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.
https://covid19.homeaffairs.gov.au/leaving-australia
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.