CLA15 v Minister for Home Affairs

1. The application for an extension of time in which to file an application for leave to appeal and for any appeal be refused and dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an application for an extension of time and leave to appeal from an order made by a judge of the Federal Circuit Court on 4 June 2018 dismissing an application for judicial review of a purported decision of a person within the Department of Home Affairs not to refer an application for Ministerial intervention under s 48B of the Migration Act 1958 (Cth) (the Act) to the Minister. 2 By way of background, the applicant is a citizen of Bangladesh who arrived in Australia on 27 June 2006. In December 2013, the applicant applied for a Protection (Class XA) Visa, which was refused by a delegate of the Minister. The applicant applied to the then Refugee Review Tribunal for review of this decision. The Tribunal Member noted that the applicant appeared to be under a misapprehension as to the process of Ministerial intervention: [5] … It is relevant to note here that the applicant was unrepresented and had apparently misunderstood the process relating to what is known as Ministerial intervention. A Tribunal officer therefore contacted him to explain that his case could not be referred to the Department for consideration by the Minister in accordance with s.417 of the Migration Act (which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so) until the Tribunal had made its own decision. For that reason the Tribunal did not agree to his request to delay making the decision. [6] On 21 April 2015 the applicant advised the Tribunal by telephone that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. In a second email to this Tribunal on 21 April 2015 the applicant reiterated he was not coming to the hearing and asked the Tribunal to make a recommendation in its decision regarding Ministerial intervention. 3 The tribunal affirmed the decision of the delegate, finding that the applicant was not a person in respect of whom Australia had protection obligations. The applicant then applied to the Federal Circuit Court for judicial review of this decision, considerably out of time. Whilst the Federal Circuit Court extended the period of time in which to apply, the application was ultimately dismissed on the ground of lack of demonstrated jurisdictional error. The applicant then applied to the Federal Court out of time for review of those orders of the Federal Circuit Court. That application was dismissed, not for delay, but for insufficient prospects of success. 4 On 6 March 2017, the applicant lodged an application with the Administrative Appeals Tribunal for review of the same decision of the delegate not to grant the protection visa and on 23 March 2017, the Administrative Appeals Tribunal found that it had no jurisdiction to carry out its statutory review. 5 The applicant then applied to the Department of Home Affairs for Ministerial intervention under s 48B of the Act, pursuant to which the Minister may, if the Minister thinks it is in the public interest to do so, determine that s 48A does not apply to prevent the person from applying once again for a protection visa. On 5 April 2018, a person from the Department of the respondent sent a letter to the applicant informing the applicant that the request for Ministerial intervention under s 48B of the Act did not meet the relevant guidelines and had been finalised by the Department without referral to the Minister. Sections 48A and 48B are relevantly in terms which are as follows: 48A No further applications for protection visa after refusal or cancellation (1) Subject to section 48B, a non‑citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non‑citizen is in the migration zone. … 48B Minister may determine that section 48A does not apply to non-citizen (1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. (2) The power under subsection (1) may only be exercised by the Minister personally. … (6) 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. 6 On 24 April 2018, the applicant commenced proceedings in the Federal Circuit Court seeking judicial review of the purported decision conveyed by the letter of 5 April 2018 not to refer the applicant's request for Ministerial intervention under s 48B. A notice of objection to competency was filed in which it was identified the view that the letter sent on 5 April 2018 was not a "migration decision" within the meaning of the Act and in relation to which there was no jurisdiction conferred on the Court. 7 Various other applications then took place in the Federal Circuit Court, including an application for recusal and orders in the nature of vexatious proceedings. This application need only focus on the proceedings involving the dismissal of the application for judicial review of the purported decision in the letter to which I have referred. The application in this Court was dated 7 August 2018 and contained a draft notice of appeal. That draft notice of appeal was amended without opposition by reference to paragraph 4 of the submissions filed in reply. The substantive points sought to be raised by the applicant are that: first, the primary judge fell into error in determining the jurisdiction of the Court; secondly, the objection of competency had no real objection properly put forward; and, thirdly, that he was denied procedural fairness in not having the jurisdictional issue properly explained to him. 8 Lest I have misunderstood any aspect of the substantive grounds, I will set out hereunder paragraph 4 of the submissions in reply and paragraph 37 of the applicant's affidavit dated 7 August 2018: Applicant's submissions in reply 4 Applicant's reasons for appeal proposed two alternative grounds. Applicant claims that Hon Judge Street fell into error determining jurisdiction of the court. The objection of competency had no real objection properly put forwarded to the court. Alternatively applicant sought answer from the court, what his honor referred by "properly invoking the jurisdiction" in his judgment. Why this issue was not explained to the litigant in person accepting his application for adjournment. Applicant's affidavit dated 7 August 2018 37 Applicant's argument was, he was denied natural justice because his application was not heard by minister. It was a breach of procedural fairness as it is conferred in ss48B(6) MA and related subdivision of the act. When applicant had credible evidence against his application to minister, delegate will have to refer it to the minister under the provision. If it was not referred it will be breach of procedural fairness under s474 of MA. 9 The short question before me is whether there is any basis to conclude that the course indicated by the Department in its letter was a decision which, under the statute, the Federal Circuit Court was entitled to review for relevant error, and whether in relation to it there was conditioned an obligation to afford procedural fairness by hearing the applicant before refusing to pass the application on to the Minister. 10 The matter is substantially covered by the joint judgment of the members of the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180. It is unnecessary to set out at length what their Honours said in that case beyond indicating that there was some clarification of what had fallen from the Court in the earlier cases of Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 and Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636, about the proper characterisation of the processes undertaken by the Department. The two points which I have identified are related. The first is, as is submitted by the Minister, that there was no decision under the Act, and it follows that there was no "privative clause decision" as defined in s 474 of the Act. Secondly, that there was no decision under the Act upon which there could be conditioned an obligation to afford procedural fairness. 11 The letter itself, on its face, indicates that there has been no attention to any procedural or other decision by the Minister, but rather, members of his Department have attended to an incoming letter from the applicant and dealt with it by reference to pre-existing guidelines within the Department. In the decision of the Court in SZSSJ, after a discussion of the various judgments of the Court in earlier decisions, the Court turned to questions of jurisdiction and natural justice. The Court was clear that s 48B, amongst other provisions of the Act, confers a non-compellable power that may be exercised by the Minister personally to make two distinct decisions; a procedural decision to consider whether to make a substantive decision, and a substantive decision to grant a visa or lift the bar. 12 In SZSSJ at [53], the High Court stated that "(t)he Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness." In [54], the Court then turned to the processes that may be undertaken by the Department to assist the Minister's consideration of the possible exercise of a non-compellable power. The Court indicated that: "(i)f the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister's consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness." 13 In [55], the Court indicated that "whether the Minister personally has made a procedural decision to consider whether to grant a visa or lift a bar in a particular case or class of cases is a question of fact." 14 Here, the primary judge was of the view, or could, on the material before him, be of the view that there was no personal procedural decision of the Minister to consider whether or not to make a substantive decision. On the material before him, the matter, unless there was any further material, was to the effect that there was a process undertaken by the Department to assist the Minister to make the procedural decision, and this had no statutory basis and did not attract a requirement to afford procedural fairness. 15 This is substantially the approach that has been taken in other cases such as AOA16 v Minister for Immigration and Border Protection [2017] FCA 697 by Pagone J. On this basis, there was no privative clause decision, and nor was there a decision to attract a requirement to afford procedural fairness. In these circumstances, on the material before the primary judge, I do not perceive that there is any reasonable prospects of success of the appeal, and for that reason, I would refuse the application to extend time in which to file and serve an application for leave to appeal or to appeal. 16 The orders of the Court are the application for an extension of time in which to file an application for leave to appeal and for any appeal be refused and dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.