Aye v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT SPENDER J 1 I have had the benefit of reading in draft form the reasons of judgment of both Lander J and McKerracher J. I agree that the appeal should be dismissed, and I agree also with the reasons of Lander J for that conclusion, with one exception. I share the opinion of McKerracher J that the decision made by the Minister for Foreign Affairs on 14 July 2008 was not justiciable. 2 On 14 July 2008, the Minister for Foreign Affairs made the following determination: I, Stephen Smith, Minister for Foreign Affairs, determine in accordance with Migration Regulations 2.43, that Zin Mon Aye, date of birth 26 March 1985, is a person whose presence in Australia is, or would be, contrary to Australia's foreign policy interests. 3 On 24 October 2007, a financial sanctions list of 418 sanctioned individuals was introduced. The travel restrictions targeted senior members of the Burmese regime and their associates, including close family members. The list included the appellant's father and mother, but did not include the appellant. In submissions prior to the making of the determination on 14 July 2008, officers of the Department of Foreign Affairs and Trade advised "our intention to compiling the sanctions list in October 2007 was to include spouses and adult children of senior regime figures and military officers in the scope of the sanctions." 4 That submission later said, "… since October 2007, our sanctions policy has been expanded to include children of regime figures, and we have become aware of her presence here." 5 The submission had earlier noted that "as the child of the next in line for the position of Chief of Airforce, she fits within the definition of those targeted by our sanctions." 6 The submission said: "Now that we are aware of the presence of Ms Aye in Australia, we have recommended that you (Mr Smith) exercise your discretion of the Migration Regulations to determine that she is a person whose presence here is contrary to Australia's foreign policy interests." 7 Lander J, at [108], expresses the view that: The decision which the Minister for Foreign Affairs made on 14 July 2008 did not involve any policy considerations. It was a decision which implemented a previous decision which had been made prior to 24 October 2007, which was based upon policy considerations. The decision which was made on 14 July 2008 was whether the previous decision should be extended to include the appellant. In my opinion, the decision of 14 July 2008 is justiciable because it directly affects the appellant by depriving her of a right to continue to reside in Australia in accordance with the terms of her existing visa. The decision does not become non-justiciable because the decision is made as a consequence of a previous decision which was made on policy grounds. … 8 I respectfully disagree. 9 The decision, on its proper characterisation, gave effect to an assessment by the Minister of where Australia's foreign policy interests lay. The decision was simply that the appellant was within a class of persons whose continued presence in Australia was inimical to Australia's foreign policy interests. That is a political matter, and is not justiciable. 10 It is not competent for a Court to enquire into the correctness of the policy targeting senior regime figures and military officers in Burma, their spouses and adult children, or the merits or wisdom of that policy. 11 The essence of the appellant's complaint is that the policy should not apply to adult children of senior Burmese regime figures, who are not supporters of the regime. The particulars of the appellant's complaints to the primary judge included: (i) The foreign minister took into account an irrelevant consideration, namely, that the applicant is the daughter of someone subject to sanctions. (ii) The foreign minister failed to take into account a relevant consideration, namely, the fact that he did not have anything adverse whatsoever against the applicant herself. (iii) The foreign minister asked the wrong question in that he asked whether the applicant was the child of a senior member of the Burmese regime when he should have asked whether the applicant, being a child of a senior member of the Burmese regime, associated herself with her father in support of the regime by any of her actions or in any other way supported the Burmese regime. 12 These contentions demonstrate that the appellant was seeking to challenge the correctness of the content of the policy adopted by the Executive, which involved sanctions against Burmese Military Officers and their immediate families. 13 If the Executive, in wartime, made a decision to intern the nationals of countries with which Australia was at war, that decision, in my opinion, could not be justiciable. A person interned as a result of the application of that policy would be able to challenge the decision to intern, but only on the ground that the person was not a national of a country with which Australia was at war. 14 Here, there was no suggestion that Zin Mon Aye was not the daughter of Brigadier General Zin Yaw, and as such, was within the sanctions policy of the Executive. 15 The decision of the Minister for Foreign Affairs of 14 July 2008 was the application of foreign policy and was not justiciable. 16 If, contrary to that view, the decision is justiciable as Lander J concludes, the content of the duty to accord procedural fairness was limited to making submissions as to whether she was the daughter of Brigadier General Zin Yaw, and thus caught by the policy which embraced the immediate family members of senior Burmese officials. 17 That was never in issue, and the decision of 14 July 2008 was not therefore vitiated by any denial of procedural justice. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

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