The applicant made requests for Ministerial intervention under s 48B of the Migration Act 1958 (Cth) on 7 March 2022, 5 September 2022, and 13 September 2022.
Decisions were made on 24 March 2022, 7 September 2022, and 15 September 2022, respectively, not to refer the applicant's requests to the Minister.
The respondent accepts that the decisions were made in excess of the executive power of the Commonwealth.
The respondent accepts that, in the circumstances, the applicant's application for Ministerial intervention is yet to be finalised.
THE COURT ORDERS THAT:
The name of the respondent be changed to Minister for Immigration and Multicultural Affairs.
Order 1 made on 15 December 2023 be vacated.
Having regard to the matters noted above, and having found that the relief sought by the applicant is either not available or should not be granted, the proceeding be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
This proceeding was commenced on 15 August 2023 by the filing of an originating application for relief under s 39B of the Judiciary Act 1903 (Cth).
The substance of the claim, as then filed, was that the applicant had made a request for Ministerial intervention under s 48B of the Migration Act 1958 (Cth) (the Migration Act) in respect of his application for a protection visa and that a "delegate" had refused the request without reference to the Minister (now, the Minister for Immigration and Multicultural Affairs). The applicant relied on the decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; 408 ALR 381 (Davis).
The applicant also claimed that the Minister's delegate did, or failed to do, other things in relation to the applicant's request that also entitled the applicant to relief, although the form of that relief was not specified beyond a claim for interlocutory relief preventing the Minister from removing the applicant from Australia (I interpolate, pending the Minister's consideration of the request for intervention).
On 13 September 2023, at a case management hearing, the Minister gave an undertaking to the Court not to remove the applicant from Australia involuntarily before the hearing and determination of the application filed on 15 August 2023, without giving the applicant and the Court seven days prior notice of his intention to do so.
On 26 October 2023, the applicant filed an amended originating application. The amended originating application also does not contain any claim for relief. It does, however, contain a number of claims about the Minister's "delegate" which, when read with submissions also filed by the applicant on 26 October 2023, and with an affidavit made by the applicant on 16 August 2023, appear to be about a decision made on 15 September 2022 by a Departmental Officer to "finalise" the applicant's request for Ministerial intervention "without referral". Therefore, the applicant's claims in the amended originating application about what the "delegate" did, or failed to do, are not intelligible beyond the language in which the applicant has expressed those claims. Assessed at this level, the applicant's claims appear to be directed to the way in which he believes his request for intervention was handled by the Departmental Officer.
Having outlined these matters, it is appropriate that I record, without further delay, that the Minister accepts that the applicant has, in fact, made three requests for Ministerial intervention under s 48B of the Migration Act. These requests were made on 7 March 2022, 5 September 2022, and 13 September 2022. Decisions not to refer the requests to the Minister were made on 24 March 2022, 7 September 2022, and 15 September 2022, respectively. The Minister accepts that these decisions were made in excess of the executive power of the Commonwealth and that the applicant's request for Ministerial intervention is yet to be finalised.
The Minister acknowledged this fact in a letter dated 7 November 2023 from the Australian Government Solicitor to the applicant. This letter was written in response to the applicant's submissions to which I have referred. After recording the acknowledgement by the Minister, the letter continued:
As a consequence of this concession, the respondent accepts that your 3 requests are yet to be finalised, and we note that there has been no decision made by the Minister, personally, to either consider each request or to make a decision on intervention.
We note that your written submissions dated 26 October 2023 seek a writ of mandamus, directing the respondent to reconsider your requests. This is not an order capable of being made. This is because a writ of mandamus cannot issue in respect of any ministerial intervention power: see Davis v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 10; (2023) 97 ALJR 214 (Davis) [12], [104]-[105], [146] and [298].
Your written submissions also seek the constitutional writs of certiorari and prohibition. We consider that there would be no utility in the Court making such orders where the respondent accepts that the non-referral decisions were made in excess of the executive power of the Commonwealth and that your requests are yet to be finalised.
In these circumstances, the respondent's position is that the current proceeding no longer serves any purpose. For that reason, the respondent considers the appropriate resolution of the proceeding is that it should be discontinued.
The respondent would consent to that discontinuance with each party bearing its own costs, for the purpose of r 26.12(2)(b) of the Federal Court Rules 2011 (Cth). We attach a proposed minute of consent orders for your consideration. If you agree with the proposed orders, please sign and date the orders above 'Applicant' and send them back to me by email by 5pm on 10 November 2023. We will then send the orders to the Court, copying you into our email.
If, despite the respondent's position set out in this letter, you do not discontinue the application on the terms proposed, the respondent will rely on this letter in further submissions to the Court in relation to these proceedings, including as to their utility and on the question of costs.
Since providing the applicant with that letter, the Minister has attempted to achieve a resolution of the proceeding without the need for a hearing and the incurring of further costs. Unfortunately, the Minister's efforts have been in vain.
At the Minister's request, the proceeding was listed for a case management hearing on 17 November 2023 in an attempt to bring matters to a head. At that time, I endeavoured to explain to the applicant the significance of the Minister's acknowledgement, as contained in the letter of 7 November 2023. The applicant indicated that, nevertheless, he wished to proceed with his claim.
As it happens, at this time pro bono legal assistance was offered to the applicant by experienced junior counsel, as a result of a certificate issued under r 4.12 of the Federal Court Rules 2011 (Cth). In light of that offer of assistance, I deferred the hearing of the claim until 15 December 2023. This was to accommodate the availability of pro bono counsel and to provide the applicant time to receive counsel's advice. Subsequently, a Registrar of the Court granted permission to pro bono counsel to cease providing legal assistance. It is sufficient for me to record that, from correspondence sent to the Court by the applicant, it is apparent that the applicant was not content with the legal advice he had been given.
The applicant has endeavoured to support his case by two affidavits. The first affidavit was made on 16 August 2023. This affidavit annexes 375 pages of documentary material that is, except for one document, irrelevant to any issue that could properly be raised in this proceeding. The exception is the notification on 15 September 2022 that the applicant's request for Ministerial intervention had been finalised without referral.
The second affidavit was made on 25 October 2023. In that affidavit, the applicant foreshadowed his reliance on "new evidence submitted to the Minister in my most recent ministerial intervention filed in July 2023". The balance of the affidavit is largely devoted to a repetition of the claims asserted in the amended originating application, without elaboration. At the hearing, the applicant indicated that he did not intend to rely on the "new evidence" for the purposes of this application.
The applicant's written submissions dated 26 October 2023 are 38 pages in length and are almost entirely devoted to advocating why the applicant should be granted protection or complementary protection. It is not necessary to detail these submissions beyond noting that they confirm that the applicant is "appealing" against the decision of 15 September 2022. The submissions also detail the relief that the applicant claims, namely writs of certiorari, prohibition, and mandamus, as well as an order for costs.
The applicant also filed written submissions in reply. Apart from challenging the correctness of aspects of the Minister's submissions, the reply submissions advanced an application that the hearing of this proceeding be adjourned to await the judgment of the Full Court in AOZ23 v Commonwealth of Australia VID 866 of 2023 which, at that time, had been listed for hearing by a Full Court on 26 February 2024.
I did not accede to that request. I did, however, order that judgment in this proceeding not be delivered before judgment is delivered in VID 866 of 2023. I did so because of the possible relevance of the question whether the relevant Minister was personally aware that the applicant had made a request (indeed, several requests) for Ministerial intervention under s 48B of the Migration Act. It was my understanding, at that time, that this question would be considered in VID 866 of 2023. (As I understand it, the particular issue in VID 866 of 2023 was whether there was a duty on the Secretary of the relevant Department to refer a Ministerial intervention request to the relevant Minister). I also granted liberty to apply, given the Minister's indication that there was a possibility that the applicant's request for Ministerial intervention might be progressed in the intervening period.
As events transpired, VID 866 of 2023 was not heard on 26 February 2024. It was re-listed for hearing in August 2024. However, once again, the hearing did not proceed. It came to my attention on 18 September 2024, that VID 866 of 2023 no longer remained listed for hearing.
Accordingly, on that day, a communication was sent to the parties, on my direction, seeking their views on how the matter should proceed in the absence of a judgment in VID 866 of 2023. A response was provided by the applicant later that day, which included:
I would like to confirm that, as per the order issued by His honour Justice Yates on December 15, 2023, the judgment in this proceeding will not be delivered until after the appeal in VID 866 of 2023 is resolved. Given my reliance on the outcome of VID 866, I kindly request that the court continue proceedings in this matter until the judgment is issued.
The Minister's solicitors responded on 2 October 2024. The substance of that response was that the applicant's application for Ministerial intervention was before the Assistant Minister for Immigration and that the issue which had prompted my concern at the hearing was no longer an issue. The Minister's solicitors said that, in light of that matter, and the fact that it was expected that final orders in VID 866 of 2023 would be made resolving that proceeding without a hearing, judgment in this proceeding should now be given.
On 8 October 2024, an order was made by consent in VID 866 of 2023 dismissing that proceeding.
On the basis of the information provided in the Minister's solicitor's response of 2 October 2024, a communication was sent to the parties that day, which included:
His Honour understands that the applicant's last Ministerial intervention request has been forwarded to the Assistant Minister, but that no decision, procedural or final has been made by the Assistant Minister. If that understanding is correct, his Honour requests that evidence of that fact be supported by evidence. The evidence should be filed and served no later than 4.00pm on 11 October 2024. Once that is done, his Honour will proceed to deliver judgment.
On 11 October 2024, the Minister filed an affidavit by Lauren Rose Lai affirmed that day. This affidavit establishes that the applicant's application for Ministerial intervention was referred to the Assistant Minister for Immigration on 9 August 2024. The affidavit also establishes that the Assistant Minister: (a) has made no decision as to whether he wishes to consider exercising the power under s 48B of the Migration Act; (b) has given no indication if he will make such a decision; and (c) has given no indication if he will make a decision to exercise the power under s 48B.
In light of these developments, and the fact that proceeding VID 866 of 2023 has been dismissed by consent, it is appropriate that Order 1 made on 15 December 2023 be vacated and that this matter now proceed to judgment.
The Minister submits that a writ of mandamus cannot issue in respect of any Ministerial intervention power: Davis at [12], [104] - [105], [146], and [298]. The Minister points to s 48B(6) which provides:
The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.
I accept the Minister's submission. A writ of mandamus is not available to the applicant.
The Minister submits that the unavailability of a writ of mandamus also answers the applicant's claims for writs of certiorari and prohibition: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; 211 CLR 441 at [48], affirmed in Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [100]. I accept the Minister's submission that there is no utility in granting such relief in the absence of mandamus being granted. I accept, further, that there is no utility in granting such relief in any event. The Minister has acknowledged that the decisions not to refer the intervention requests were beyond power and that the applicant's application for Ministerial intervention is before the Assistant Minister and is yet to be finalised.
The application will be dismissed, with no order as to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.
Parties
Applicant/Plaintiff:
BXI23
Respondent/Defendant:
Minister for Immigration and Multicultural Affairs