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[2020] FCA 836
respondent. The originating application for judicial review was dismissed. Costs were ordered against the applicants in favour of the respondent, to be fixed as a lump sum (see Orders and [71]). Leave to rely...
The Bakers sought permission under an emergency COVID-19 travel ban to attend their son's wedding in the United States. Two delegates refused their exemption requests. The Federal Court (Mortimer J) dismissed the Bakers' judicial review. The Court held the delegates did not ask the wrong question, could permissibly consider public health risk in assessing whether a "compelling reason" showed "exceptional circumstances", were not unlawfully fettering discretion by relying on departmental guidance listing example grounds, and did not deny procedural fairness given the emergency context and that the applicants were represented and given opportunity to be heard.
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This was an urgent Federal Court judicial review (VID 380 of 2020) of two decisions by delegates of the Commissioner of the Australian Border Force refusing s 7 exemptions under the COVID-19 Determination. The applicants, Esther and Charles Baker, ultra-orthodox Jewish parents with family in the United States, sought permission to travel to New Jersey to attend their youngest son's wedding on 23 June 2020 ([1], [2], [15]-[17]). The Determination (made under s 477 of the Biosecurity Act 2015) prohibited Australian citizens and permanent residents from leaving Australia except where an exemption applies (s 5), by operation of s 6 or by written exemption granted under s 7 for “exceptional circumstances” demonstrated by a “compelling reason for needing to leave” (s 7(1)-(2)) ([10]-[13]).
2 cited instruments linked from this judgment.
The Bakers filed a first s 7 application on 2 June 2020; it was refused on 7 June 2020 with brief reasons saying, in substance, that international travel was "highly restricted to critical reasons only" and "attendance at a wedding does not meet this criteria", and referring to Australian restrictions on weddings and the potential risk to the community ([3]-[4], [21]). They filed a second application on 8 June which was refused (evidence suggests the decision was made on 9 June), and they promptly filed an originating application for judicial review on 9 June 2020 ([5]-[7], [22]). The Court heard the matter urgently by telephone on 12 June and delivered reasons on 15 June 2020, dismissing the application and ordering costs against the applicants ([1], [9], Orders).
Their grounds were that the delegates asked the wrong question (using terms like "critical" or "compassionate" rather than "compelling" or "exceptional"), that the delegates inflexibly applied an alleged policy effectively excluding weddings (fettering discretion), and that they were denied procedural fairness because the delegates took into account matters without inviting comment ([24], Grounds 1–3).
Mortimer J rejected each ground, found no jurisdictional error, and dismissed the application ([27]-[71]).
Mortimer J’s reasoning can be structured around three core lines:
Textual and contextual reading of s 7(2): Mortimer J read the Determination in its statutory and purpose context. Section 7(2) identifies that exceptional circumstances are demonstrated by supplying a "compelling reason for needing to leave". The judge concluded that the use of words such as "critical" or "compassionate" by delegates in their notifications did not amount to asking the wrong question. Those adjectives were used in an evaluative sense to assess the strength of the applicants' claim; in context, they conveyed substantially the same meaning as "compelling" and were not evidence of a misconstruction of the statutory test ([29]-[30]).
Permissibility of considering public health risk: The Determination itself exists to reduce the risk of COVID-19 entering or spreading in Australia. Mortimer J held it is inherent in s 7 that a decision-maker may consider the risk a traveller poses upon return, where they go, for how long, and what they do, when assessing whether an asserted compelling reason demonstrates exceptional circumstances. Thus an assessment that weighs the asserted reason against risk to the Australian community is a permissible evaluative exercise, not an unlawful departure from s 7(2) ([31]-[33]).
Guidance vs fettering and procedural fairness in an emergency: The applicants attacked ABF/Department documents which list six exemplar grounds (including urgent/unavoidable personal business and compassionate or humanitarian grounds) as indicating a rigid policy. Mortimer J treated such materials as administrative guidance: useful examples intended to assist applicants and case officers. The presence of illustrative categories and repeated “case by case” language in ABF materials did not show a fettering of the discretion; the evidence showed the delegates did engage with the applicants' material and appreciated the nature of the application (wedding of the applicants' son) ([36]-[46], [47]-[55]).
On procedural fairness, the Court assumed, for the applicants' benefit, that procedural fairness applied, but emphasised that its content must be adapted to the emergency context. The s 7 power is exercised in urgent circumstances; delegates need not conduct an ordinary merits-style consultation. The applicants were represented, made fulsome submissions, had access to the process, and the second refusal cured any possible procedural deficiency in the first decision because the later decision explicitly considered the contested matters ([58]-[69]).
These strands led Mortimer J to conclude there was no jurisdictional error in either refusal ([70]-[71]).
Before this decision: Core administrative law principles were settled, courts interpret statutory tests in context; different adjectives may be acceptable if they capture the statutory concept; guidance documents are not per se fetters of discretion; the content of procedural fairness is context-dependent (see, for example, Wu Shan Liang; SZBEL; Peko-Wallsend; Plaintiff M64/2015 and Plaintiff S297/2013 as authorities relied on by Mortimer J). Emergency statutory regimes (s 477 of the Biosecurity Act) require special sensitivity to purpose and urgency.
What this judgment clarifies: In the specific context of an emergency Determination banning outward travel, the Court will tolerate succinct, qualitatively evaluative reasons and administrative guidance; it will accept that decision-makers may appropriately weigh asserted compelling reasons against the foreseeable public-health risk of travel and return. The decision reinforces that the procedural fairness obligation is attenuated by emergency context and by the summary administrative process (the s 7 regime is not a full merits-review style process). It confirms that a second reconsideration that explicitly considers contested matters can cure shortcomings in an earlier refusal.
This is not a statement of new law displacing existing authorities, rather an application of established administrative law principles calibrated for the biosecurity emergency context.
Selected passages and translations from Mortimer J’s reasons:
Passage: "I do not accept the submission that either of the decision-makers 'asked the wrong question'... By s 7(2) if a person provides a 'compelling reason' ... the Determination ... deems there to be exceptional circumstances." ([29]) Plain-English: The judge says the delegates used different words but were still answering the right question; what matters is whether the reason is strong enough to be 'compelling'.
Passage: "It is inherent in the purpose and structure of the Determination ... The risk to the Australian community ... is the reason for the existence of the Determination." ([31]) Plain-English: The whole point of the ban is to reduce health risk; so decision-makers can and should consider whether the travel would increase risk on return.
Passage: "The mere fact that some examples are given is not indicative of fettering: it is good administrative practice..." ([46]) Plain-English: Examples on websites or memos help users and decision-makers; they do not automatically stop a case-by-case decision.
Passage: "The obligation to afford a reasonable opportunity to be heard... must conform to the circumstances of an emergency situation." ([64]) Plain-English: What fairness requires depends on context; in an emergency you should not expect the usual, lengthy consultative processes.
Passage: "Although the applicants' counsel capably developed his arguments... ultimately I am not persuaded any of them should succeed." ([70]) Plain-English: The judge acknowledges the quality of argument but says it fails on the law and facts.
This decision will be most directly relevant to administrative law challenges to decision-making under emergency regulations where:
In short, where the administrative decision involves a summary, emergency, case-by-case discretionary exemption regime, Baker provides a roadmap for courts to assess whether language and administrative practice amount to legal error.
At the time of this judgment (15 June 2020) Mortimer J relied upon established authorities (Wu Shan Liang; Plaintiff M64/2015; Plaintiff S297/2013; SZBEL; Peko-Wallsend; Goundar; Jabbour; MZYTS) to apply settled principles to the emergency Determination. Subsequent courts assessing similar COVID-19 exemption refusals will likely follow the same lines: treat departmental guidance as non-binding unless evidence shows rigid application; calibrate procedural fairness to the emergency context; and permit consideration of public health risk in assessing exceptions to a travel ban. Practitioners should expect courts to require that delegates engage with applicant material and that reasoning be sufficient to show engagement, but not to expect the kind of elaborate reasons given in non-emergency administrative regimes.
(As this deep dive is constrained to the judgment’s content, it does not catalogue subsequent citations of Baker. Practitioners should review later decisions for adoption or distinction in particular facts.)
Degree of specificity required in reasons under emergency regimes: Mortimer J accepted relatively summary reasons here, particularly because the applicants were represented. But where applicants are unrepresented or where a decision is internal without a follow-up reconsideration, the boundary of acceptable brevity remains to be tested.
When guidance becomes a policy: Baker treats ABF guidance as non-fettering when documents use 'case by case' language. Future cases may confront more formalised protocols or scoring systems; at what point will administrative guidance be so prescriptive as to constitute fettering?
Scope of risk assessment: Mortimer J accepted the delegate could assess risk of return travel. However, how granular must that risk assessment be? For instance, an applicant proposing to travel to a low-risk country may prompt a different balancing exercise than travel to a high-incidence jurisdiction; the appropriate level of evidence on epidemiological conditions and quarantine regimes remains an open practical question for decision-makers and courts.
Cure by reconsideration: The Court found the second decision cured any procedural unfairness in the first. That raises questions about the limits of such cures: how closely must the reconsideration correspond to issues raised, and does a second refusal always cure a denial of procedural fairness if no new material was added?
Interaction with external countries' entry requirements: Mortimer J noted written exemptions may be relevant to entry to another country as well as to return to Australia ([12]). The extent to which foreign entry rules should be considered in assessing a s 7 compelling reason was not explored in depth and could be a factual axis for later disputes.
Conclusion: Baker v Commissioner of the Australian Border Force applies well-established administrative-law principles to a COVID-19 emergency travel-ban context. It confirms that evaluative language differing from statutory phrasing is not automatically fatal, that public health risk is a permissible consideration when assessing exemptions, that guidance documents are generally non-fettering unless they evidence rigid policy, and that the content of procedural fairness is adapted to emergency decision-making. Practitioners dealing with s 7-type exemption requests should (a) present concise but compelling evidence addressing risk and necessity, (b) anticipate that ABF will consider public-health risk, and (c) take steps to ensure any urgent application preserves clear record material for judicial review.
The Court ordered that the time for serving this application be abridged to [Registry will insert date, if applicable] Date: Signed by an officer acting with the authority of the District Registrar
Details of claim The Applicants apply to the Court to review the decisions dated 7 June 2020 and 9 June 2020 of the Respondent purportedly pursuant to section 7 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (the Determination) which refused their applications to be exempted from section 5 of that Determination in relation to their proposed travel to the United States of America. The Applicants are aggrieved by the decisions because it is their applications that werewas refused. On the grounds set out below, the Applicants apply for the following relief under section 16 of the Administrative Decisions (Judicial Review) Act 1977, further or alternatively, section 39B of the Judiciary Act 1903:
Schedule No. VID 380 of 2020 Federal Court of Australia District Registry: Victoria Division: General Applicants Second Applicant: Charles Baker Date: 9 June 2020
Introduction 1 This is an urgent application for judicial review of two decisions each made by a delegate of the Commissioner of the Australian Border Force. In accordance with the Court's COVID-19 policies and with the respondent's agreement, it was heard by telephone as a final hearing, on 12 June 2020. 2 The applicants wish to travel to New Jersey to attend the wedding of their youngest son on 23 June 2020. Section 5 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth) provides that an Australian citizen or permanent resident must not leave Australian territory on an outgoing aircraft unless a general exemption applies under s 6 or an APS employee in the Australian Border Force grants a specific exemption under s 7. 3 On 2 June 2020, the applicants applied for an exemption under s 7. 4 On 7 June 2020, the applicants were notified that their application had been refused. 5 On 8 June 2020, the applicants made a second application for an exemption under s 7. 6 On 9 June 2020, the applicants filed an originating application seeking judicial review of the decision of 7 June 2020. 7 On 11 June 2020, the applicants filed an amended originating application with leave of the Court. On the same day, they were notified that their second exemption application had been refused, although it is apparent from the evidence before the Court that the decision to refuse the second application was made on 9 June 2020. 8 At the hearing, the applicants confirmed the challenge in this proceeding is to both decisions. Given the urgency of the proceeding, a further amended originating application was emailed to the Court and to the respondent, but not filed. The respondent did not object to this course of events. 9 With one exception, discussed at [34]-[35] below, leave was granted to the applicants to rely on the further amended originating application which was emailed to the Court and to the respondents. The relief sought was the same in respect of both decisions: namely, that the decisions be set aside and the matter of the exemption applications be remitted to the respondent for further consideration according to law.
Legislative framework 10 Sections 5-7 of the Determination provide: 5 Persons not to travel outside Australian territory after 12 pm, 25 March 2020 (1) An Australian citizen or permanent resident (the person) must not leave Australian territory as a passenger on an outgoing aircraft or vessel on or after the time this instrument commences unless: (a) an exemption set out in section 6 applies to the person; or (b) an exemption is granted to the operator of the aircraft or vessel or the person by an APS employee in the Australian Border Force under section 7. (2) An operator of an outgoing aircraft or vessel must not leave Australian territory on or after the time this instrument commences with any passenger who is an Australian citizen or permanent resident (the person) on board the aircraft or vessel unless: (a) an exemption set out in section 6 applies to the person; or (b) an exemption is granted to the operator or person by an APS employee in the Australian Border Force under section 7. 6 Exemptions - general An exemption from the requirements of section 5 applies to the following persons: (a) a person ordinarily resident in a country other than Australia; (b) a person who is member of the crew of an aircraft or vessel (other than the outgoing aircraft or vessel) or is a worker associated with the safety or maintenance of an aircraft or vessel (other than the outgoing aircraft or vessel); (c) a person engaged in the day-to-day conduct of inbound and outbound freight; (d) a person whose travel is associated with essential work at an offshore facility; (e) a person who is travelling on official government business (including a member of the Australian Defence Force). 7 Exemptions - granted by an APS employee in the Australian Border Force (1) In exceptional circumstances, an APS employee in the Australian Border Force may grant an exemption to: (a) an Australian citizen; or (b) a permanent resident; or (c) an operator of an outgoing aircraft or vessel. (2) For the purposes of subsection (1), exceptional circumstances are demonstrated by the Australian citizen, permanent resident or operator providing a compelling reason for needing to leave Australian territory. (3) An exemption made under subsection (1) must be in writing. (4) An exemption made under subsection (1) is not a legislative instrument. 11 It can be seen that the structure of the Determination is to impose a prohibition on Australian citizens and permanent residents from travelling outside Australia. There are two categories of exemptions to the prohibition created. By s 6 there are exemptions which take effect by operation of the terms of the Determination itself. Australian citizens and permanent residents who fall within the terms of s 6 need no written permission, and need not apply for any permission. Such individuals may present themselves at the border and must be permitted to leave Australia. Of course, if there is some question whether an individual falls within the terms of s 6, a decision may have to be made by an officer. If a decision is made that a person does not fall within s 6, then at a practical level the individual will be considered to be subject to the prohibition in s 5, and may need to apply for written permission under s 7 in order to leave Australia. 12 By s 7 there is an exemption which depends on a favourable exercise of power by an APS employee in the Australian Border Force. Section 7 envisages the grant of permission on a case-by-case basis, and the issuing of written permission as proof of the grant of an exemption. The proof of permission to leave may be relevant to entry to another country, as well as to return to Australia. As the respondent accepted, the process under s 7 may also occur at the border. Although, as I explain below, the Australian Border Force has instituted an administrative process requiring completion of a form within certain time periods, that is not a process required by the Determination. The breadth of circumstances in which the exemption power in s 7 might be exercised (outside the administrative process established by the Australian Border Force) is relevant to the construction of the Determination and the assessment of the validity of exercises of power pursuant to it. 13 Section 477 of the Biosecurity Act 2015 (Cth) is the source of power to make the Determination, and provides: 477 Health Minister may determine emergency requirements during human biosecurity emergency period (1) During a human biosecurity emergency period, the Health Minister may determine any requirement that he or she is satisfied is necessary: (a) to prevent or control: (i) the entry of the declaration listed human disease into Australian territory or a part of Australian territory; or (ii) the emergence, establishment or spread of the declaration listed human disease in Australian territory or a part of Australian territory; or (b) to prevent or control the spread of the declaration listed human disease to another country; or (c) if a recommendation has been made to the Health Minister by the World Health Organization under Part III of the International Health Regulations in relation to the declaration listed human disease - to give effect to the recommendation. Note 1: A person who fails to comply with a requirement determined under this subsection may commit an offence (see section 479). Note 2: For variation and revocation, see subsections 33(3) and (3AA) of the Acts Interpretation Act 1901. (2) A determination made under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination. (3) Without limiting subsection (1), the requirements that the Health Minister may determine include the following: (a) requirements that apply to persons, goods or conveyances when entering or leaving specified places; (b) requirements that restrict or prevent the movement of persons, goods or conveyances in or between specified places; (c) requirements for specified places to be evacuated; (d) if a recommendation has been made as referred to in paragraph (1)(c) - requirements for the purposes of giving effect to the recommendation. (4) Before determining a requirement under subsection (1), the Health Minister must be satisfied of all of the following: (a) that the requirement is likely to be effective in, or to contribute to, achieving the purpose for which it is to be determined; (b) that the requirement is appropriate and adapted to achieve the purpose for which it is to be determined; (c) that the requirement is no more restrictive or intrusive than is required in the circumstances; (d) that the manner in which the requirement is to be applied is no more restrictive or intrusive than is required in the circumstances; (e) that the period during which the requirement is to apply is only as long as is necessary. (5) A requirement determined under subsection (1) applies despite any provision of any other Australian law. (6) A determination made under subsection (1) must not require an individual to be subject to a biosecurity measure of a kind set out in Subdivision B of Division 3 of Part 3 of Chapter 2. Note: Subdivision B of Division 3 of Part 3 of Chapter 2 sets out the biosecurity measures that may be included in a human biosecurity control order. When determination ceases to have effect (7) A determination made under subsection (1) ceases to have effect at the end of the human biosecurity emergency period, unless it is revoked earlier. 14 The COVID-19 Determination was made on 25 March 2020, consequent upon a declaration under s 475 of the Biosecurity Act by the Governor-General on 18 March 2020 that a human biosecurity emergency exists in relation to COVID-19.
Factual background 15 The applicants are ultra-orthodox Jews. They have nine children, three of whom live in the United States. 16 In their first application for an exemption from s 5 of the Determination, the applicants referred to the following matters: (a) The applicants' cultural and religious traditions require that they be at their son's wedding. (b) The wedding ceremony is significant, because the couple are not allowed to live together before they are married and it is one of the cornerstones of Jewish life. (c) Any deferral of the wedding would put a significant strain on the relationship of the applicants' son and his fiancée. 17 In their second application, the applicants referred to the same matters. They sought to correct an alleged misapprehension on the part of the first decision-maker: namely, that there would be 350 people at the wedding, when in fact it is proposed there will only be 25. They also submitted that the first decision-maker applied the wrong test in determining their request. The same submission is now put by the applicants in their application for judicial review. 18 The parties filed written submissions in this proceeding on 11 June 2020. 19 The applicants read and relied on three affidavits of Ms Carina Ford, the lawyer with carriage of this matter on behalf of the applicants. The affidavits addressed the applicants' applications and the applicants' lawyers' attempts to obtain more information about the respondent's process for determining applications for exemptions. 20 The respondent read and relied on an affidavit of Ms Peta Heffernan, the lawyer with carriage of this matter on behalf of the respondent. The affidavit contained information about the COVID-19 pandemic, the Determination, and the decisions made in relation to the applicants' applications.
The refusal decisions 21 The email by which the applicants were notified that their first exemption application was refused stated: Under the current global pandemic international travel is highly restricted to critical reasons only. Attendance at a wedding does not meet this criteria. I note that the applicants have provided details concerning the reception venue and package which is for up to 350 people. While the wedding in the US, I am taking into consideration the Australian Government's restrictions on weddings and social gatherings and the potential risk to the Australian community. Based on the information provided I am not of the opinion the travel is appropriate to the risk posed to the Australian community. 22 The decision to refuse the applicants' second exemption request noted that the applicants had submitted that the first decision was "legally problematic". The reasons for the second decision were as follows: While we understand this is a difficult time for the family, under the current global pandemic international travel is highly restricted to critical reasons only. In consideration of the facts demonstrated to me by the persons I am of the opinion exceptional compassionate circumstances do not exist to approve the applicant to leave Australian territory as the travel is not urgent or pressing. Neither attendance at a wedding nor the applicant's willingness to abide by quarantine laws on return - should travel be granted - does not constitute a pressing need to travel. As stated in the letter from the lawyer the applicant's family made the active decision from the outset to not move the wedding to another date that would avail the applicants to travel when travel bans were lifted. This was a decision made by the family in full view of the current travel bans and their cultural customs in place during this global pandemic. I am of the opinion the travel is not appropriate to the risk posed to the Australian community (Original emphasis.) 23 The text of the reasons for the two refusal decisions was also contained within internal Australian Border Force documents exhibited to Ms Heffernan's affidavit, and also to Ms Ford's affidavit. I discuss those documents below. It is sufficient to note here that those internal documents comprised a kind of brief or recommendation to the delegate who made each decision, as well as containing the decision itself and the brief reasons given for the decision.
Grounds of review 24 By their further amended originating application, the applicants advance three grounds of review. The amendments remain underlined. 1. The decision-maker made an error of law by asking the wrong question in determining the applications. Particulars a. In respect of the 7 June 2020 decision, Tthe decision-maker reasoned that there was no 'critical reason' for the Applicants' proposed travel, when s 7 of the Determination instead contemplates an exemption being granted if there are 'exceptional circumstances'. b. In respect of the 7 June 2020 decision, Ffurther or alternatively to particular 'a', the decision-maker engaged in an evaluative exercise in weighing up the proposed travel with the purported risk created by the travel, when s 7 of the Determination provides that exceptional circumstances will have been demonstrated by the provision of 'a compelling reason for needing to leave Australian territory', without a further enquiry of weighing such a reason against the risk it might create. c. In respect of the decision of 9 June 2020, the decision-maker reasoned that he or she was 'of the opinion exceptional compassionate circumstances do not exist', when s 7 of the Determination instead contemplates an exemption being granted if there are 'exceptional circumstances' d. In respect of the decision of 9 June 2020, further or alternatively to particular 'c', the decision-maker engaged in an evaluative exercise in weighing up the proposed travel with the purported risk created by the travel, when s 7 of the Determination provides that exceptional circumstances will have been demonstrated by the provision of 'a compelling reason for needing to leave Australian territory', without a further enquiry of weighing such a reason against the risk it might create. 2. In respect of the decision of 7 June 2020, The decision-maker inflexibly applied policy or fettered its discretion without regard to the merits of the Applicants' particular case, in refusing the application on the basis that the proposed travel was for a wedding, or failed to take into account the relevant considerations of the reason for travel being both 'urgent and unavoidable personal business' and 'compassionate or humanitarian grounds', the wedding being for the Applicants' son, and the religious significance of the wedding. 3. The decisions were was made without affording the Applicants procedural fairness. Particulars a. In respect of the decision of 7 June 2020, Tthe decision-maker took into account 'the Australian Government's restrictions on weddings and social gatherings and the potential risk to the Australian community'. b. In respect of the decision of 7 June 2020, Nneither of these considerations were the subject of any invitation to the Applicants for comment. c. In respect of decision of 9 June 2020, the decision-maker took into account 'the risk posed to the Australian community'. This consideration was not the subject of any invitation to the Applicants for comment.
Resolution 25 Given the urgency of the application and the Court's determination of it, the parties' written and oral submissions are not summarised in these reasons. Where necessary, I refer to particular arguments in the resolution of each of the grounds of review. 26 There is no challenge to the validity of the Determination. There is no challenge to the legal authority of the decision-makers to consider and determine the exemption applications.
Ground 1 27 The applicant made some contentions about the brevity of the reasons given for the first refusal, contending the circumstances were not so urgent that the language in the reasons, and its departure from the language of the Determination, could be forgiven in some sense that might be covered by the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259. 28 It may be accepted that the Court should read and construe the reasons given by reference to the language used. However the context and nature of the decision, including the urgent circumstances in which the power may need to be exercised, should not be ignored, as I explain below. 29 I do not accept the submission that either of the decision-makers "asked the wrong question". The text of the Determination itself is sufficient to reject this ground. By s 7(2) if a person provides a "compelling reason" for "needing to leave" Australian territory, then the Determination in effect deems there to be exceptional circumstances. The language of s 7(2) may not exhaust the concept of exceptional circumstances but it is a clear statutory indication of what is included within it. The fact the delegate used the language of "critical" reason rather than "compelling" reason is not indicative of error. In context the adjective "critical" conveys the same meaning as "compelling": that is, something with a high level of persuasion and importance, justifying relief from what is otherwise an absolute prohibition on travel because of a national health emergency. Since s 7(2) is not definitional, I do not consider it would even be appropriate to describe the language of "critical reason" as loose. The delegate was assessing the strength and quality of the reason advanced, which is what was required. 30 I reach the same conclusion about the attack on the language of the second refusal and the use of the phrase "exceptional compassionate circumstances". The adjective "compassionate" is drawn from the policy documents I discuss below. However it is plain that situations which indicate a need for compassion to be exercised may fall within the concept of "exceptional circumstances". The phrase used illustrates an awareness of this. I do not consider this language indicates the decision-maker had unduly narrowed the approach required by the Determination. 31 As to the contention that the wrong test was applied because s 7 does not call for any balancing exercise of the reason for travel against the risk it might pose to the Australian community, I reject that contention. It is inherent in the purpose and structure of the Determination that it contemplates that Australian citizens and permanent residents may return to Australia after their travel, as they have a legal right to do. The risk to the Australian community from the disease which is the subject of the Determination is the reason for the existence of the Determination. The overall purpose of the Determination is to reduce the risk of the contraction and spread of COVID-19 in the Australian community, including by persons who leave Australia and whose re-entry cannot be prohibited because they have a legal entitlement to return. 32 In deciding whether permission to leave should be granted, as an exception to the general and blanket prohibition in s 5, a permissible consideration is what risk the Australian citizen or permanent resident might pose to the community on return to Australia, depending (for example) on matters such as where that person has been, for how long, and what that person has been doing while overseas. Here, the applicants were proposing to travel to the United States, one of the countries notoriously badly affected by the spread of COVID-19. 33 Ground 1 fails.
Ground 2 34 This ground only relates to the first refusal. During oral argument, and after indicating that ground 2 was restricted to the first refusal, counsel for the applicants commenced developing his argument as if ground 2 extended to the second refusal. On questioning by the Court, counsel then indicated he sought additional leave to have ground 2 extended further to include the second refusal. Given the urgent circumstances in which the proceeding was being heard, the already considerable movement in the applicants' grounds and the need to ensure fairness to the respondent in responding to what was being put, very much "on the run", leave to extend ground 2 to the second refusal was refused. 35 However, when the further amended originating application was provided to the Court and the respondent, ground 2 was expressed to extend to the second refusal in one of its two aspects. After further discussion, the Court ruled that no such leave had been given to the applicants. That is the explanation for the qualification in the second order granting leave to the applicants to rely on the further amended application. The version of ground 2 that is extracted at [24] above reflects the Court's understanding of the ground for which leave was granted. 36 Ground 2 assumes there is an administrative policy promulgated to guide the exercise of the exemption power. As the applicants submit and the respondent appears to accept, it may be possible to describe what is on the Department of Home Affairs website (reproduced as an exhibit to the applicants' solicitor's second affidavit) as a policy. It is not a formally promulgated policy but it certainly gives some indication of the kinds of circumstances those responsible for administering the Determination consider fall within the exemption, and provides information and guidance on how powers under the Determination will be exercised. It is correct to describe the document as a "policy" in that sense. 37 In response to a Notice to Produce, another document was produced by the respondent. It is an Australian Border Force document, and was tendered without objection. It is entitled Operation Directive - Border Measures. It is in the form of a memorandum to all "Regional Commanders" of the Australian Border Force, and other Australian Border Force officers. Its subject is described as "Operation Direction: Response to Novel Coronavirus". It notes the effect of the Determination on outwards travel in the following terms: Australian citizens and permanent residents are prohibited from travelling out of Australia unless exempted. This travel ban came into effect from 25 March 2020 at 1200 AEDST. 38 Under the heading "Situation", relevantly the following statement is made: From 25 March all Australian citizens and permanent residents have been prohibited to travel outside of Australia unless exempted, either through being in an exemption category or seeking exemption through Commissioner Discretion for compassionate and compelling circumstances. 39 There follows a detailed section of the document headed "Operating Instructions". Under the further heading "Outwards Travel", there is a list of circumstances which might be covered by the exemption power. What is set out there is: i. Persons whose travel is as part of the response to the COVID-19 outbreak, including the provision of aid. ii. Persons whose travel is essential for the conduct of critical industries and business (including export and import industries) iii. Persons who are travelling to receive urgent medical treatment that is not available in Australia. iv. Persons who are travelling on urgent and unavoidable personal business. v. On compassionate or humanitarian grounds. vi. Where the travel is in the national interest. 40 The six circumstances in this document are the same as those which appear on the Australian Border Force website. 41 There follows a description of the process which will be undertaken in assessing requests for an exemption and the information required: Outward Commissioner Discretion All non-exempt persons seeking to travel out of Australia must be granted an exemption to travel through a Commissioner Discretion application. The delegation for a Commissioner Discretion decision has been granted to the ABF SESB1 level. Individual applications requesting an exemption for travel are considered on a case by case basis where there are compassionate or compelling circumstances. Exemptions must be granted prior to departing Australia. The request for an exemption through Commissioner's Discretion must be accompanied by: d. Passenger details: name, DOB, visa type and number, passport number, Australian residential address, Australian telephone number e. Case information: why this case should be considered for Commissioner Discretion/Exemption f. Supporting statement: the request should be accompanied by a statement and evidence of how the individual meets one of the grounds for an exemption or [exercise] of the Commissioner's Discretion listed above. The accompanying evidence to support the case could include the following: g. Proof of ID i. Marriage certificates ii. Birth certificates iii. Death certificates iv. Proof of relationship (shared tenancy agreement, joint bank account etc.) v. Visa status vi. Letter from a doctor or hospital indicating why the travel is necessary vii. Letter from an employer indicating why the travel is necessary or the work undertaken is critical viii. Letter from a related business or company Note: All evidence supporting a travel exemption claim needs to be officially translated into English. Travellers who have a compassionate or compelling reason to depart Australia can also use this form to apply for an exemption. 42 The applicants contend that some of the documentation prepared by the Australian Border Force for the consideration of their requests indicates that Australian Border Force officers sought to fit the request within one of these six circumstances, for example "Persons who are travelling on urgent and unavoidable personal business". The applicants contend, and the evidence shows, that their legal representative used two of the six categories of circumstances as headings in her submission supporting the request. In other words, the applicants sought to bring themselves within the identified categories. No doubt that was good advocacy on the part of their legal representative, even if not legally necessary, as the applicants' counsel submitted. The fact that some of the Australia Border Force documents do not pick up both categories identified by the applicants' solicitor is in my opinion of no relevance to the lawfulness of the decisions, nor to the question whether there was any unlawful fettering of the discretion conferred by s 7. 43 The applicants' counsel engaged in some criticism of the composition of the Australian Border Force documents containing the decision, which are in a table form for both decisions. The two tables have headings "case officer assessment" and "delegate decision" and the applicants appear to submit this structure, together with the emails accompanying them, support the proposition that the request "passed through several hands" and therefore the Court cannot take what is in other parts of the documents outside those headed "delegate decision" as evidence of what was taken into account by the decision-makers (rather than others). I reject that submission. It is clear (for example from the delegate's reasons for the first refusal) that the delegate looked at the documents provided by the applicants. There is reference in the reasons for the first refusal to the applicants having "provided details concerning the reception venue and package which is for up to 350 people". That is an accurate description of some of the documents provided by the applicants, which include a general quotation for the venue to be used for their son's wedding. There is no reference to that information in the part of the table headed "case officer assessment". I infer the delegate herself considered the documents supporting the applicants' request. 44 The policy alleged to have fettered the delegate's discretion on the first refusal was not expressly identified. It would appear, at least on one understanding of ground 2, the "blanket policy" the applicants point to is that travel to weddings is not able to constitute exceptional circumstances. I accept the respondent's submissions that there is no evidence of any such blanket policy and the evidence suggests the opposite, especially the "case by case" approach which the administrative processes contemplate. The term "case by case" is used several times in the Australian Border Force policy document, as the extracts above demonstrate. 45 On another understanding, the blanket policy may be contended to be that the decision-maker had to fit every exemption request within one of the six reasons in the document to which I have referred above, and on the Department of Home Affairs website. 46 If that is the blanket policy identified, then I reject the contention that the evidence discloses any fettering of the discretionary exemption power by such a policy. That is because there is no such policy evident in the documents. There are six examples of compelling or compassionate circumstances given. Circumstances which can be described as compassionate or compelling (or "critical") are, as I have found, within the concept of "exceptional circumstances", although they may not exhaust that concept. The mere fact that some examples are given is not indicative of fettering: it is good administrative practice, designed to assist both prospective applicants to understand how their exemption request might be articulated, and to assist decision-makers in identifying what kinds of circumstances might be "exceptional": see generally Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; 255 CLR 231 at [19]. 47 Contrary to the applicants' contentions, and adopting the findings I have made above about the tabular structure of the documents containing the two decisions, it is clear the decision-maker appreciated the wedding is that of the applicants' son. That is set out next to the heading "Summary of application": Applicants are seeking to travel the United States of America to attend their sons wedding. 48 Further, contrary to the applicants' contentions, I do not consider the fact there was some "classification" of the applicants' request by reference to the examples in the Australian Border Force document (see [18] of the applicants' submissions) is indicative of legal error. In my opinion the repository of the power understood the nature of the request made. 49 As to the considerations aspect of ground 2, I am prepared to assume in the applicants' favour that the purpose for travel, or the reason for travel, outside Australia is properly seen as a relevant consideration to an exercise of power under s 7 of the Determination. That is because the subject matter of the exemption power is "exceptional circumstances". The premise of that criterion itself is that the reason or purpose for travel will be assessed as part of the circumstances which cause the Australian citizen or permanent resident to seek to leave Australia. The Determination requires the reason or purpose for travel to be taken into account: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-42. 50 However, as the respondents submitted, that does not mean every aspect of a submission about the reasons or purposes need be addressed in the decision-maker's reasons, and particular statements about the reasons or purpose for travel are not themselves transformed into relevant considerations: cf Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 at [56]. Goundar involved an exercise of power to which a statutory obligation to give reasons attached. Here there is no such obligation, even if reasons might be subsequently compellable under the Administrative Decisions (Judicial Review) Act 1977 (Cth), after a request pursuant to s 13(1) of that Act. Therefore there is even less basis to draw an inference that a failure to mention a contention or a factual assertion about the reasons or purpose for travel means that the reasons or purpose for travel - as a consideration - were not taken into account. 51 Further, as was the case in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438 at [112], the document by which the applicants were notified that their first exemption request had been refused was "not a statement of reasons in the familiar form, whether under statute or otherwise". Consequently, what was said in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] applies with special force: 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.) 52 There is sufficient detail in the reasons, and the recommendations considered by the first delegate prior to making the decision, to demonstrate that the delegate did take the reasons or purpose for travel into account. As I have noted, the first recommendation expressly stated, in the section entitled "Summary of the application" that "Applicants are seeking to travel the United States of America to attend their sons wedding on 23 June 2020". 53 The email requesting a decision be made states: We have attached the Commissioner Discretion departures form and relevant evidence provided by the requestor for your consideration. (Emphasis added.) 54 Further, in the section headed "Attachments", the following appears: Letter from Immigration lawyer stating that the family is of the Jewish culture and that cultural dictations dictate that the parents SHOULD be present at the marriage ceremony (page 2 paragraph 7) 55 This evidence is ample indication that the delegate considered, in the sense of engaged with, the material presented by the applicants setting out their reasons or purposes for travel. The fact that the case officer's summary does not refer to all the detail in the applicants' application is not indicative of error; rather, it is consistent with the somewhat summary nature of the administrative process and the context of the Determination as part of an emergency regime. Thus, reliance on propositions such as those in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [52] and [62] are inapposite. 56 Ground 2 fails. 57 Even if ground 2 had been successful, I accept the respondent's submissions that the fact of the second request and its refusal might weigh against the grant of relief. The second refusal document expressly referred to the statements of the applicants and their rabbi, and so the very matters the applicants contend should have been considered were subsequently considered by another delegate.
Ground 3 58 This ground applies to both refusals. 59 I reject the contention that there has been a denial of procedural fairness. In those circumstances, it is not necessary to decide whether s 7 of the Determination, read with s 477 of the Biosecurity Act, evinces an intention to exclude any obligation to afford procedural fairness. It is sufficient to assume favourably to the applicants that the power to grant or refuse an exemption under the Determination is conditioned by an obligation to afford procedural fairness. 60 However, as the respondents submitted, the content of any procedural fairness obligation will depend on the statutory context: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26]. 61 The s 7 exemption power will generally be exercised in circumstances of some urgency. While the applicants' counsel sought to downplay the characterisation of urgency in the context of s 7, in my opinion "urgency" is an apt description. This is not a decision-making regime applicable in ordinary circumstances. It exists only because a national health emergency has been declared, on the basis of an international health emergency. The exercise of power under s 475 and then under s 477 is an emergency context. The travel prohibition in s 5 of the Determination is a sweeping and unprecedented prohibition, designed to reflect the seriousness of the declared emergency. As Ms Heffernan's affidavit deposed, on 30 January 2020, the World Health Organisation declared a public health emergency of international concern, and on 11 March 2020, the World Health Organisation declared COVID-19 to be a pandemic: that is, an infectious disease outbreak that spreads on a global scale. Any international travel undertaken in that context is likely to have as one of its characteristics a sense of urgency. 62 The exemption power may be exercised at the border, on proposed departure. It may be exercised some weeks before any proposed travel. The Determination is not time limited, although its terms contemplate a firm proposal to leave Australia and the proffering of a reason or purpose, as I have explained. On any view, the travel proposal of each Australian citizen or permanent resident made while the Determination is in force (and therefore the prohibition in s 5 is in force) is made in the context of a national and international health emergency where the national and international imperative is to contain and reduce the spread of the virus. The default position of the Determination is that international travel should not occur. 63 In those circumstances, I reject the applicants' submission that the content of procedural fairness can in any way be equated with, for example, a full administrative decision-making or merits review process. The entire context of the Determination is the existence of an emergency. The exclusion of the usual Parliamentary disallowance process indicates the exceptional nature of the Determination. 64 The obligation to afford a reasonable opportunity to be heard, assuming as I do that it exists, must conform to the circumstances of an emergency situation. 65 The applicants were capably represented and fulsome submissions, with supporting material, were made on their behalf to the Australian Border Force. A second submission (and request) was also made, seeking to respond to the rejection of the first request. I have found that the applicants' documents and submissions were considered. The applicants were, in the context of the nature of the power being exercised, given a reasonable opportunity to be heard. There was no adverse material relied on by the decision-makers of which they were not given notice. All that occurred was that what the applicants put forward as "exceptional" was not accepted to be such. 66 The decision-makers were not required, prior to their decision, to explain to the applicants or their legal representatives why they might be inclined not to see their circumstances as exceptional, unless what the decision-makers had in mind were matters which could not fairly be apprehended as raised or relevant from the material and the circumstances: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 592. 67 Consideration of the potential risk to the Australian community was an obvious matter, that being as I have explained one of the clear premises for the need to exercise the power under s 477 and to make the Determination. Consideration of the restrictions which exist in Australia about weddings was also in my opinion a permissible factor, and one the applicants could be expected to have anticipated. That is, it should have been expected the decision-maker might turn her or his mind to how wedding gatherings were restricted (or postponed) in Australia because of the pandemic. Those matters are legitimate factors in the very broad and qualitative assessment of what might be "exceptional circumstances", or might demonstrate a "compelling reason" for the need to travel. 68 Finally, if contrary to my findings there was some denial of procedural fairness in the first refusal, any denial was cured by the second request, as the applicants were on notice of the factors considered by the delegate in the first refusal. In relation to the second refusal, the first refusal expressly mentioned the risk to the Australian community (this factor being the subject of ground 3), so the applicants were also on notice about this matter by the time of their second request, and cannot be said to have been denied an opportunity to comment on that matter. Being represented, how and if the applicants chose to make comments was a matter for them. 69 Ground 3 fails.
Conclusion 70 Although the applicants' counsel capably developed his arguments, with considerable detail in the time available, ultimately I am not persuaded any of them should succeed. There being no misunderstanding of the task, it was a matter for each delegate whether what was set out by the applicants constituted "exceptional circumstances". Why the repository was not satisfied of this is made especially clear in the terms of the second refusal, with the emphasis about the family decision not to postpone the wedding, as other families have chosen to do. 71 The amended originating application must be dismissed. Both parties accepted costs should follow the event. Accordingly there will be an order for costs in the respondents' favour. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.
Baker
Commissioner of the Australian Border Force
[1994] FCA 293
[2015] HCA 50
[2015] HCA 3
[1996] HCA 6
[2006] HCA 63
The originating application for judicial review was dismissed. Costs were ordered against the applicants in favour of the respondent, to be fixed as a lump sum (see Orders and [71]). Leave to rely on a further amended originating application was granted with a qualification (see Orders 2 and [34]-[35]).