ECR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background 4 The applicant is an Iranian citizen who arrived in Australia by boat in 2013. By reason of s 5AA, he is an "unauthorised maritime arrival" for the purpose of the Act. As an unauthorised maritime arrival the applicant is barred from making an application for a visa in Australia by operation of s 46A(1) of the Act. The Minister, however, may exercise the power under s 46A(2) of the Act to lift the bar and permit the applicant to make an application for a visa. 5 In 2016, the Minister lifted the bar under s 46A(1) of the Act to allow the applicant to apply for a safe haven enterprise visa. A safe haven enterprise visa is a type of "protection visa" within the meaning of s 35A of the Act. 6 On 1 August 2016, the applicant applied for a safe haven enterprise visa. In his application the applicant claimed to be an atheist and that he had angered his father and brother-in-law by offending the Islamic faith. Both his father and brother-in-law were said to be strict Muslims and member of Iran's Revolutionary Guard. The applicant claimed that they had found him drinking alcohol and had him arrested for which he was convicted and received 80 lashes. The applicant claimed that he was later detained for two days. The applicant said that he left Iran to escape oppression at the hands of his father and brother-in-law. He said that he had expressed anti-Muslim views on Facebook which would make him target if he returned to Iran. 7 On 13 July 2017, a delegate of the Minister refused to grant the applicant a visa. 8 On 2 May 2018, that decision was affirmed by the IAA (IAA Decision). The IAA accepted that the applicant's father and brother-in-law were strict Muslims and members of the Revolutionary Guard. However, the IAA did not accept that the applicant was an atheist primarily for the reason that those claims had not been raised upon his arrival or in interviews held with the applicant shortly thereafter. 9 During 2017 the applicant commenced a de facto relationship with an Australian citizen whom I shall refer to as Ms B. Their relationship is ongoing. 10 On 4 June 2018, events occurred which led the applicant to being convicted of a number of assault offences and sentenced to a period of imprisonment, following which he was taken into immigration detention. 11 With the intention of making a further application for a protection visa, on 27 June 2020 the applicant wrote to the Department and made the s 46A referral request and the s 48B referral request.

The statutory and administrative Scheme 12 Under s 48A of the Act, a non-citizen who has previously been refused a protection visa cannot make a further application whilst the person remains in Australia. The Minister, however, has a personal, non-compellable power under s 48B to lift the bar under s 48A and allow a person to make another protection visa application where he or she considers that it is in the public interest to do so. Section 46A of the Act adopts a similar structure. A persons who is an "unauthorised maritime arrivals" under the Act cannot make an application for a visa in Australia: s 46A(1) of the Act. The Minister has a personal, non-compellable power under s 46A(2) to lift the bar imposed by s 46A(1) of the Act and allow a person to make an application, if it is in the public interest to do so. 13 The powers conferred by s 46A(2) and s 48B of the Act to lift the relevant bar are personal to the Minister and non-compellable. The Minister has no duty to consider the exercise of these powers but may choose to do so. Administrative arrangements have been put in place which direct the Department as to the kinds of requests to lift a bar that should be referred to the Minister to be considered personally. Non-statutory instruments known as "guidelines", but better characterised as directions (see Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [90] (Gummow, Hayne, Crennan and Bell JJ)), have been issued and are to be applied by departmental officers in deciding whether requests such as the s 46A referral request and the s 48B referral request made by the applicant should be referred to the Minister for the Minister's personal consideration. 14 In the present case the relevant directions are the Minister's s46A(2) Guidelines (s 46A Guidelines) and The Ministerial Intervention Power under s48B of the Migration Act 1958 (s 48B Guidelines) (together, the Guidelines).

The decision to refuse the referral requests 15 The s 48B Guidelines essentially require a departmental officer to consider, first, whether the request raises any new claim for protection and, second, whether any new claim is likely to engage Australia's protection obligations. 16 In his letter to the Department in which the s 46A referral request and the s 48B referral request were made, the applicant essentially advanced two new claims. First, since his first application for a protection visa he had converted to Christianity. Second, his de facto partner, Ms B, would be significantly impacted if he were required to leave Australia. The Officer concluded that the applicant's claim to have converted to Christianity would not engage Australia's protection obligations. 17 In relation to the applicant's relationship with Ms B, the departmental minute which records the Officer's decision summarised the applicant's claim in the following terms (emphasis added): • Unique and exceptional circumstances exist due to his relationship with an Australian citizen, Ms [B]. Strong compassionate circumstances exist, which if not recognized would result in serious, ongoing and irreversible harm to an Australian citizen. • [The applicant] has been in this relationship since 2017 and it has been maintained since his imprisonment. This is noteworthy as Ms [B] was one of the victims of his crime. • Ms [B] suffers from anxiety and depression. She has other health issues including endometriosis and asthma. She has previously attempted suicide. She would be highly distressed if [the applicant] departs Australia to likely face real and serious harm. If Ms [B] leaves Australia with [the applicant] then she would be leaving behind her other family members in Australia, her treating health professionals, her caring responsibilities for her own mother and her own life would be in danger. • Ms [B] is the sole carer for her mother as other relatives are unable to do so due to their own medical issues. Ms [B]'s mother … has a range of health issues that require Ms [B] to care for her. If [the applicant] is forced to leave Australia then Ms [B]'s wellbeing will be compromised and "her suicidality will worsen". Her ability to care for [her mother] will be compromised, causing serious, ongoing and irreversible harm and continuing hardship to an Australian family. Ms [B]'s health situation therefore constitutes a unique or exceptional circumstance. 18 The departmental minute stated that the claim about the applicant's relationship with Ms B "falls outside of the section 48B guidelines as the claim does not engage Australia's protection obligations for [the applicant]. They may present as unique or exceptional circumstances for referral to the Minister" (emphasis added). 19 The Officer determined that none of the new information raised by the request was likely to result in a finding that Australia's protection obligations were engaged. The departmental minute concluded that the "request for ministerial intervention is considered not to meet the Minister's Guidelines. Therefore the case should not be referred to the Minister for consideration under section 48B". 20 The departmental minute only referred to s 48B of the Act. It did not refer to s 46A of the Act or the s 46A Guidelines despite the fact that the applicant's request specifically sought "ministerial intervention pursuant to sections 48B and 46A(2), to lift the relevant application bars and allow [the applicant] to make an application for a visa from within Australia". 21 On 24 August 2020, the applicant was informed that the "request was assessed against the Minister's Guidelines - s48A cases and requests for s48B Ministerial intervention, however, [sic] it did not meet the Guidelines". 22 At the hearing and in the absence of any objection from the applicant, the Minister explained why the s 46A referral request was not expressly addressed in the departmental minute. The Court was informed that the Department has a policy which provides that it is unnecessary to consider the s 46A Guidelines where an applicant is an "unauthorised maritime arrival" and does not satisfy the s 48B Guidelines. The reason for this, it was explained, is that an applicant cannot apply for a protection visa if he or she does not meet the s 48B Guidelines because, as noted above, s 48B of the Act prohibits a person who is an unauthorised maritime arrival from applying for a visa while in Australia. The Minister contended that if the Minister does not lift the bar under s 48B, it is unnecessary to consider lifting the bar under s 46A because the applicant could not apply for a visa regardless of the outcome under the s 46A Guidelines. The Minister asserted that the Officer had applied that policy and determined not to consider the s 46A Guidelines.

The impugned decision and grounds of review 23 The applicant's originating application refers to "the determination of the respondent's departmental officer … made on 24 August 2020 not to refer the applicant's request for intervention to the respondent". During argument it became clear that the applicant did not challenge the adequacy of the assessment under the s 48B Guidelines. The decision of the Officer not to refer to the Minister the s 46A referral request is the only decision of the Officer which the applicant seeks to impugn by this application. 24 The applicant relies on two grounds of review. The applicant's principal ground of review is that the impugned decision was legally unreasonable. 25 By the second ground of review the applicant contended that there had been a constructive failure by the Officer to exercise jurisdiction because the Officer did not consider other ministerial intervention guidelines required to have been considered under the terms of the s 46A Guidelines. 26 For the reasons that follow, the resolution of the first ground will also dispose of the second ground.

The first ground 27 A threshold issue under this ground is whether the impugned decision is amenable to judicial review for legal unreasonableness. 28 The impugned decision was not made pursuant to a statutory power under the Act. The Officer made the impugned decision as an exercise of non-statutory executive power pursuant to the aforementioned non-statutory instruments. In Plaintiff S10/2011, the High Court held that consideration of the aforementioned requests by officers of the Department do not attract an obligation to afford procedural fairness to the person in respect of whom the decision is made: [3] (French CJ and Kiefel J) and [100] (Gummow, Hayne, Crennan and Bell JJ). However, the applicant relies on the judgment of Robertson J in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452 in support of the contention that the decision of the Officer not to refer the applicant's request is amenable to judicial review on the grounds of legal unreasonableness. 29 In Jabbour, Robertson J said at [89], [91] and [102]: [89] It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else: see Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208 per French and Drummond JJ. This may be an example of "an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker's own criteria": Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 at 453; appeal on other grounds dismissed in Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162. … [91] In my opinion, at the level of principle the non-statutory administrative action on the part of the second respondent in this case is amenable to judicial review for legal unreasonableness. Relevantly, the nature of that administrative action is informed by the guidelines. Although those guidelines take the form of instructions to officers of the Minister's Department, that is not their only character. The instructions are promulgated and, amongst other things, set out how to make a request and how requests for Ministerial intervention will be progressed. The interests and potential rights of the applicants were affected by the administrative action. The guidelines provided a purpose and set out criteria or considerations. … [102] In my opinion, the content of any condition of reasonableness in the exercise of non-statutory power is such that judicial review is available at least on the alternative analysis in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47], that is, reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the administrative action. Because it focusses on the reasoning process of the decision-maker, this form of analysis does not depend upon the identification of statutory scope and purpose. Further, by reference to the guidelines, which as I have explained above bear on the nature of the relevant power, I accept that legal unreasonableness could be made out by reference to result: that is, the proposition 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, if made out, would sound in legal error. In this analysis the guidelines and characteristics of the power identified at [91] above perform, in the non-statutory context, a function comparable to the scope and purpose of a statutory power. 30 These passages were endorsed by Mortimer J in Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457 at [22] and CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [43]. In DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022, Perry J proceeded on the basis that the Minister formally submitted that Jabbour was incorrectly decided but there was no dispute between the parties that the decision was not plainly wrong: at [26]. In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791 at [4], O'Callaghan J questioned whether the principle in Jabbour is correct. 31 In this proceeding the Minister formally submitted that Jabbour was incorrectly decided but did not submit that it was plainly wrong. I do not regard Jabbour to be plainly wrong and will proceed on the basis that the impugned decision is amenable to review for legal unreasonableness. 32 There are two further issues which must be considered for the determination of the applicant's first ground. The first is a further threshold issue as to whether impugned decision was in fact made. The second is whether the impugned decision was tainted by legal unreasonableness. 33 For the reasons that follow I have determined that the applicant should succeed on the first issue and fail on the second issue.

Whether the impugned decision was actually made 34 The Minister submitted that the Officer did not make a decision as to whether the applicant's case should not be referred under s 46A of Act. As explained above, the Minister contended that the Officer determined on the basis of a departmental policy that it was unnecessary to consider the s 46A Guidelines because it had already been determined that the applicant did not meet the criteria for referral in the s 48B Guidelines. On this basis the Minister contended that the delegate did not make a decision in respect of whether to refer the matter under the s 46A Guidelines. The Minister contended that the matter before this Court should therefore fail on that issue. 35 The applicant contended that, although not explicit, a decision not to refer the matter under the s 46A Guidelines was impliedly made. I accept that submission. It is clear on the facts that the Officer did not refer the applicant's request for intervention pursuant to s 46A to the Minister. If the Officer applied the policy, as the Minister contended she did, it is apparent that the Officer came to the view that it was not necessary to consider the s 46A Guidelines. That determination involved an implicit rejection of the s 46A referral request. 36 For these reasons the question whether the impugned decision was in fact made should be answered in favour of the applicant.

Whether the impugned decision was legally unreasonable 37 The applicant's contention is essentially that the Officer's misapprehension of the s 46A Guidelines led to a legally unreasonable decision. The applicant contended that the Officer misapprehended the Guidelines by forming the view that there was no utility in considering the s 46A Guidelines because there was nothing therein that could justify referral to the Minister. Applying the departmental policy, the applicant contended that the Officer must have formed the view that there was no utility in considering the s 46A Guidelines and that the s 46A referral request should therefore be rejected. 38 Contrary to the view that the applicant contended that I should infer the Officer came to, the applicant contended that there was utility in the Officer considering the s 46A Guidelines because at least one part of the Guidelines supported a referral to the Minister. The applicant contended that item 5.2.2 of the s 46A Guidelines supported a referral. That item provides (emphasis added): If the Department decides that a UMA's case does not meet these guidelines, the case should not be referred to me for consideration of the exercise of my public interest power. I generally expect a UMA in these circumstances to depart Australia. If a UMA's circumstances do not meet these guidelines, but their cases raises unique and exceptional circumstances, it should be referred for consideration against my other ministerial intervention guidelines in accordance with guidance in PAM3: Act - Compliance and case resolution - Minister's powers - Minister's detention intervention power or Pam 3: Act - Ministerial powers - Minister's guidelines on ministerial powers (s 345, s 351, s 391, s 417, s 454 and s 501J). Examples of unique or exceptional circumstances may include, but are not limited to, strong compassionate circumstances involving an Australian family unit or children, or intractable barriers to the person's removal. 39 The applicant submitted that there was a possibility that the circumstances in relation to Ms B were unique and exceptional within the meaning of item 5.2.2 of the s 46A Guidelines. As noted above, the Officer explicitly adverted to such a possibility in the departmental minute. It was there observed that the relationship with Ms B "may present as unique or exceptional circumstances for referral to the Minister". 40 Accordingly, the applicant submitted that, contrary to the conclusion of the Officer, there was utility in considering the s 46A Guidelines because, pursuant to item 5.2.2, in circumstances where the Officer may have come to the view that there were unique and exceptional circumstances, the matter could have been referred for consideration against the ministerial intervention guidelines in relation to s 501J of the Act. The applicant accepted that ss 345, 351, 391, 417 and 454 of the Act were not applicable to him. Put simply, the applicant submitted that where a referral was not made for the Minister to exercise his power under s 46A(2), the s 46A Guidelines still provided that the matter could be referred to the Minister if the applicant's case raised "unique and exceptional circumstances" such that the Minister might consider exercising the power under s 501J of the Act. 41 The Minister submitted that the impugned decision was not unreasonable because, in the circumstances applicable to the applicant, there was no capacity for the Minister to exercise power under s 501J. If the Minister's submission in respect of s 501J of the Act is correct, then the applicant's submission that the impugned decision was unreasonable must fail. If it were not open to the Minister to exercise the power under s 501J in respect of the applicant, then the Officer's conclusion that there was no utility in considering the s 46A Guidelines would be correct. No question of unreasonableness or illogicality could arise because the Officer's assessment would be an accurate appraisal of the statutory scheme. 42 Presuming in the applicant's favour that the impugned decision was made and was made for the reason that the Officer concluded that there was no utility in giving consideration to the s 46A Guidelines, in my view and for the reasons that follow, the Officer was correct to so conclude. In particular, a referral to the Minister pursuant to Item 5.2.2 of the s 46A Guidelines for the Minister to consider exercising the power under s 501J of the Act would have been inutile because the applicant's circumstances are incapable of engaging that power. That conclusion may not be the only available basis but in my view it provides a sufficient basis for rejecting the proposition that the impugned decision is legally unreasonable.

Interpretation of s 501J of the Act 43 Section 501J of the Act relevantly provides: 501J Refusal or cancellation of protection visa - Minister may substitute more favourable decision (1) If the Minister thinks that it is in the public interest to do so, the Minister may set aside an AAT protection visa decision and substitute another decision that is more favourable to the applicant in the review, whether or not the Administrative Appeals Tribunal had the power to make that other decision. (2) For the purposes of this section, an AAT protection visa decision is a decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa. … 44 The applicant contended that the utility in the referral of his case to the Minister was that the Minister could consider exercising the power under s 501J to set aside the IAA Decision. It is not in contest that the IAA Decision was the decision in relation to a protection visa. What was in dispute was whether the IAA Decision was "an AAT protection visa decision" within the meaning of s 501J. 45 The applicant contended that the IAA Decision was a decision of the AAT because, by reason of s 473JA of the Act, the IAA is "established within the Migration and Refugee Division" of the AAT. To that end the applicant also observed that under s 473BB the "Division head" of the IAA is defined as the head of the Migration and Refugee Division of the AAT and that the President of the AAT and the Division head are responsible for the operation and administration of the IAA under s 473JB. Further, under s 17A of the Administrative Appeals Tribunal Act 1975 (Cth), the AAT is to "exercise powers conferred on it in the following Divisions" which relevantly includes the Migration and Refugee Division. It followed, the applicant said, that as a part of that Migration and Refugee Division the IAA exercised a power of the AAT. 46 The Minister contended that the reference made to the AAT in s 501J is not an intended reference to the IAA and that therefore there was no capacity for the IAA Decision to engage the substitution power in s 501J(1) and that correspondingly there was no utility in any referral to the Minister in order that the exercise of that power be considered. 47 In my view, a consideration of the legislative history together with the text and structure of the Act reveals that the Minister is correct to contend that s 501J(1) is not engaged by a decision made by the IAA. 48 Section 501J was inserted into the Act by the Migration Legislation Amendment Act (No. 6) 2001 (Cth). The explanatory memorandum accompanying the Amendment Act (No. 6) explained that s 501J "is a logical extension of the equivalent power available to the Minister under current section 417 to substitute a more favourable decision for a decision of the RRT in relation to decisions made by that tribunal". Section 501J has not been subsequently amended by any legislation since it was inserted into the Act. 49 At the time s 501J was enacted, the Refugee Review Tribunal (RRT) held the principal responsibility under Pt 7 of the Act for providing merit reviews of decisions concerning protection visas. Section 417 of the Act conferred on the Minister a similar power to substitute a more favourable decision to an applicant than a decision of the RRT made under s 415 of the Act, if the Minister considered it in the public interest to do so. A similar power was also conferred on the Minister under s 351 of the Act in respect of decisions of the Migration Review Tribunal (MRT) under Pt 5 of the Act. 50 The RRT could also refer a matter concerning a protection visa to the AAT where it considered that the decision involved an important principle or issue of general application (see now repealed s 443 of the Act). In those circumstances the Minister also had a power under s 454 of the Act to substitute a decision made by the AAT, if it was in the public interest to do so. A similar arrangement for referral to the AAT and subsequent substitution existed for the MRT (see now repealed s 381 and s 391 of the Act). 51 Applying the principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, the specific power conferred by s 454 must have been intended to exclusively deal with its subject. It follows that s 501J of the Act was not directed to permitting the Minister to substitute a decision of the AAT in relation to a protection visa made after a referral from the RRT to the AAT under s 443. That is so even though the decision would have, on its face, likely fallen within the scope of s 501J because it would have been a decision of the AAT in respect of a protection visa: see s 501J(2) of the Act above. 52 The only other decisions of the AAT to which s 501J of the Act could apply was the conferral of jurisdiction on the AAT under s 500(1) of the Act. At the time, s 500 of the Act conferred review jurisdiction on the Tribunal over the following decisions: 500 Review of decision (1) Applications may be made to the Administrative Appeals Tribunal for review of: (a) decisions of the Minister under section 200 because of circumstances specified in section 201; or (b) decisions of a delegate of the Minister under section 501; or (c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2); other than decisions to which a certificate under section 502 applies. 53 Section 501 of the Act, to which s 500(1) referred, concerned the refusal or cancellation of a visa (including a protection visa) if the applicant did not pass the character test. Section 200 concerned the deportation of non-citizens. It can be seen that, when enacted, the terms of s 501J(2) readily embraced the decisions referred to in s 500(1)(c) of the Act and those decisions referred to by s 500(1)(b) concerning protection visas. That proposition applies with equal force to the terms of s 500(1) of the Act as it stands today with the added observation that decisions referred to by the s 500(1)(ba) concerning protection visas would also be applicable. 54 Nevertheless, it must be accepted that s 501J was framed more broadly than were ss 351, 391, 417 or 454. Sections 351 and 417 specified the power under which a decision must be made before the Minister could substitute a more favourable decision. Before their repeal s 391 and s 454 specifically applied to decisions reviewed by the AAT that would otherwise be reviewed by the MRT or the RRT. By contrast s 501J applied and continues to apply to a "decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa" (emphasis added). Those words could on their face apply to almost any decision of the AAT concerning a protection visa. 55 It is not entirely clear why s 501J(2) did not adopt a similar caveat specifying the power under which a substituted decision must be made (as in s 351 and s 417 of the Act) or providing for an otherwise confined definition (as in s 391 and s 454 of the Act). Instead s 501J of the Act adopts the open-textured phrase "decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa". As noted above, that definition could on its face apply to decisions of the RRT on protection visa that had been referred to the AAT in accordance with the Act. 56 One possibility is that the compartmentalised structure of the Act itself was thought to provide an appropriate guide to limit the application of the substitution power under s 501J. Just as decisions by the MRT and the RRT under Pt 5 and Pt 7 of the Act could be respectively substituted under s 351 and s 417 of the Act, so too could decisions of the AAT under Pt 9 of the Act be substituted under s 501J. In each case, a power of ministerial substitution followed the grant of jurisdiction to each of the aforementioned administrative review bodies. Moreover, each grant of jurisdiction and power of substitution occurred within the same Part of the Act. Sections 391 and 454 of the Act adopted a similar approach but at the divisional level (see now repealed Div 8 of Pt 5 and Div 8 of Pt 7 of the Act). Accordingly, it can be seen that, at that time, the Act provided a scheme whereby, wherever there was a grant of jurisdiction to an administrative review body, the Minister was provided with a coordinate power to substitute a more favourable decision if he or she considered it in the public interest to do so. 57 Schedule 4 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amendment Act 2014) established the IAA by inserting Pt 7AA into the Act. Pt 7AA of the Act provides for a separate stream of review in the Act for particular decisions in addition to the existing streams of review conducted by the MRT (Pt 5), the RRT (Pt 7) and the AAT (Pt 9). 58 The separate stream of review conducted by the IAA applied, and continues to apply, to a "fast track reviewable decision". These decisions largely comprise refusals of protection visa applications of persons who fall within meaning of "fast track applicant", which broadly speaking is a person who is an "unauthorised maritime arrival" who entered Australia on or after 13 August 2012 but before 1 January 2014: see s 5(1) and s 473BB of the Act. As is well known, merits review by the IAA under Pt 7AA of the Act is conducted on the papers and subject to an attenuated obligation to afford procedural fairness: see s 473DA and s 473DB. 59 For present purposes it is significant to observe that Parliament did not confer on the Minister a power to substitute a more favourable decision to an applicant than a decision of the IAA made under Pt 7AA of the Act. Nor could the Minister substitute a decision of the IAA under any of the other aforementioned powers of substitution. The IAA was initially "established within" the RRT under s 473JA. Section 501J was therefore inapplicable because such a decision could, on no construction, answer the description of a decision of the AAT. Nor could the power of the Minister to substitute a decision of the RRT under s 417 apply to a decision of IAA because that power was limited to decisions made by the RRT under s 415 of the Act. The IAA's power to make review decisions is a power conferred by s 473CC of the Act. It was not open for a decision of the IAA to be subject to substitution on the basis that the IAA was "established within" the RRT. 60 Following the establishment of the IAA, Parliament subsequently passed the Tribunals Amalgamation Act 2015 (Cth). The Amalgamation Act amalgamated the RRT and the MRT into the AAT. Section 473JA of the Act was amended such that the IAA is "established within the Migration and Refugee Division" of the AAT instead of the now defunct RRT. 61 The powers of substitution that were previously conferred over decisions of the RRT and the MRT now apply to decisions of the AAT: see s 351 and s 417 of the Act. However, both s 351 and s 417 still only confer a power of substitution over decisions made under s 349 and s 415, respectively. The powers of RRT and MRT to refer a decision to the AAT and Minister's power of substitution over such a decision were repealed by the Amalgamation Act. It was presumably unnecessary for the AAT to refer a decision to itself. 62 However, aspects of the previously existing structure subsist under the current regime. Decisions reviewed under Pt 5 of the Act, formerly determined by the MRT, are now reviewed by the Migration and Refugee Division of the AAT: s 336N. Decisions reviewed under Pt 7 of the Act, formerly determined by the RRT, are now reviewed by the Migration and Refugee Division: s 409. Decisions reviewed under Pt 7AA continue to be reviewed by the IAA, albeit now established within the Migration and Refugee Division of the AAT. Finally, certain other decisions under the Act are reviewed by the General Division of the AAT: see s 336M and s 408 of the Act. Those decisions include, inter alia, decisions relating to deportation, protection visas and the refusal or cancellation of visas on character grounds. For present purposes, although it is not made explicit in the Act, those categories conform to the decisions over which the AAT has jurisdiction pursuant to s 500(1) of the Act. 63 Accordingly, it may be seen that decisions under Pt 5 and Pt 7 are now dealt with by the Migration and Refugee Division of the AAT; decisions under Pt 7AA continue to be dealt with by the IAA (although now established within the Migration and Refugee Division of the AAT); and in so far as Pt 9 of the Act deals with the review of decisions of the Minister or a delegate of the Minister, those decisions continue to be dealt with by the AAT in what s 336M and s 408 refer to as its "General Division". 64 The structure of the coordinated powers of substitution also subsists despite the changes to the statutory scheme. The Minister continues to have a power to substitute Pt 5 decisions under s 351, Pt 7 decisions under s 417 and decisions of the AAT under s 500(1) concerning protection visas under s 501J in Pt 9 of the Act. As was previously the case, the Act did not, and does not, provide for a specific power of substitution over decisions of the IAA under Pt 7AA. 65 The principle in Anthony Hordern, referred to at [51] above, applies with equal force to s 417 and s 501J of the Act. A decision made under s 415 in Pt 7 of the Act is a decision of the AAT concerning a protection visa and would therefore fall within the literal ambit of s 501J. However, the power under s 417 is specific to decisions made under s 415. Applying Anthony Hordern, it follows that s 417 was exclusively intended to deal with decisions made under s 415 and that s 501J would not be engaged. 66 There are three considerations which support the construction that when s 501J refers to an AAT decision it does not intend to include a decision of the IAA. First, the structure of the Act discloses a statutory scheme wherein a power of review found in a particular Part of the Act is followed by a power of substitution conferred on the Minister in that Part, where a power of substitution is intended. 67 Second, since its enactment and despite its wide terms, s 501J has not engaged all decisions made by the AAT in relation to protection visas (see the discussion at [49]-[51] and [65] above). 68 Third, when Parliament established the IAA under Pt 7AA of the Act, it did not provide for a ministerial power of substitution over its decisions. Nor could any other power of substitution under the Act apply to a decision of the IAA. The omission of such a power was consistent with the evident purpose of Pt 7AA in providing curtailed rights of review to certain applicants. Nothing in the Amalgamation Act disclosed legislative intent to alter that state of affairs. To the contrary the amendments contained in the Amalgamation Act were directed to the orderly transition of the RRT and the MRT into the Migration and Refugee Division of the AAT. The Amalgamation Act does not disclose an intention to alter the substantive powers conferred on the Minister in respect of substitution. 69 These observations lead to the conclusion that, at least for some purposes, the Act intends to maintain a semantic distinction between a decision of the IAA and a decision of the AAT. On the basis of all those observations, it seems clear that a decision of the IAA was not intended to constitute a "decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa" (s 501J(2)) despite the IAA being "established within" the AAT (s 473JA). 70 That conclusion is further supported by provisions of the Act which draw a textual distinction between the AAT and IAA. For instance, following the amendments under the Amalgamation Act, s 103 of the Act reads: 103 Bogus documents not to be given etc. A non‑citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the [AAT] performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided. Similar distinctions between the AAT and the IAA appear at ss 99, 261AKD(2)(c), 271(4) and 336E(2)(f) of the Act. Those textual references confirm the construction suggested by the structure and legislative history of the statutory scheme in which the IAA is not regarded as being the AAT for the purpose of s 501J of the Act. 71 It follows that the decision of the Officer not to refer the s 46A referral request was not legally unreasonable. The approach of the Officer was consistent with the operation of the statutory scheme. There was no utility in considering the s 46A Guidelines because s 501J of the Act was not applicable to a decision of the IAA. For these reasons, the applicant must fail on the first ground.

The Minister's second argument 72 The Minister also relied on a second argument in respect of the first ground. The Minister contended that it was not legally unreasonable to conclude that there was no utility in considering the s 46A Guidelines in circumstances where the applicant did not make an application to the Minister to intervene under s 501J of the Act. That was because the Officer was entitled to proceed on the view that the applicant only sought an opportunity to make another protection visa application. 73 It is not strictly necessary to address this argument. I have already concluded that the decision of the Officer was not tainted by legal unreasonableness. In the event that I am wrong about the interpretation of s 501J, I will briefly state why I reject the Minister's second argument. 74 There are two problems with the Minister's argument. First, the applicant's request expressly referred to the prospect of the Minister intervening under s 501J in accordance with the s 46A Guidelines. Second, the departmental guidelines for the exercise of s 501J state that a referral may be made to the Minister to exercise the s 501J power on the Department's own motion without any such a request having been made by an applicant.

The Second Ground 75 The resolution of the first ground also disposes of the second ground. This ground was not well developed in the oral or written submissions before the Court. By the second ground the applicant contended that there had been a constructive failure of jurisdiction by reason of the failure to consider the other ministerial intervention guidelines required by the s 46A Guidelines. 76 The applicant agreed that none of the powers of ministerial intervention referred to at item 5.2.2 of the s 46A Guidelines could apply to him except s 501J of the Act. The foregoing reasons demonstrate s 501J of the Act was in fact not applicable to the applicant either. Accordingly, regardless of the presence of unique and exceptional circumstances, none of the powers referred to above could have applied to the applicant. It follows that there was no constructive failure to exercise jurisdiction or that any such failure was immaterial.

Conclusion 77 For the reasons stated, the applicant has failed to demonstrate that the decision of the Officer entailed jurisdictional error. Accordingly, the application should be dismissed with costs. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg.