Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The applicant be granted leave to amend his amended originating application dated 1 August 2019.
2. The application be dismissed.
3. The applicant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 This is a proceeding in which an unsuccessful applicant for a partner visa, Mr Davis (the applicant), requested the first respondent (the Minister) to exercise his personal power under s 351(1) of the Migration Act 1958 (Cth) (the Act) to substitute for a decision of the Administrative Appeals Tribunal (the Tribunal) another decision more favourable to him. He made this request "only to be told that [it] has not even been forwarded to the Minister because the circumstances of the case do not fall within certain guidelines that the Minister has issued": see Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510 at 511 [1]. 2 On 8 May 2019, the third respondent, an Assistant Director in the Department, Ms Karen Dix, concluded, in accordance with the relevant guidelines, that the Department should finalise the applicant's request without referral to the Minister, because the claims and circumstances presented in the request were not "unique or exceptional" when assessed against those guidelines. The applicant contends that this "decision" was "made unlawfully due to a misconstruction of the guidelines" and was unreasonable, in the sense that no reasonable decision-maker could have failed to refer the application to the Minister by reference to the description in the guidelines of unique or exceptional circumstances. 3 In Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 (Plaintiff S10/2011), the High Court held that, where the Department has not referred a case to the Minister in accordance with such guidelines, no statutory power is engaged and there is no requirement to afford procedural fairness. In particular, there is no requirement to provide an opportunity to be heard to a person requesting of the Department consideration by the Minister of the exercise of a relevant power (here under s 351 of the Act): ibid at 668 [100] (Gummow, Hayne, Crennan and Bell JJ). See also Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 198-200 [46]-[55] (SZSSJ), where the Court summarises the effect of the three separate judgments in Plaintiff S10/2011. 4 If the matter were free from authority, I would have thought that the reasoning of the High Court in both Plaintiff S10/2011 and SZSSJ in relation to procedural fairness would apply with equal force here - that is to say, that a "decision" under the guidelines not to refer an applicant's request to the Minister is likewise not amenable to review on the ground that it was "unreasonable". Absent authority, I would have thought that because assessments by officers are not capable of affecting, defeating or prejudicing rights, interests or legitimate expectations (see Plaintiff S10/2011 at 642 [3] (French CJ and Kiefel JJ)), and because no statutory power is ever engaged, the guidelines would not ordinarily attract to them a requirement to act reasonably, especially in a case where the complaint is that the delegate failed to understand correctly, or misunderstood, the case being advanced. In that case, although the complaint is of legal unreasonableness, it is rather more akin to a complaint about procedural fairness. It would follow that an application, such as Mr Davis makes in this proceeding, for review of a departmental decision not to forward the applicant's request to the Minister on that ground, would be liable to summary dismissal. 5 The judgment of Robertson J in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 369 ALR 620 (Jabbour), however, contains observations to the contrary. In that case, his Honour, by way of obiter dicta, held that the mere displacement of the common law presumption in favour of procedural fairness with respect to the exercise of power under s 351 of the Act did not mean that principles of legal reasonableness were likewise displaced: at 636 [81], 639 [92]. That view has also recently been endorsed, again by way of an obiter observation, in Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457 at [22] (Mortimer J). 6 Although the Minister filed written submissions with respect to what he contends were a number of errors in his Honour's obiter dicta reasoning in Jabbour, those submissions were not fully developed in oral addresses, for reasons that included considerations of comity. It is, however, unnecessary to consider those submissions here because, for reasons I explain below, the impugned decision¸ as was also the case in Jabbour, was not legally unreasonable. 7 Before turning to the merits of the application, I need to deal with the applicant's application to amend his amended originating application to include the following relief: (a) a writ of certiorari to quash the "decision"; (b) a writ of mandamus to require the Secretary of the Department to consider and determine according to law the applicant's request for ministerial intervention; and (c) a writ of prohibition or an injunction to prevent any of the respondents from giving effect to or relying upon the decision. 8 These amendments are necessary in order to invoke jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth). Without them, the applicant would be left seeking only bare declarations. Absent any declaration of any immediate right, duty or liability, there would then be no "matter" arising under the Constitution (s 39B(1A)(b)) or a law made by the Parliament (s 39B(1A)(c)): see Griffith University v Tang (2005) 221 CLR 99 at 131 [90] (Gummow, Callinan and Heydon JJ); Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 405-406 [61]-[62] (Gaudron and Gummow JJ). 9 I propose to grant the applicant leave to amend his amended originating application dated 1 August 2019, to include the following relief: 1. A declaration that the decision maker, the Third Respondent, erred in law in deciding on 8 May 2019 (and giving notice on 10 May 2019) that the Applicant's request for ministerial intervention did not meet the guidelines for referral to the Minister because it was not the type of case that should be referred to the Minister ("the decision"). 2. A declaration that the Applicant's request for ministerial intervention was not finalised. 3. A writ of certiorari to quash the decision. 4. A writ of mandamus to require the Second Respondent to consider and to determine according to law the Applicant's request for ministerial intervention. 5. A writ of prohibition or an injunction to prevent the respondents from giving effect to or relying upon the decision. 6. An order that the First Respondent pay the Applicant's costs of this application. 7. Such other orders as the Court thinks appropriate. 10 It follows that the court has jurisdiction to entertain the application under s 39B(1) of the Judiciary Act 1903 (Cth).