made its decision. But at the time of the personal procedural decision, he was an unlawful non‑citizen and liable to be detained. It was proper for the Full Court to assess the interest, having regard to his detention.

NETTLE J: Put aside the interest. How does the fact that he is detained pending his deportation or removal from the country affect the question of whether the Minister’s notation of the recommendations as to how the Department would go about their process of working out whether to submit cases to him was a personal decision by him to enter upon consideration of the application of 46A(2) to this applicant?

MR GORMLY: Well, they are separate questions, your Honour. One, the notation was a final step in the personal procedural decision. Now, the assessment of the interest was in respect of the respondent’s individual circumstances. So they are different decisions; one does not follow from the other. That is why an important – a question of law of ‑ ‑ ‑

NETTLE J: I am sorry; I am not quite getting to the point. What I am trying to get at is this. It has been decided by the Full Court that the Minister’s notation of the recommended guidelines constituted a personal decision in respect of each member of the whole cohort to make a personal assessment of whether or not the Minister would entertain the application of 46A(2) to that applicant.

MR GORMLY: Yes.

NETTLE J: I cannot see how. How can it possibly be so?

MR GORMLY: Well, the conclusion of his Honour was that it was not just the signing of the – sorry, the circling of the notation. His Honour concluded at application book 124 at paragraph 49 of his decision that:

in his responses to the Ministerial submission . . . the Minister did make a personal procedural decision –

So, not just the notation; it included matters such as the Minister’s personal involvement in the making of the – sorry, the fact that he read the decision and that he had made comments on the decision and was given an opportunity to make comments on the decision. His Honour also reasoned in terms of the likelihood of a personal procedural decision because of the existence of a cohort of persons likely to be affected which was - - -

GORDON J: Did he also rely upon what I put to Mr Lloyd, and that is what is set out in application book 3 at paragraph 10?

MR GORMLY: Yes, that was really the subject of the - well, the main subject of the notation of arrangements at 3. So this is the institution of a separate assessment of protection‑based barriers to removal which was different from the guidelines which were being promulgated, which were the subject of paragraph 12 of the submissions. It concerned a particular group of people, non‑lodgers, ascertainable and a separate procedure for those particular people. So it did require ‑ ‑ ‑

NETTLE J: Can I ask you this question, because it concerns me?

MR GORMLY: Yes.

NETTLE J: If this decision is allowed to stand does it mean that it stands as authority for the proposition that if the Minister denotes as having been seen and, in effect, approved, a system promulgated by the Department to determine the cases which it will and will not refer to the Minister for him to consider whether he will exercise his personal power under 46A(2) constitutes a personal decision by the Minister to consider each member of the cohort under 46A(2)?

MR GORMLY: I think not because of the different matters that the Full Court took into account.

NETTLE J: They being? The extra matters that the Full Court took into account in this case which sets it apart from that proposition are what?

MR GORMLY: Well, as I said, it is ultimately the Minister’s actions ‑ ‑ ‑

NETTLE J: Being?

MR GORMLY: ‑ ‑ ‑ looking at paragraph 49 - looking at the conclusion of the Full Court on this question which was the Minister’s responses to the submission. So not just the circling of the notation but the fact that it was clear the Minister had read the submission carefully and was free to make his own further suggestions, which he did at application book 5 - some handwriting in respect of the paragraph 9 medical testing.

So the submission is not to be construed as a legislative instrument. It is not a form prescribed by legislation. If the Department wants to make clear when there is a personal procedural decision and when there is not, it can do so. It did not do so in this case because arrangements had to be made for this particular group of non‑lodgers who were bound to have ‑ ‑ ‑

NETTLE J: Can I put it to you this way? If the Department had not, as it were, promulgated these guidelines, but the Minister had sat down with plenty of time on his hands and written out a set of guidelines and handed them to the Secretary and said, “I do not want you to refer any case to me for consideration unless you are satisfied that the applicant meets these criteria”, would that have been a personal decision by the Minister in respect of each member of the cohort to entertain consideration of the application of 46A(2)?

MR GORMLY: Well, I accept - promulgation of guidelines is not a personal procedural decision.

NETTLE J: Right. Here you say it is different?

MR GORMLY: Yes.

NETTLE J: I am sorry to run across you - it is because of the connection. But here you say it is different, and I am just trying to focus in on why it is different in this case. What is the something more that separates it from that which I have put to you?

MR GORMLY: A particular procedure in respect of a particular class of persons – that is at its highest - who require special intervention, having regard to anticipated vulnerabilities.

GORDON J: The detail of that, Mr Gormly, is what? That is set out on application book 3 and 4 and following, is it?

MR GORMLY: Yes, that is right. Those next steps are set out from paragraphs 9 onwards, and in particular paragraph 10. But they identify that class of people as non‑lodgers - next steps, it is an ascertainable class. Unlike guidelines, which are general and are expressed to take into account any person who seeks ministerial intervention these are not general. It is particular to a certain group, an ascertainable group.

NETTLE J: It sounds like McPhail v Doulton and class certainty. How many people were in the cohort?

MR GORMLY: It was thought at the time around 800. At the time of the Federal Circuit Court decision that was 71 and now Mr Lloyd is saying that it is around 40.

NETTLE J: But there were 800, it was thought, at the time at which the Minister noted the recommendation.

MR GORMLY: Well, that was not known for sure.

NETTLE J: Right.

MR GORMLY: What the Minister was doing was to encourage people to lodge applications.

NETTLE J: Yes.

MR GORMLY: By saying that if you do not lodge an application that is the end of it, you will not be able to stay in the country – “Lodge or leave” was the title of the Minister’s press release. So it was not known at this stage, and I think that 800 was an overestimation and it has proved to be – it was a successful operation for the Department to get that number of people to lodge visa applications. They did it by threatening that that would be the end of them, that they would have to leave the country if they did not. So this leftover group was bound to have problems.

NETTLE J: Yes, thank you.

MR GORMLY: Our friends said that there was a general expectation that all non‑lodgers would be given bridging visas. Paragraph 9 specifies actually that it is final departure bridging visas. But the grant of these visas, we know, was subject to the process at paragraph 10. So for any applicant there was the possibility that he would not need a final departure bridging visa, that there would be recognisable claims to protection which would mean that the Minister could consider to exercise his powers. He was not, of course, required to. Even if these protection claims were found to exist, it was still the Minister’s decision whether to finally exercise the power.

So the fact that the respondent in this case was not just liable to be detained at the time of the personal procedural decision, but was actually detained after the decision, and after the submission, of course – it gives the lie to the suggestion of a general expectation that people would not be detained.

NETTLE J: Is this applicant still in detention?

MR GORMLY: No, he was released from detention not long before the Full Court hearing, but, as I say, he was held in detention for the year it took for the Federal Circuit Court to make a decision.

NETTLE J: Yes, thank you. Thank you very much, Mr Gormly.

MR GORMLY: Thank you.

NETTLE J: Mr Lloyd anything in reply? I am sorry we cannot hear you, can you switch on please?

MR LLOYD: Sorry, I was going to say, in relation to the number of people if it is to be judged as the court held at the time of the decision, at the time of the decision there were 1,500 potential non‑lodgers, there were 800 expected. The number of 40 I indicated is not how many there were who were non‑lodgers, it is how many non‑lodgers are still left in Australia. So that is quite a different thing.

The notion that the – I may have misunderstood my friend, but I think he said that whether or not it is a personal decision of the Minister is to be decided on a person‑by‑person basis, but there is no basis that distinguishes his client from any of the other 1,500. At that point in time they were all just people who had not lodged at that time; there was no other point of distinction.

He also says that they were – he was liable to be in detention, but he was not actually in detention and he was eligible and there was a plan to give him a bridging visa. If he had gone to ask for a bridging visa as
expected and as invited, he would have got..... The fact that he was later in detention is irrelevant because that all happened after the time at which the inferences need to be drawn.

So we say that that is all wrong – it cannot be a situation where the submission is a personal decision for some people affected but not for others, and we would say even if it could be a different result in relation to the possibility of a prolongation of detention, in fact there is – looking at it at the time of the Minister’s decision, there are no indicia, and contrary to what my friend said, the court does not give weight - significance to anything that happened after that date and if they did it would itself be inconsistent with their own ruling that it should be assessed as at the time of the decision and that hindsight would be a mistake.

So we say that this is an important area. Personal procedural decisions are the stepping stone to get natural justice in this context, so everybody wants them and they go to courts looking for - on the thinnest basis of an.....of what the Minister is deciding to take a preliminary step under section 46A. We say the Court should look at it. A second issue is a matter of general public importance which should be addressed. May it please the Court.

NETTLE J: Thank you.

In this matter, the Court is not persuaded that the applicant has identified sufficiently a question of principle of general public importance to warrant the grant of special leave to appeal. The application is therefore dismissed.

Do you seek costs, Mr Gormly?

MR GORMLY: Yes, your Honour. The Minister has indicated that it would pay costs in any event.

NETTLE J: The application is dismissed with costs. Thank you, gentlemen.

Adjourn now.

AT 12.42 PM THE MATTER WAS CONCLUDED