Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Relevant background 7 The applicant is accepted to be a Sri Lankan national and is of Tamil ethnicity. He arrived in Australia by boat on 1 August 2012. The applicant applied for a protection visa which was refused by a delegate of the Minister on 24 January 2014. 8 Both merits and judicial review of the delegate's decision then followed. On 7 January 2016, the Administrative Appeals Tribunal affirmed the decision of the delegate. The applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. His judicial review application was dismissed on 27 June 2018. He then appealed to this Court. His appeal was dismissed on 30 April 2019. The applicant then made an application for special leave to appeal from the Full Court's decision. That application was dismissed by the High Court on 11 September 2019. 9 After that dismissal, the applicant wrote to the Minister requesting that he intervene and exercise his powers under s 417 of the Migration Act on 11 October 2019. Section 417 provides: 417 Minister may substitute more favourable decision (1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. (2) In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act. (3) The power under subsection (1) may only be exercised by the Minister personally. (4) If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that: (a) sets out the decision of the Tribunal; and (b) sets out the decision substituted by the Minister; and (c) sets out the reasons for the Minister's decision, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest. (5) A statement made under subsection (4) is not to include: (a) the name of the applicant; or (b) any information that may identify the applicant; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned - the name of that other person or any information that may identify that other person. (6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the decision is made between 1 January and 30 June (inclusive) in a year - 1 July in that year; or (b) if a decision is made between 1 July and 31 December (inclusive) in a year - 1 January in the following year. (7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances. 10 The applicant also made a request for the Minister to exercise his power under s 48B of the Migration Act on 15 October 2019. That request, and any outcome of it, is not the subject of this proceeding. 11 Guidelines have been promulgated concerning the way in which requests such as that made by the applicant will be dealt with by the Department of Home Affairs. Those Guidelines were before the Court on this application. They have no statutory force. 12 The Guidelines also apply to a materially similar power in s 351 of the Act and were considered by the High Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636. At [90]-[91], the plurality described the purpose and effect of these Guidelines: Three sets of guidelines were material. The first was applicable to the exercise of powers, inter alia, under s 351 and s 417, the second to s 48B, and the third to s 195A. The term "guidelines" is apt to mislead; their content is in the form of directions by the Minister. The first and third guidelines state as a purpose the desire of the Minister to inform departmental officers "when to refer a case to me so that I can decide whether to consider exercising such powers in the public interest"; and "to explain the circumstances in which I may wish to consider exercising my public interest powers [under s 351, s 417, s 195A as the case may be]". The s 48B guidelines are said to be for use "when considering whether to forward to the Minister cases that the Minister may wish to consider when using the ministerial non-compellable and non-delegable power [under s 48B]". The terms of the guidelines provide criteria to distinguish between requests which will not be referred to the Minister and those which may be referred to the Minister for consideration whether to exercise the relevant power. By these directions the Minister has determined in advance the circumstances in which he or she wishes to be put in a position to consider exercise of the discretionary powers by the advice of department officers. It was within the competence of the Minister to do so. The effect, as the Commonwealth Solicitor-General put it in oral argument, is that the adoption of the guidelines by the Minister represents decisions by the Minister that if a case is assessed as not meeting the guidelines, the Minister does not wish to consider the exercise of the dispensing power, and if a case is assessed favourably then the Minister does wish to consider that exercise. (Footnotes omitted.) 13 In Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 369 ALR 620 at [19], Robertson J described the effect of a subsequent decision by the High Court in relation to, amongst others, s 417 itself: In Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180, the High Court was considering ss 48B, 195A and 417 of the Migration Act. At [47], the High Court said that in Plaintiff S10/2011 at [46], [52] and [91], members of the Court, with the possible exception only of Heydon J, interpreted the guidelines as directed to when the Department was to refer cases to the Minister in order to allow the Minister to decide whether or not to consider exercising a non-compellable power: where the Department had not referred a case to the Minister, no statutory power had been engaged; where the Department had referred a case to the Minister and the Minister had indicated that he would "not intervene", the Minister had made a personal decision that he would not consider exercising any of the non-compellable powers. 14 I respectfully agree with that passage. 15 Section 1 of the guidelines states that the purpose of the guidelines is to: • explain the circumstances in which [the Minister] may wish to consider intervening in a case • explain how a person may request that [the Minister] consider intervening in their case • explain when [the] Department should refer a case to [the Minister] confirm that if a case does not meet [the] guidelines, [the Minister does] not wish to consider intervening in that case. 16 Under the heading "Cases which should be brought to my attention", ss 4 and 5 provide: 4. Unique or exceptional circumstances Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers: • strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident • compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person • exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia • circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case • the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person's control • a person's particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country • the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia's non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act. 5. Other relevant information For all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following: • circumstances that may bring Australia's obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations • circumstances that may bring Australia's obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia's migration programme • whether the continued presence of the person in Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia's international relations • whether there are character concerns in relation to the person, particularly concerns related to criminal conduct • information about a person's history of compliance with Australian laws, including migration laws, such as: • any offence or fraud against the migration or citizenship legislation • any failure to comply with their visa conditions • any periods as an unlawful non-citizen in the community • their history of cooperation and engagement with the department to resolve their immigration status, particularly in relation to identity and travel documents • details of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case • the level and nature of the person's integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen. 17 Section 10.1 describes how a "first request" will be assessed. The applicant's request was, apparently, a "first request". Section 10.1 provides: A request is a "first request" if I or another Minister (current or previous) have not previously received a request to intervene in the person's case (whether for the present or any previous visa decision) under any of the powers covered in these guidelines. If the Department assesses that the case has unique or exceptional circumstances such as those described in section 4 of these guidelines, it will be brought to my attention in a submission. I may consider intervening if I think it is in the public interest to do so. If the Department assesses that the case does not have unique or exceptional circumstances such as those described in section 4 of these guidelines and is inappropriate for me to consider, as described in section 7 of these guidelines, it will not be brought to my attention. If the Department assesses that the case does not have unique or exceptional circumstances such as those described in section 4 of these guidelines, and is not inappropriate for me to consider, it will be finalised by the Department without referral to me. If I do not wish to intervene or consider intervening in the case, whether or not it has been referred to me, the Department will reply on my behalf to the person or their authorised representative that I do not wish to intervene or consider intervening in that case. 18 In Jabbour, Robertson J held that while it was now established that these provisions are not conditioned by an obligation to afford procedural fairness, conduct or decisions pursuant to the guidelines may be susceptible to judicial review on other grounds. At [87] his Honour said: It was not in dispute that authority in this Court establishes that exercises of non-statutory executive power may be amenable to judicial review depending upon its nature and subject matter, as opposed to its source: Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274. 19 Dealing with available grounds of review, at [81]-[82] his Honour said: I would not read the factors relied on by Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10/2011 at [98]-[99], which led in that case to the conclusion that the dispensing provisions were not conditioned upon observance of the requirements of natural justice, as necessarily meaning that the conditioning of those provisions by the requirement of legal reasonableness was to be construed as displaced. The mere fact that both principles may be displaced as a matter of statutory construction does not necessarily mean that because one principle, procedural fairness, is so displaced, the other principle, legal reasonableness, is also displaced. In my opinion, whether a person taking administrative action is required to give a reasonable opportunity to be heard to an affected person involves factors distinct from whether that person's actions must be legally reasonable. That one error may be characterised as "at least" a failure to accord natural justice where breach of the rules of natural justice was excluded as a ground upon which an application may be made, as in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24], does not mean that there has not been a constructive failure to exercise jurisdiction. As in Dranichnikov at [25], the question remained whether what occurred, either characterised as a failure to accord natural justice or as that, and more as a constructive failure to exercise jurisdiction, entitled Mr Dranichnikov to relief under s 75(v) of the Constitution. See also Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [74]-[76] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. 20 Further at [89], and [91]-[92], Robertson J said: It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else: see Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208 per French and Drummond JJ. This may be an example of "an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker's own criteria": Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 at 453; appeal on other grounds dismissed in Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162. … In my opinion, at the level of principle the non-statutory administrative action on the part of the second respondent in this case is amenable to judicial review for legal unreasonableness. Relevantly, the nature of that administrative action is informed by the guidelines. Although those guidelines take the form of instructions to officers of the Minister's Department, that is not their only character. The instructions are promulgated and, amongst other things, set out how to make a request and how requests for Ministerial intervention will be progressed. The interests and potential rights of the applicants were affected by the administrative action. The guidelines provided a purpose and set out criteria or considerations. The nature of the administrative action, the relevant exercise of power, does not take it out of the mainstream of government actions either by reference to subject matter or as involving a matter of political judgment. These characteristics of the present non-statutory administrative action do not distinguish it from a statutory discretion. Although involving the exercise of a non-statutory power, the circumstances are "more closely related to justice to the individual than with political, social and economic concerns": South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 at 387 per Mason CJ. That the basis of review may be narrower than for government action under a statute does not have the consequence that judicial review is unavailable. That the action in the present case is not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth), because there is no decision under an enactment, does not mean that judicial review under s 39B of the Judiciary Act is not available: s 10 of the Administrative Decisions (Judicial Review) Act provides that the rights conferred by ss 5, 6 and 7 are in addition to, and not in derogation of, any other rights that the person has to seek a review by, relevantly, a court. Further, I have set out at [81] above why I consider the displacement of procedural fairness, as a matter of contrary statutory intention, does not mean that review for legal unreasonableness is similarly displaced. 21 At [101], his Honour said: If it be necessary to find a conceptual underpinning for the role of this Court in judicial review of governmental action under non-statutory powers, the Court having jurisdiction under s 39B of the Judiciary Act, reflecting relevantly the jurisdiction of the High Court under s 75(v) of the Constitution, I would find it in the common law. The matter is discussed by Professor Fiona Wheeler in "Judicial Review of Prerogative Power in Australia: Issues and Prospects" (1992) 14 Sydney Law Review 432 at 461ff and by Ms Amanda Sapienza in "Judicial Review of Non-Statutory Executive Action: Australia and the United Kingdom" (2018) 43 University of Western Australia Law Review 67. It would seem to me to be incongruous to have in the common law a principle of statutory interpretation implying reasonableness as a condition of the exercise of a discretionary power conferred by statute, but not to have in the common law any such principle existing outside statutory interpretation. The creation of "islands of power immune from supervision and restraint" or "distorted positions", referred to in Kirk by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [99], would thereby be avoided. The second respondent is of course an officer of the Commonwealth within s 75(v) and s 39B. 22 The Minister did not submit Jabbour was plainly wrong and should not be followed as a matter of comity by another single judge. Comity serves institutional purposes, "uphold[ing] the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges": see Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [74]-[76] (affd [2004] FCAFC 114; 138 FCR 475), cited with approval in Batterham v QSR Limited [2006] HCA 23; 225 CLR 237 at [73] and Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162; 255 FCR 96 at [93]. Comity aside, I am comfortably persuaded that, with great respect, Robertson J's analysis is correct, and I would adopt the same reasoning as his Honour. No more need be said, as I cannot improve on his Honour's explanations, which I have extracted above. While his Honour's reasoning focused on legal unreasonableness, being the ground advanced before him (and which his Honour concluded was not made out), it is clear from the extracts above that his Honour considered legal unreasonableness was not the only ground of review which is available. I respectfully agree. 23 I turn now to the circumstances of the applicant's request for intervention, and the decision made on that request. 24 The applicant's request relied substantially on the grounds he had advanced in his claims for protection: namely, what had happened to him in Sri Lanka and why he feared returning there. He also pointed out the ties he had developed in Australia, through friendships and the contribution he has made by paying taxes. There was no material of the kind advanced by the applicant in Jabbour. 25 A case officer in the Department made an initial assessment. The assessment ran over three pages and contained information which was particular to the applicant. As far as the Court can see, the assessment accurately set out not only what the applicant had raised in his request but also what the Administrative Appeals Tribunal had found. The assessment also described the applicant's personal and family circumstances. The assessment concluded: The claims and circumstances presented in this request are not unique or exceptional when assessed against the Minister's Guidelines. The case is assessed as not meeting the Guidelines for referral to the Minister 26 This was the assessment with which the Acting Assistant Director agreed, as I have set out above. 27 The applicant was informed of this outcome on the same day the decision was made.

Respondent's submissions 28 The Minister submitted that the test for summary judgment by way of dismissal of the originating application is met for two main reasons: (a) the Court cannot grant the relief or remedy that the applicant seeks; and (b) even if the Court could grant the relief or remedy sought by the applicant, the applicant's ground of review cannot be made out.

Resolution 29 The Minister's first argument may be put to one side. In accordance with Plaintiff S10/2011 and Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180, it is technically correct. However, the applicant is an unrepresented asylum seeker who does not have functional English and his originating application should be approached with this in mind. It is clear enough what the applicant is asking the Court to do. In substance, he asks the Court to set aside the decision of the Acting Assistant Director. That is apparent from the particulars of review. The Minister's legal representative properly did not cavil with the Court taking this approach and also accepted the Minister was the appropriate respondent in the circumstances. 30 The Minister's summary judgment application should however succeed on the second, principal argument. The applicant's originating application has no reasonable prospects of success. Despite the availability of grounds of review, there is nothing in the material which indicates any error in the approach taken by the Acting Assistant Director. There is no indication of legal unreasonableness in the way the applicant's request was assessed or in the agreement with that assessment by the Acting Assistant Director. If the assessment had been obviously irrational, or had omitted critical facts or representations, it may have been legally unreasonable for the Acting Assistant Director to agree with it. That is not this case. If the case officer had plainly misunderstood the Guidelines and misapplied them to the applicant's circumstances that may also have resulted in a reviewable error if the Acting Assistant Director had adopted and proceeded on such a flawed understanding. However that is also not this case. 31 Even with the Court taking the approach of assessing the content of the applicant's request itself against the applicable legal principles, there is nothing in the substance and content of his request which indicates any arguable legal error in the assessment or in the Acting Assistant Director's agreement with it. 32 One of the matters raised by the applicant in his particulars, and which he also raised during the hearing, was that there were no reasons given for the decision not to refer his request to the Minister. There is no statutory duty imposed on the Minister, or the Acting Assistant Director, to provide reasons to a person in the applicant's position. There is no established authority to the effect that in the exercise of non-statutory administrative or executive power there is any such duty. In Jabbour at [112], Robertson J said: The second respondent's document is not a statement of reasons in the familiar form, whether under statute or otherwise. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] French CJ, Bell, Keane and Gordon JJ said: It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, "jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power"; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate's letter is "not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". (Footnotes omitted.) 33 I respectfully agree. Notwithstanding that legal analysis, it is understandable why a person in the applicant's position would wish to understand why his request was not referred. As a matter of good administrative practice, it may be desirable for consideration to be given to informing persons in the applicant's position of why their request under s 417 (or s 351) was not referred. As a consequence of commencing these proceedings, the applicant now has the benefit of the case officer's assessment, and of understanding what is in the Guidelines, as explained to him during the hearing. It is apparent from what he said at the hearing he understood neither of those matters when he commenced this proceeding, nor at the time he was informed of the Acting Assistant Director's decision. Whether persons in the applicant's position could be given some further detail in circumstances such as these might be a matter that should be considered by the Minister and his Department. The public cost and resources involved in this proceeding may well have been saved had that occurred. 34 It is appropriate, and consistent with the objectives in s 37M of the Federal Court of Australia Act, for summary judgment to be given in favour of the respondent under s 31A, and for the applicant's originating application to be dismissed. At the hearing the Court spent some time explaining to the applicant, through the interpreter, the nature of s 417, the function of the Guidelines, the process adopted by the case officer and the Acting Assistant Director, and the lawfulness of a process incorporating the Guidelines, as the High Court of Australia has found in Plaintiff S10 and SZSSJ. It can be accepted that the applicant feels frustrated by a process which he obviously thought would involve the Minister personally considering his own circumstances. However, there is no basis in the material for the Court to find his proceeding has any reasonable prospects of success. 35 There is also no basis to decline to make an order as to costs. The Court explained the usual rules about costs to the applicant at the hearing, and had explained them to him at the first case management hearing, when the Court invited the applicant to consider the difficulties associated with a judicial review application of this kind. The applicant elected to press on. However, in the circumstances, and particularly given what the applicant said in his application and at the hearing about not understanding why his request had not been considered by the Minister, I consider it is appropriate that the costs order be limited to the costs of the interlocutory application under s 31A. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.