Grounds 1 and 2
97 In our view the key question in relation to grounds 1 and 2 is whether the Minister adopted a procedure that was reasonable in the circumstances to afford an opportunity to be heard to the appellant, who had an interest apt to be affected by the exercise of the power. Adapting what was said in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [82], did the procedure adopted so constrain the opportunity of the appellant to propound his case for a favourable exercise of the power as to amount to a "practical injustice"?
98 The Minister, by exercising the power under s 46A(2) of the Migration Act, allowed the appellant to make a valid application for a TPV or a SHEV and a letter to this effect, dated 23 May 2016, was sent to the appellant. (It appears this may have been a re-sent invitation as the appellant may also have been sent an invitation to apply for a TPV or a SHEV by letter dated 10 December 2015, although nothing turns on this.) We treat the 23 May 2016 letter as the Minister's determination under s 46A(2) "by written notice given to an unauthorised maritime arrival" that s 46A(1) did not apply to an application by that unauthorised maritime arrival, the appellant, for a visa of either of the two classes specified in the letter. Any separate determination by the Minister under s 46A(2) was not in evidence.
99 By that letter, the appellant was invited to apply for a TPV or a SHEV, and encouraged to do so within 28 days, but was told that if he required more time he may take up to 60 days from the date of the letter without the need to request an extension.
100 The 23 May 2016 letter did not state expressly any prospect of the s 46A(1) bar being reimposed.
101 The primary judge, at [31], referred to a further letter sent by the Department to the appellant on 30 November 2016. As her Honour noted, that letter is not in evidence.
102 By letter dated 25 January 2017, the appellant was reminded to apply for a TPV or a SHEV. He was told that he had been given 60 days to lodge an application by earlier letter, that the Department had not received an application from him, and he must lodge an application for a TPV or a SHEV within a further 60 days, that is, "within 60 days of the date of this letter."
103 The appellant was told by that same letter that if he was unable to make an application within the next 60 days, he must tell the Department why by contacting the Department immediately by email to a specified email address stating the reason why he was unable to lodge an application.
104 The same letter stated that the Minister had the power to revoke the determination allowing the appellant to lodge an application and if he did not lodge an application within the next 60 days the Minister may revoke the determination. The appellant was told this would mean that he could no longer lodge an application.
105 The appellant did not lodge an application or contact the Department.
106 By letter dated 30 March 2017, headed "Final reminder to apply for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV)", the appellant was again told that the Minister had the power to revoke his decision allowing the appellant to lodge an application, given a further 14 days to lodge an application for a TPV or a SHEV, and told that if he did not so lodge an application the Department would refer his case to the Minister to consider changing his decision. The appellant was told that this would mean that he could no longer lodge an application for a visa in Australia.
107 The appellant was given a verbal reminder to apply for a TPV or a SHEV on 17 May 2017. On that date he telephoned the Department to change his address and contact details.
108 On 21 May 2017, the Minister issued a media release headed "Lodge or leave - Deadline for illegal maritime arrivals to claim protection". The document stated that the government had that day set a deadline for thousands of "Illegal Maritime Arrivals" to prove they are genuine refugees and owed protection by Australia. It was said they must lodge applications for processing by the Department by 1 October 2017. It said there were 7,500 "Illegal Maritime Arrivals" who had failed or refused to present their case for asylum. It was said that the 1 October deadline was non-negotiable. Any person who had not lodged an application to have their claim for asylum assessed by the Department by that date would be deemed to have forfeited any claim to protection, the media release stated. There is no evidence that the appellant saw this media release at the time or that it was drawn to his attention.
109 On or around 30 May 2017, the appellant indicated that he intended to apply for a protection visa. An appointment was made for the appellant to collect Freedom of Information documents and the reissued invitation letter but on 31 May 2017 the appellant did not attend that appointment.
110 On 9 June 2017, the Department again wrote to the appellant "regarding the deadline to apply for a TPV or SHEV". That letter does not appear to be in the evidence but is referred to in the next letter from the Department to the appellant.
111 On 1 September 2017, the Minister issued a further media release. The media release stated that "Illegal Maritime Arrivals" in Australia now had just one month remaining to apply for a TPV or SHEV. It was said that those people had been afforded ample opportunity to make an application so that any protection claims could be assessed by the Department. Those who did not lodge an application before 1 October, the media release said, "will be deemed not to have any genuine protection claims and will not be given another option to present claims." The Minister is quoted as having said that those who failed to apply would be subject to removal from Australia and banned from returning, and that they should make arrangements to depart Australia immediately. Again, there is no evidence that the appellant saw this media release at the time or that his attention was drawn to it.
112 On 8 September 2017, the Department wrote to the appellant stating that if he was seeking protection in Australia he must apply for a TPV or SHEV before 1 October 2017. The appellant was told that if he did not apply before 1 October 2017 he would be taken not to be seeking protection and expected to depart Australia. Details were provided as to how the appellant could apply.
113 On 22 September 2017, the Department sent the appellant a letter headed "Last notice - 1 October 2017 - deadline to apply for a Temporary Protection visa or a Safe Haven Enterprise visa". The appellant was told that if he was seeking protection in Australia he must apply before 1 October 2017. The appellant was told that the Minister had made a decision under s 46A(2C) of the Migration Act to revoke or cancel the determination that allowed the appellant to apply for a TPV or a SHEV. He was told that the revocation or cancellation of his determination would take effect on 1 October 2017 and that this meant that if he did not apply before 1 October 2017 he would be barred from applying for a TPV or SHEV and he would need to make arrangements to depart Australia. He was told it was therefore very important that he took this opportunity to apply for a visa before 1 October 2017. He was told that if he did not so apply and did not make arrangements to depart, he would be subject to detention and removal from Australia. The letter set out how to apply.
114 It appears that this letter was returned to the Department on 19 October 2017.
115 As found by the primary judge at [40] and [46], on 4 October 2017 the Minister's Revocation Decision came into effect, revoking the lifting of the s 46A bar.
116 On 18 January 2018 the appellant was located and detained under s 189(1) of the Migration Act and subsequently transferred to Villawood Immigration Detention Facility.
117 The appellant claimed in his "Detection Client Interview", dated 19 January 2018, that he "did not lodge a Temporary Protection or Safe Haven Enterprise visa because he has a mental health condition, he has a phobia of leaving his room and believes people are looking at him. Due to his vulnerable state he does not have any friends to assist him to prepare his protection visa application."
118 Thereafter, the appellant attended an appointment with "the psychiatrist". After listing certain conditions that the psychiatrist had noted a working diagnosis of, it was said: "IHMS have noted that these conditions may impose a barrier to participating in his immigration processes and lodging applications."
119 We note, but place no weight on, the contention in the letter dated 28 February 2018 from the Refugee Advice & Casework Service that the appellant instructed that Service "that he was not aware of the specific date of the deadline imposed by the Department…".
120 In our opinion, in addressing the issue we have posed at [97] above, it is not appropriate to consider only the statutory power in s 46A(2C) of the Migration Act to revoke a determination made under s 46A(2) if the Minister thinks that it is in the public interest to do so. The question, in our opinion, is whether in the circumstances we have outlined, the appellant was denied procedural fairness where the substance of the communications with him was that he had a limited time to exercise the opportunity given to him to make an application for a TPV or a SHEV.
121 In other words, assuming in favour of the appellant that the Minister did owe obligations of procedural fairness to the appellant, the issue is as we have outlined at [97] above, namely whether the Minister adopted a procedure that was reasonable in the circumstances to afford an opportunity to be heard to the appellant, who had an interest apt to be affected by the exercise of the power.
122 We would identify the appellant's interest as his ability to apply for a TPV or a SHEV consequent upon the earlier determination under s 46A(2) to permit the appellant to apply for one of those visas.
123 In our opinion the procedure adopted provided ample opportunity to the appellant to act to safeguard that interest by so applying.
124 The process, that we have outlined, adopted in relation to the decision made by the Minister on or about 21 May 2017 to exercise his power under s 46A(2C) to revoke his determination under s 46A(2) did not give rise to a practical injustice: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] as explained in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [36] and [57]. The appellant was given a reasonable opportunity to advance his case by applying for a TPV or a SHEV. Put another way, because the process adopted in relation to the Minister's exercise of the revocation power under s 46A(2C) allowed the appellant to safeguard his relevant interests by applying for a TPV or a SHEV, no practical injustice could have flowed from whether or not he was invited to make representations in relation to the exercise of the revocation power.
125 In our opinion, however, the appellant also had the opportunity to make representations as to why any decision to revoke the s 46A(2) determination should be delayed, or not made, in his case. Indeed, the letter to the appellant dated 25 January 2017 gave the appellant the opportunity to say that he was unable to make an application within the next 60 days, and to tell the Department why, by contacting the Department immediately by email to a specified email address stating the reason why he was unable to lodge an application. As we have said, the same letter stated that the Minister had the power to revoke the determination allowing him to lodge an application and if he did not lodge an application within the next 60 days the Minister may revoke the determination. The appellant was told this would mean that he could no longer lodge an application.
126 Further, the letter dated 30 March 2017 expressly drew the appellant's attention to the possibility that, if the appellant did not lodge an application for a visa, the Department would refer his case to the Minister to consider revoking his decision allowing the appellant to lodge an application.
127 We do not accept the submission on behalf of the appellant that he was not afforded procedural fairness because he did not know the case he had to meet or that he should address public interest considerations. In our view, there was no case he had to meet and procedural fairness did not extend beyond the appellant having the opportunity to put forward why in his case he should be permitted to apply for a TPV or a SHEV beyond the specified timeframe for the revocation.
128 We do not accept the submission on behalf the appellant that the Minister did not give the appellant a reasonable opportunity to be heard about why the revocation should not be exercised in his case because "his reasons might have included his own statements, and assessments by medical health professionals which concurred with the IHMS psychiatrist's 'ongoing diagnosis of a panic disorder with agoraphobia' which 'may impose a barrier to participating in his immigration processes and lodging applications'." In our opinion, the appellant has not established that the process miscarried by virtue of his ill-health.
129 On the question whether procedural fairness was excluded, as held by the primary judge at [113]-[114], we begin with the principle stated by the High Court in SZSSJ at [75] that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The High Court said the presumption operated unless clearly displaced by the particular statutory scheme.
130 Earlier, in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [15], French CJ, Gummow, Hayne, Crennan and Kiefel JJ said, in relation to procedural fairness, that the presumption was that it was highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, and that that presumption derived from the principle of legality.
131 In our opinion, the presumption has not been clearly displaced and the Parliament has not expressed its intention with irresistible clearness.
132 The Minister had the power to make a determination that the appellant could make a valid application for a visa under s 46A(2) "by written notice given to" the appellant. Because he exercised that power, the two distinct step analysis described by the High Court in the Offshore Processing Case at [70], involving a decision to consider exercising the power to lift the bar and a subsequent decision whether to exercise that power to lift the bar, is not presently significant.
133 Once the Minister had made that determination under s 46A(2), the appellant had a sufficient right or interest: the ability to make an application for a TPV or a SHEV.
134 Turning to Plaintiff S10, in concluding that procedural fairness was not there attracted, it is important to bear in mind, as noted by a majority of the High Court at [89], that in some of those cases officers of the Department had found that the request did not meet the criteria in relevant guidelines and the request was not referred to the Minister, and in other cases the Minister himself considered that it would not be in the public interest to intervene and consequently did not exercise the relevant dispensing powers.
135 It was against those circumstances that their Honours pointed, at [99], to the following significant characteristics of what they referred to as the dispensing provisions, being ss 48B, 195A, 351 and 417. It is s 48B which bears the closest similarity to s 46A, although the two provisions were introduced at different times.
136 First, the Minister must think it is in the public interest to exercise the power.
137 Second, the power may only be exercised by the Minister personally and may not be delegated.
138 Third, the Minister does not have a duty to consider whether to exercise the power.
139 Fourth, if the Minister does exercise the power the Minister must cause to be laid before each House of the Parliament a statement that sets out the instrument of revocation, and sets out the reasons for the revocation, referring in particular to the Minister's reasons for thinking that the Minister's actions are in the public interest.
140 Fifth, while the personal circumstances of an individual may be taken into account, they are not a mandatory relevant consideration. Individual interests and rights are dealt with by provisions of the Migration Act regulating applications and providing for review of decisions concerning visas.
141 All of these matters apply to the power in s 46A(2C). One significant difference between the power in ss 48B and 46A is that the determination under the former provision means that s 48A does not apply to prevent an application for a protection visa "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."
142 Another distinguishing feature, noted in Plaintiff S10 at [99], is that the premise for the operation of s 48B is that there has been the refusal of a protection visa with attendant Tribunal engagement. That is because s 48A applies where an application for a protection visa has been refused, whether or not the application has been finally determined. In those circumstances, and subject to s 48B, a non-citizen, while in the migration zone, may not make a further application for a protection visa.
143 The primary judge noted this distinction at [108] but concluded, at [109], that the circumstances in which the present Revocation Decision was made provided substantial similarities. By the lifting of the s 46A(1) bar by the Minister's earlier exercise of s 46A(2), the primary judge said, the appellant was placed in a similar circumstance as the plaintiffs in Plaintiff S10: he was provided the opportunity to apply for a TPV or SHEV and so avail himself of the provisions of the Migration Act regulating applications and providing for review of decisions concerning visas, although he did not avail himself of that course. Thus, the primary judge concluded, temporally, the appellant was in the same position in the period immediately before the present revocation as the plaintiffs in Plaintiff S10: see at [80]. As will shortly appear, we do not accept this analysis.
144 The primary judge considered, at [106], that a further potential distinguishing feature was that s 46A(2C) does not share with the dispensing provision in s 195A(3) the express limitation that in exercising the power the Minister is not bound by subdiv AA or AC of Div 3 of Pt 2 of the Migration Act, but is bound by all other provisions of that Act (cf Plaintiff S10 at [28] dot point 4), although her Honour noted that s 46A(2C) shared with the dispensing provision s 48B that it is located in sub-div AA of Div 3 of Pt 2 of the Migration Act.
145 There is, we think, a limit on how far an analysis of the present kind can proceed by reference to enumerated differences or distinctions and whether they are present or absent. It is necessary to proceed by reference to principle.
146 Nevertheless, an important part of the reasoning of the plurality in Plaintiff S10 was at [100], where their Honours pointed to the availability of access to the exercise of the powers there under consideration "only to persons who have sought or could have sought, but have not established the right to, a visa." It was that matter which gave rise to the analogy with South Australia v O'Shea [1987] HCA 39; 163 CLR 378 at 410 and it was that matter together with the distinctive nature of the powers conferred upon the Minister (as personal, non-compellable, "public interest" powers), which was described as being of determinative significance. That factor is present in s 48B but absent in relation to the present power, as we have explained at [142] above.
147 Another point of distinction between s 48B and the present power is that there is no express power in s 48B to revoke a determination. It may be that such a power would be implied by s 33(3) of the Acts Interpretation Act 1901 (Cth), but the significant point for present purposes is that, as we have said, s 48B(1) fixes a period of seven working days in which an application for a protection visa may be made by the non-citizen. This is in contrast to the present exercise of power under s 46A(2) where the Minister did not, although he could have, specified a period under s 46A(2A).
148 It is also important, in our opinion, that a person such as the present appellant in respect of whom the revocation power is exercised would not be, prior to revocation, in the same position as the plaintiffs in Plaintiff S10. The revocation power in s 46A(2C) arises only where the Minister has decided to exercise the statutory power under s 46A(2) to determine that s 46A(1) does not apply to a person; indeed, that is what is being revoked. Accordingly, before the revocation power is exercised a person such as the appellant is permitted to apply for a visa, which is an interest apt to be affected that was not present in Plaintiff S10. Nor in the particular circumstances of this case, which serve as an illustration of the place s 46A(2C) occupies in the statutory scheme, was the appellant in a similar position to the plaintiffs in Plaintiff S10. The Minister was considering giving effect to his intention to limit the period or to enforce a deadline for applications and for that purpose had to exercise the power presently under consideration, in s 46A(2C). The Minister had decided to exercise that power so that, again, the two distinct step analysis described by the High Court in the Offshore Processing Case at [70] is not significant. Indeed, the better view may well be that after SZSSJ the Offshore Processing Case two distinct step analysis is only ever relevant to the question whether Departmental procedures in connection with the dispensing powers (in contrast to anything done by the Minister personally) attract procedural fairness: see SZSSJ at [77].
149 By contrast, in Plaintiff S10, as French CJ and Kiefel J explained at [2] the plaintiffs there asserted that the issue of the guidelines in relation to each of the sections involved "a decision by [the Minister] to decide to consider the exercise of those statutory powers" and further asserted that, having decided to consider the exercise of his or her powers, the steps taken under the guidelines to inform that consideration were steps towards the exercise of those powers. The plaintiffs said that their rights and interests were directly affected by that consideration and that the valid exercise of the powers conferred by ss 48B, 195A, 351 and 417, to consider whether to exercise the powers conferred by those sections, was conditioned upon compliance with the requirements of procedural fairness. Those propositions were rejected but they are a long way from the circumstances of the present case, or any other case involving s 46A(2C), where the relevant statutory power lifting the bar had been exercised and the Minister intended to re-impose the bar by revoking the s 46A(2) determination. In our opinion it is not a compelling circumstance that after the revocation, if valid, the appellant would be in the same circumstances as the plaintiffs in Plaintiff S10.
150 It is true that the power to revoke was non-compellable but it was the only means available to the Minister to limit the period for applications in light of his earlier determination, which was not limited as to time.
151 We also note that although by s 46A(2C) the Minister may revoke a determination if the Minister thinks that it is in the public interest to do so, and in that sense the public interest is a mandatory relevant consideration, in considering what the public interest requires the Minister may take into account the personal circumstances of an individual: see, by analogy, Plaintiff S10 at [99(vi)]. Further, the Minister has a discretion whether or not to revoke and it was not suggested that the personal circumstances of the appellant, or a person in the general position of the appellant, could not be taken into account in the sense that they were a prohibited (irrelevant) consideration. Thus an opportunity to be heard may permit those personal circumstances to be brought to the attention of the Minister.
152 For these reasons we consider that the primary judge was in error in concluding, at [113]-[114], that the particular statutory scheme leads to the conclusion that s 46A(2C) evinces the necessary intendment to displace a requirement that the appellant be afforded procedural fairness before the Minister made the Revocation Decision. However, as we have said, we are not persuaded that there was any failure to afford procedural fairness to the appellant in respect of that decision.