KENNY J:
1 The facts and circumstances that led the appellants in these two cases to apply for judicial review in this Court are elegantly set out in the reasons of Charlesworth J.
2 These cases illustrate how an exercise of legislative power may give rise to intersecting exercises of executive power, all of which are subject to the Constitution and the general law. There is one essential question: can this Court on judicial review determine whether the non-statutorily based administrative actions taken by the Departmental officers in these two cases are unlawful because they are legally unreasonable? This was an initial question for each primary judge in both cases.
3 As explained below, it seems to me that the Court can decide this question on judicial review. The Minister's challenge to Robertson J's decision in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438, in which his Honour reached the same conclusion in similar circumstances, must fail. I agree, however, for the reasons stated by Griffiths J (and by Charlesworth J to the extent her Honour's reasons are consistent with his) that neither appellant has established that the challenged action was in fact unreasonable in the legal sense. Accordingly, the appeals in both cases should be dismissed.
4 As will be seen from what follows, I have reached my conclusion concerning the availability of the unreasonableness ground substantially, though perhaps not entirely, for the reasons stated by Griffiths J. In this event, it seems to me appropriate to set out the substance of my own reasons briefly.
5 These cases primarily concern the application of s 351 of the Migration Act 1958 (Cth) (the Act), an expressed object of which "is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens": s 4(1). Section 351 is one of a number of provisions in the Act conferring an extraordinary power of last resort: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [96], [99] (Gummow, Hayne, Crennan, Bell JJ); [111] (Heydon J). It permits the Minister to grant a non-citizen permission to enter or remain in Australia if the Minister thinks this is in the public interest after the non-citizen has exhausted all the other statutory processes for which the Act provides.
6 To understand the primary issue in these appeals properly, it is first necessary to understand the regulatory scheme established by the Act, and the place of s 351 in this scheme. Under the Act, whether a non-citizen is lawfully in Australia depends on whether the non-citizen holds an effective visa: ss 13, 14. An unlawful non-citizen, being a non-citizen without an effective visa, is liable to immigration detention and removal from Australia: ss 189, 198. The Act makes provision for visas of various kinds conferring permission to enter or remain in Australia, including bridging visas: ss 31, 37. These latter visas are classes of temporary visas, granted under Subdivision AF of Div 3, Pt 2 of the Act. The possibility of a bridging visa is contemplated by the Migration Regulations 1994 (Cth) (the Regulations) where a request has been made for an exercise of power under s 351 and upon satisfaction of other criteria.
7 The Act contains a range of provisions that afford an unsuccessful visa applicant an opportunity to apply to the Administrative Appeals Tribunal or another body for merits review with a view to obtaining a visa after one has been refused by an officer in the Minister's Department. Where a visa applicant has failed on a review conducted by the Tribunal under Div 3, Pt 5 of the Act, the visa applicant may seek the grant of a visa from the Minister, who under s 351 of the Act may make a decision more favourable to the visa applicant in substitution for the Tribunal's decision if the Minister thinks this is in the public interest. The power conferred by s 351(1) may only be exercised by the Minister personally (s 351(3)); and, if the Minister makes a decision in substitution for the Tribunal's decision, the Minister must ensure that a statement to that effect, with reasons, is laid before the Parliament: s 351(4). The Minister is, however, under no duty to consider whether to exercise the power in s 351(1), whether requested to do so, "or in any other circumstances": s 351(7).
8 I note in passing that ss 417 and 501J confer much the same power on the Minister where the Tribunal has made a decision against a visa applicant under provisions other than s 349 of the Act. Sections 48B and 195A, which have also been described as dispensing powers, have a similar structure and dispensing operation to ss 351, 417, and 501J of the Act: see Plaintiff S10/2011 at [27].
9 It must be borne in mind that since the Minister is under no duty to consider whether to exercise the power conferred on him by s 351(1), the Minister must first make a procedural decision about whether to consider making a substantive decision before making any substantive decision (that is, a decision about whether to substitute a decision more favourable to the visa applicant for that made by the Tribunal): see Plaintiff S10/2011 at [99(iv)] (Gummow, Hayne, Crennan and Bell JJ); [102] (Heydon J); also Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [52]-[53]; Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [70].
10 The executive power of the Commonwealth, with which s 61 of the Constitution is concerned, is engaged in various ways to ensure that s 351 can be given consistent and practical effect. As already indicated, the Regulations, which were made by the Governor-General (s 504), provide for the grant of a bridging visa where a non-citizen makes a request to the Minister under s 351 for a more favourable decision than that made by the Tribunal and where the person has not previously made such a request: see Regulations, Sch 2, cl 050.212(6). Broadly speaking, for the grant of a bridging visa in this circumstance, the applicant must meet various requirements, one of which may include the requirements of cl 050.212(6). Clause 050.212(6) provides that:
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the subject of:
(i) a decision in relation to an application made in Australia for a visa, or
(ii) a decision to cancel a visa; and
(b) in relation to the decision mentioned in paragraph (a), the applicant:
(i) is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351 or 417 of the Act; and
(ii) has made a request to the Minister to substitute a more favourable decision under section 345, 351 or 417 of the Act; and
(c) the applicant has not previously sought, or been the subject of a request by another person for:
(i) the exercise of the Minister's power under 345, 351 or 417 of the Act; or
(ii) a determination under section 48B of the Act
The grant of such a bridging visa would enable the recipient lawfully to remain in Australia in order that, once the request has been made for an exercise of the power in s 351, the recipient could enjoy the benefit of any favourable decision the Minister may ultimately make.
11 Bridging visas permitting a person in the position of each of the appellants to remain in Australia after a request has been made for an exercise of power under s 351 may also be granted under other provisions of the Regulations, including pending the outcome of legal proceedings referrable to the request. Indeed, although it appears that each appellant currently holds a bridging visa, neither holds a subclause 050.212(6) bridging visa. As explained below, however, whether the appellants have been granted a bridging visa under subclause 050.212(6) or some other provision of the Regulations pending the outcome of their requests or associated legal proceedings, does not affect the outcome of these appeals.
12 The executive power of the Commonwealth is also obviously engaged by s 351 itself since under this provision Parliament has conferred the power on the Minister to make a decision more favourable to the visa applicant in substitution for that of the Tribunal, in recognition that the Minister is part of the executive branch of government with responsibility for the Department of State responsible for the administration of the Act: Constitution, s 64; Administrative Arrangements Order, 30 September 2015, p 27 (noting that the Department of Home Affairs has been known by various names over the years).
13 In his capacity as the responsible Minister, the Minister has issued guidelines to officers of his Department concerning s 351 of the Act, which were applicable in each appellant's case. I interpolate here that these guidelines replaced the earlier guidelines relating to s 351 and a number of other provisions, which were considered in Plaintiff S10/2011 and SZSSJ. Like the guidelines considered in those cases, the guidelines relevant here were included in a Centralised Departmental Instruction System, and were written in the first person as instructions from the Minister: cf. Plaintiff S10/2011 at [34]. They adopted a similar structure to the earlier guidelines, although their provisions differed in certain significant respects. I return to these differences below.
14 The guidelines did not have a basis in the Act and did not have the force of law. Rather, they were an exercise of the executive power of the Commonwealth, made in furtherance of the execution of the Act and, relevantly, s 351. In substance, their status was informed by the Minister's constitutional responsibility for his Department and the statutory power conferred on him by s 351 itself. As to the work done by Departmental officers under the guidelines, to adopt the language of French CJ and Kiefel J in Plaintiff S10/2011 at [51], that work "may be regarded, for the purposes of s 61 of the Constitution, as an executive function incidental to the administration of the Act and thus within that aspect of the executive power which 'extends to the execution and maintenance … of the laws of the Commonwealth'".
15 As explained hereafter, the guidelines applicable to the making of the Departmental decisions at the centre of these appeals are relevant to the question of whether the decisions are amenable to judicial review on the ground of unreasonableness. The purpose for the guidelines, as stated by the Minister, was to:
• explain the circumstances in which I may wish to consider intervening in a case
• explain how a person may request that I consider intervening in their case
• explain when my Department should refer a case to me
• confirm that if a case does not meet these guidelines, I do not wish to consider intervening in that case.
16 The guidelines instructed the Departmental officers to whom they were addressed how they were to deal with requests for the Minister's intervention under s 351 of the Act, including how to identify requests that the Minister "may wish to consider" and, the corollary, the requests that the Minister did not wish to consider at all.
17 After setting out what were referred to as "principles" for intervention, the Minister described the types of "[c]ases that should be brought to [his] attention" as being "[c]ases that have one or more unique or exceptional circumstances" such as those within categories the guidelines described. One such category was "strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit …".
18 Also within the guidelines, the Minister instructed that:
Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing[.]
Types of disqualifying circumstances were subsequently identified, for example, where "the person has left Australia".
19 Under the heading "How requests for Ministerial intervention will be progressed", the Minister stated, in connection with a "first request":
If the Department assesses that the case has unique or exceptional circumstances such as those described in section 4 of these guidelines, it will be brought to my attention in a submission. I may consider intervening if I think it is in the public interest to do so.
… If the Department assesses that the case does not have unique or exceptional circumstances such as those described in section 4 of these guidelines, and is not inappropriate for me to consider, it will be finalised by the Department without referral to me.
If I do not wish to intervene or consider intervening in the case, whether or not it has been referred to me, the Department will reply on my behalf to the person or their authorised representative that I do not wish to intervene or consider intervening in that case.
20 Regarding a "repeat request" (as defined), the guidelines instructed that, as a rule, the Minister did not wish to consider them, although such a request "may be referred" to the Minister in "limited circumstances", where "the Department is satisfied [that] there has been a significant change in circumstances … [and] these new, substantive issues fall within the unique or exceptional circumstances".
21 The guidelines concluded with the statement that:
A request for [the Minister] to consider intervening is not an application for a visa and unless making the request leads to the grant of a Bridging visa, the request has no effect on the department's removal obligations.
22 The guidelines were not directed to the manner in which the Minister, personally, decided under s 351 whether to consider to make a substantive decision in any particular case; and, if so, what, if any, substantive decision should be made. Rather, the guidelines were directed to an anterior point in the process. The guidelines relevant to the present appeals operated to screen out any requests that Departmental officers assessed as being of the kind that the Minister had directed should not be referred to him for any form of consideration under s 351. Where Departmental officers assessed a request as being of this kind, the Department finalised the case without referring the request to the Minister. A request would only be referred to the Minister for at least preliminary consideration (as to whether the Minister would consider whether to make a decision to grant a visa) where the Departmental officers assessed the request as being of the kind that the Minister had instructed should be brought to his attention.
23 Departmental officers assessed the appellants' requests as being ones that did not fall within a class that the Minister had directed should be referred to him and therefore took steps to finalise the appellants' cases without reference to the Minister. As a consequence, with respect to the appellants' requests, the Minister did nothing at all under s 351 of the Act, and no statutory power of any kind was engaged.
24 This means that the circumstances falling for consideration in these appeals are relevantly different from those in Plaintiff M61/2010E and SZSSJ, where the Minister had made a personal procedural decision to consider whether to exercise the relevant power: see Plaintiff S10/2011 at [45], [46]; SZSSJ at [33]. In those two cases, the subsequent Departmental processes were undertaken to assist the Minister's consideration as to whether to make a substantive decision in favour of the relevant non-citizens: in consequence these processes had a statutory basis. Where, as here, the relevant Departmental processes were undertaken prior to the Minister making any personal decision at all under s 351, the Departmental processes can have no statutory basis: see SZSSJ at [54]. The assessments and decisions made by the relevant Departmental officers - to the effect that the appellants' requests were not of a kind the Minister had instructed he wanted to consider and that the Department should therefore proceed to finalise their cases without referring them to the Minister - were part of these processes. As the Solicitor-General for the Commonwealth, Dr Stephen Donaghue QC, accepted, the relevant Departmental officers made these decisions not to refer the appellants' requests in exercise of Commonwealth executive power.
25 In each appeal, the appellants contend, and the respondents deny, that the challenged decisions are amenable to judicial review by this Court on the unreasonableness ground. It is to this issue that I now turn. Before proceeding further I would interpolate that, for the reasons stated by Griffiths J in his reasons at [80], I agree that the fact that s 351(1) of the Act confers a discretion is sufficient to attract the principle in Li, and the terms of s 351(7) do not require the contrary conclusion.
26 As already stated, the personal power conferred on the Minister by s 351 may properly be characterised as an extraordinary power of last resort (being exercisable only after all other relevant statutory processes have been exhausted and there being no duty to consider exercising it in any particular case). It may be borne in mind, however, that what the Departmental officers did was in the ordinary course of the administration of an Act and that that Act regulated the rights of individuals (who because of their legal status as non-citizens had no right to be in Australia other than as conferred under the Act). Their assessments and consequent decisions were in many respects not out of the ordinary at all.
27 There are some fundamental propositions that bear on the amenability of judicial review. In exercising executive power, whatever its source, the Minister and his Departmental officers are subject to law. Section 75(v) of the Constitution ensures that the High Court is capable of restraining any officer of the Commonwealth from exceeding power and entrenches a minimum of judicial review: see Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 363 (Dixon J). This, it has been said, is a textual reinforcement for Dixon J's statement in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 about the significance of the rule of law for the Constitution: Plaintiff S157 at [103]. By virtue of s 39B of the Judiciary Act 1903 (Cth), the terms of which follow s 75(v), this Court is placed in the same position as the High Court in this regard.
28 The substance of the proposition that s 75(v) ensures that an unlawful exercise of executive power by an officer of the Commonwealth is capable of limitation, whether its source is constitutional, statutory or non-statutory, has been accepted for many years: see, for example, R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, especially at 220-221 (Mason J); Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; 204 CLR 82 at [45] (Gaudron and Gummow JJ); Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 at [69] (McHugh, Gummow and Hayne JJ); and Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [126]-[129] (Gageler J). It has also been accepted for many years that the concomitant duty of the High Court or this Court in determining the lawfulness of executive action extends not only to action alleged to be beyond prerogative power but to action "alleged to be otherwise in disconformity with the law": see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35; Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274, referencing with approval Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 ("CCSU") at 278 (Bowen CJ), 280 (Sheppard J) and 302-304 (Wilcox J); Aye v Minister for Immigration and Citizenship [2010] FCAFC 69; 187 FCR 449 at [98] (Lander J), [123] (McKerracher J); cf. Attorney-General (Cth) v Ogawa [2020] FCAFC 180; 281 FCR 1 at [73]. There was no dispute in these appeals about these general propositions.
29 What may be termed the width and depth of the judicial review that the Court can undertake depends on the nature and subject matter of the challenged exercise of executive power: see, for example, Toohey at 219-220 (Mason J); Re Ditfort; ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 369-370; Peko-Wallsend at 277; Aye at [98], [123]. This proposition was also not in dispute. Rather, the dispute in these appeals centred on an argument that the nature of the challenged decisions precluded review on the legal unreasonableness ground.
30 To evaluate this argument, it is useful to consider the nature of the ground itself. The common law respecting judicial review is built on the rule of reason, as Rooke's Case (1597) 5 Co Rep 99b illustrates. At issue in that case was a decision of the Commissioners of Sewers to impose on one landowner alone the charges for repairs to a river bank from which the other riparian owners also benefitted. Coke LJ held, at 100, that the exercise of such a discretion "ought to be limited and bound with the rule of reason and law", and that the Commissioners' decision failed because it did not observe this principle. This tends to support the proposition that it should be accepted that in principle the ground of legal unreasonableness may be relied on in challenging a decision made in exercise of executive power, irrespective of the source of that power.
31 The principle that judicial review is founded on reason has continued to inform the common law since Rooke's Case. Nearly 300 years later, in Sharp v Wakefield [1891] AC 173 at 179, Lord Halsbury LC referred to Rooke's Case in connection with a decision to refuse a licence under the Intoxicating Liquor Licensing Acts when he said:
An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and "discretion" means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's Case [5 Rep. 100, a]; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular.
32 Although their primary focus was the lawfulness of a statutory exercise of discretion, the reasons of French CJ and of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 acknowledge more broadly that reason or rationality has been and remains a fundamental organising touchstone for assessing the lawfulness of decisions of the executive branch of government at common law in Australia: see Li at [24]-[26] (French CJ), [65] (Hayne, Kiefel, and Bell JJ); also Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [88]-[89]. This has led the High Court to hold that reasonableness is an implied condition of an exercise of statutory discretionary power. It is tolerably clear, however, that this is not the only manifestation of reason as a fundamental common law principle, particularly in the context of judicial review.
33 This last proposition is, so it seems to me, confirmed by the reasoning of courts in the United Kingdom respecting the amenability of administrative decisions to judicial review. As the Full Court of this Court noted in Peko-Wallsend, CCSU accepted that the lawfulness of an exercise of non-statutory executive power can be examined in common law judicial review proceedings on the unreasonableness ground: CCSU at 410-411 (Lord Diplock), 417 (Lord Roskill); 423-4 (Lord Brightman). This was in part because a challenge for unreasonableness was a discrete ground, separate from procedural fairness which had a different legal history. (Concerning the history of these two grounds, see further M J Beazley, 'Judicial Review and the Shifting Sands of Legal Unreasonableness' (10th Annual Whitmore Lecture, Council of Australasian Tribunals, 12 October 2016); De Smith, Woolf and Jowell, Judicial Review and Administrative Action (Sweet & Maxwell, 5th ed, 1995) 377-399; Robert French, 'Singapore Academy of Law Annual Lecture 2013 - The Rule of Law as a Many Coloured Dream Coat' (2014) 26 Singapore Academy of Law Journal 1 at 13; Osborn v Parole Board [2013] UKSC 61 at [69]-[70].)
34 Since CCSU, courts in the United Kingdom have continued to undertake judicial review of non-statutorily-based administrative decisions on what have been called the "traditional grounds", an expression which includes the ground of unreasonableness or irrationality, in cases where the challenged decision affects the rights or interests of an individual: see, for example, Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3; [2016] AC 1457 at [24]-[26] (Lord Carnwath, with Lord Neuberger, Lord Mance, Lord Wilson and Lord Sumption agreeing) and R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Everett [1989] QB 811 at 820. That the courts in the United Kingdom also undertake judicial review on the non-traditional ground of proportionality review, which is not part of Australian public administrative law, and that, those courts apply a doctrine of legitimate expectation that has been rejected in Australia has little, if any, bearing on the amenability of non-statutory decisions to judicial review on the ground of unreasonableness.
35 Similarly, differences in constitutional understandings of executive power in the United Kingdom and Australia (as outlined in Williams v Commonwealth [2012] HCA 23; 248 CLR 156 (e.g., at [25], [150]-[159], [488]) and illustrated in Miller v Prime Minister [2016] UKSC 3; [2020] AC 373) are not relevant in these appeals, given the nature of the executive power with which they are concerned: for example, these appeals do not involve an exercise of an executive capacity also enjoyed by private persons, as to which the availability of judicial review in the two jurisdictions may perhaps differ.
36 For all these reasons, subject to general constitutional and common law constraints (some of which are mentioned below) and any applicable statutory limitations, there should be no continuing doubt that an exercise of executive power (whatever its source) is amenable to judicial review on the unreasonableness ground. Such an exercise of power may be challenged on this ground either because the reasons given by the decision-maker disclose no "intelligible justification" in the Li sense or because the outcome is such that the circumstances disclose legal unreasonableness, as in Rooke's Case referred to earlier. The long common law history of the unreasonableness ground confirms that it is separate and distinct from the procedural fairness ground. In the context of these appeals, the fact that the decision of the High Court in Plaintiff S10/2011 precludes reliance on the procedural fairness ground in relation to the decisions under challenge does not of itself prevent reliance on the unreasonableness ground.
37 As already noted, the width and depth of judicial review in any particular case may be reduced or enlarged by the nature and subject matter of the challenged exercise of executive power. The constraints on judicial review in Australia, even where loosely analogous to constraints in the United Kingdom, may be derived from the common law or have an Australian constitutional dimension. This is, so it seems to me, illustrated by Dr Donaghue's submissions at the hearing of these appeals.
38 In these appeals the Commonwealth Solicitor-General submitted that there could be no judicial review of the challenged decisions on the unreasonableness ground because the decisions were not subject to "ascertainable, sufficiently precise legal limit". Although not spelt out in argument, I understand this submission to be a reference to the fact that, by virtue of Ch III of the Constitution, this Court, like the High Court and other federal courts, can exercise only judicial power (and power incidental to judicial power). Of its nature an exercise of judicial power requires that there be judicially ascertainable standards capable of application by a court: see, for example, Australian Communist Party at 272 (Kitto J); also Thomas v Mowbray [2007] HCA 33; 233 CLR 307, particularly at [321]-[322] (Kirby J); [501]-[512] (Hayne J). It may be accepted that there will be occasions when non-statutory decisions made by the executive in exercise of power in s 61 of the Constitution are not susceptible to analysis according to judicially ascertainable standards capable of application by a court. This may be on account of the nature or subject matter of the exercise of power, or for some other reason. It is unnecessary to explore this issue further, because the exercise of power at issue in these appeals was not of this kind.
39 There were clearly ascertainable standards capable of application and according to which a court could determine whether the challenged decisions were legally unreasonable. As Rooke's Case illustrates, common law courts have understood and applied the concept of legal unreasonableness for a very long time, and in Australia there is little continuing doubt about the nature of the judicial inquiry that the concept of legal unreasonableness involves: see [36] above. Whether the non-statutory decisions in question were unreasonable in the legal sense should be determined by reference to the context in which they were made: that is, by reference to the material before the decision-makers at the time of making each of the decisions; and by reference to the guidelines under and according to which the decisions were to be made. The latter requires consideration of the guidelines' purpose, as well as attention to the principles and other matters that the guidelines instructed were to be observed or considered in making the assessments and decisions as directed by the Minister. As Robertson J said in Jabbour at [91], "[t]he guidelines provided a purpose and set out criteria or considerations" for the decisions that were to be made under them. The guidelines relevant to the challenged decisions ensured that there was no absence of clearly ascertainable standards capable of application by a court in determining whether the decisions were legally unreasonable.
40 On these appeals, the Commonwealth Solicitor-General also submitted that the challenged decisions were not amenable to judicial review because the decisions did not affect the appellants' rights or interests.
41 Of course, judicial review proceedings may only be brought by a person with standing to do so (see, e.g., Animals Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35 at [120]-[121]; and Argos Pty Ltd v Minister for the Environment and Sustainable Development [2014] HCA 50; 254 CLR 394 at [43] (French CJ and Keane J), [66]-[68] (Hayne and Bell JJ), and [86] (Gageler J). The applicant for judicial review must therefore be adversely affected by the challenged decision or be otherwise a person aggrieved by it. Generally speaking, the question of standing is 'subsumed within the constitutional requirement of a "matter"': Plaintiff S10/2011 at [68]. There was, however, no suggestion that the standing of the appellants to bring judicial review proceedings to challenge the decisions in question was in contest. As Griffiths J observes in his reasons at [89], the Minister must therefore be taken to accept that the appellants are persons aggrieved in sense that the common law would permit them to seek a public law remedy with respect to the decisions. This was not therefore the issue to which the Solicitor-General's submissions were directed when he contended that the challenged decisions did not affect the appellants' rights or interests.
42 It may be that this submission was directed to a common law requirement of the kind mentioned in Youssef: see [34] above. Or, it may be that it was directed to a constitutional requirement deriving from Ch III of the Constitution. That is, as a general rule, judicial power involves "a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation": see R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374. Perhaps the argument was intended to convey that there could be no judicial review of the challenged decisions, because the proceedings could not engage judicial power because they could not, relevantly, settle any right or obligation. Perhaps the submission was intended to refer generally to a common law requirement having a constitutional dimension in Australia. It is unnecessary to decide which of these possibilities was indicated by Dr Donaghue's submission, because the argument, however understood, cannot succeed.
43 There is, it seems to me, little doubt that the decisions in question relevantly affected the appellants' rights and interests. Both appellants had been refused visas by Departmental decision-makers. Both failed before the Tribunal on a review under Div 3, Pt 5 of the Act. In addressing their requests to the Minister, they each sought the favourable exercise of the extraordinary power conferred on the Minister by s 351 to obtain relief from the ordinarily applicable provisions of the Act. Broadly speaking, these provisions governed the appellants' presence in Australia. As already stated, the power permitted the Minister to grant the appellants each a visa in substitution for the Tribunal's decision if the Minister thought this was in the public interest. As we know, the appellants' respective requests never reached the Minister. This was because, acting or purporting to act under the guidelines addressed to them, the relevant Departmental officers decided that the appellants' requests were not of a type that the Minister had stated that he wished to consider; and in conformity with the guidelines, the appellants' requests should not therefore be referred to the Minister. Accordingly the Minister was not informed of the appellants' requests and no occasion arose for the Minister to make a decision of a kind contemplated by s 351. As I have already noted, and is more fully explained by Griffiths J at [93]-[95] of his reasons, the guidelines applicable to the appellants were significantly different in the latter respect to the guidelines at issue in Plaintiff S10/2011. In these circumstances, the challenged decisions evidently affected the appellants' interests in seeking to engage the power conferred by s 351 on the Minister.
44 In another sense too, the challenged decisions affected the appellants' rights. As already noted, the statutory scheme, which includes the Act and the Regulations, makes provision for bridging visas including where the visa applicant has made a request to the Minister to substitute a more favourable decision under s 351 of the Act: cf. the Regulations, Sch 2, subcl 050.212(6). The grant of a bridging visa prevents the recipient's compulsory removal from Australia and detention prior to removal: the Act, ss 189, 198. If the appellants' requests to the Minister to exercise his discretions under s 351 succeeded and they were each granted a further visa, their permission to remain at liberty in Australia continued. If their requests failed, then, they either left Australia voluntarily, or their removal from Australia was mandated by the Act and they were liable to detention until removed: ss 189, 198. The outcome was the same whether their request failed because the Minister declined to exercise any part of the power conferred by s 351 in the appellants' favour; or because the Departmental officers determined that, in conformity with the guidelines, their requests should not be referred to the Minister. Their rights or interests were, therefore, necessarily affected by the challenged decisions.
45 Furthermore, for these purposes, it would not matter whether individuals making a request to the Minister to exercise the s 351 power in their favour held a bridging visa under cl 050.212(6) of Sch 2 of the Regulations or under some other provision dependent on another circumstance associated with the request, such as the existence of related legal proceedings. The fact remains that the grant of an effective bridging visa permits the visa holder to remain at liberty in Australia until such time as the request is finalised, which may entail the completion of the legal proceedings.
46 For these reasons, I would reject the submission that the challenged decisions were not amenable to judicial review because the decisions did not affect the appellants' rights or interests, or because they were not subject to "ascertainable, sufficiently precise legal limit". There was no other suggested reason why the challenged decisions were not amenable to judicial review on the unreasonableness ground.
47 There are two remaining matters. First, for the reasons stated by Charlesworth J, I would grant leave to Mr Davis to agitate on his appeal whether the announcement of the guidelines amounted to the Minister making an advance procedural decision to consider making a substantive decision whether to grant a visa in those cases in which the Departmental officers found that a request met the guidelines' criteria for referral. This question was not raised before the primary judge. Indeed it was not raised in the appeal proceeding prior to the filing of written submissions for Mr Davis. Having granted leave, for the reasons stated by Charlesworth J, I would reject the submissions made by Mr Davis to the effect that an advance procedural decision had been made as argued. Also, for the reasons stated by Charlesworth J, I would refuse leave to Mr Davis to amend his notice of appeal to include proposed ground 2.
48 For the reasons stated, both appeals should be dismissed. It is unnecessary to consider the nature of the relief that might have been granted had there been a different conclusion.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny.