SZRFH v Minister for Immigration and Border Protection

The Migration Act 10 The initial application made to the Minister in December 2012 to permit SZRFH to make a valid application for a visa arose because s 46A(1) of the Migration Act 1958 (Cth) provided that a person who arrived as an offshore entry person could not make a valid application for a visa. Section 46A(2) vested power in the Minister to permit a valid application to be made. Sections 46A(1) and (2) as at December 2012 relevantly provided as follows: Visa applications by offshore entry persons (1) An application for a visa is not a valid application if it is made by an offshore entry person who: (a) is in Australia; and (b) is an unlawful non-citizen. (2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination. While section 46A has since been amended, it remains in substantially similar terms for present purposes. 11 An exercise of power under s 46A(2) has been described as "lift[ing] the bar under s 46A(1)": CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434 at [1] per McKerracher J. 12 Section 46A has attracted detailed consideration by the High Court. That consideration exposes the necessity to consider: the structure of s 46A; and the facts of each individual case. Dependent upon what decision has in fact been made by the Minister are consequences that impact upon both the jurisdiction of the Federal Circuit Court and the obligation to afford procedural fairness. 13 With reference to s 46A(2) in Plaintiff M61/2010E v Commonwealth [2010] HCA 41, (2010) 243 CLR 319 at 350 ("Offshore Processing Case"), French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ observed: [70] Exercise of the powers given by ss 46A and 195A is constituted by two distinct steps: first, the decision to consider exercising the power to lift the bar or grant a visa and secondly, the decision whether to lift the bar or grant a visa. The Minister is not obliged to take either step. Sections 46A(7) and 195A(4) expressly provide that the Minister does not have a duty to consider whether to exercise the relevant power. And ss 46A(2) and (3) and 195A(2) and (5) make plain that it is for the Minister personally to decide whether to exercise the relevant power. Section 195A confers power on the Minister to grant a visa to a person who is in detention. Section 46A was also considered in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31, (2012) 246 CLR 636 ("Plaintiff S10"). 14 In Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29, (2016) 259 CLR 180 at 200 ("SZSSJ"), French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ there summarised as follows the principles to be drawn from the Offshore Processing Case and Plaintiff S10: [52] Three principles are to be drawn from Plaintiff M61/2010E and Plaintiff S10/2011 concerning the construction and relevant application of ss 48B, 195A and 417 of the Act. [53] First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness. [54] Secondly, processes undertaken by the Department to assist in the Minister's consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister's consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness. [55] Thirdly, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact. 15 Their Honours went on to address the question of the jurisdiction being exercised by the Federal Circuit Court as follows (at 203): [66] Subject to s 476(2)(d), the claims to declaratory and injunctive relief made by SZSSJ and SZTZI engaged the jurisdiction of the Federal Circuit Court under s 476(1). That was because, the Minister having made a procedural decision to consider whether to grant a visa or to lift the bar in the exercise of one or other of the powers conferred by ss 48B, 195A and 417 of the Act, the conduct of an ITOA by an officer of the Department met the definition of a "privative clause decision" in s 474(2). The conduct of the officer met that definition by reason of the extended definition of "decision" in s 474(3)(h). The conduct of an ITOA by an officer of the Department is conduct under the Act preparatory to the making of a substantive decision by the Minister - specifically, it is the holding of an inquiry or investigation. Section 474(3)(h), it may be noted, provides that a reference to a "decision" includes "conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation". 16 While these observations are directed at ss 48B, 195A and 417 of the Migration Act, they are also apposite to s 46A. 17 If the Minister has made a "personal procedural decision" to consider whether to make a substantive decision, it was accepted by the Minister that the consequence was that: the requirements of procedural fairness applied to the assessment process undertaken by the Department to assist the Minister in making the substantive decision; and the Federal Circuit Court had jurisdiction to review the conduct of the Department that is preparatory to the making of a substantive decision by the Minister. 18 Sections 197C and 198 of the Migration Act, being the provisions referred to in the Ground of Appeal, are found within Pt 2 Div 8 of the Migration Act. That Division is headed: "Removal of unlawful non-citizens etc". 19 Section 197C provides as follows: Australia's non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198 (1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. (2) An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen. Section 197C was introduced into the Migration Act with effect from 16 December 2014. Section 198 provides for the removal from Australia of unlawful non-citizens.

A denial of procedural fairness 20 The argument sought to be advanced by the Ground of Appeal as set forth in the Notice of Appeal is difficult to understand. 21 It is apparent from the terms of the Ground of Appeal and the particulars provided, however, that the argument is in some way related to: a question as to whether "the ITOA process was undertaken as a preparatory process to the Minister's power to deport"; and paras [38] to [41] of the reasons of the primary Judge. The reference in the Particular to the Ground of Appeal to the assessment process being undertaken "as a preparatory process" would appear to be a reference to the analysis by the High Court in SZSSJ and s 474(3)(h) of the Migration Act. 22 Paragraphs [38] to [41] of the reasons for decision of the primary Judge are expressed as follows: [38] From these statements it is open to infer, and I do infer, that the ITOA process in relation to the applicant was established to assist the Minister to discharge the obligation that arose on the exercise of the power conferred by s.198 of the Act to consider Australia's non-refoulement obligations before removing an unlawful non-citizen from Australia. That, in effect, is what counsel for the Minister submitted. He submitted that the ITOA process was undertaken as a preparatory process to the Minister's power to deport. I am not satisfied, however, that that submission is correct. [39] After the Department sent the applicant the letter dated 30 September 2014 s.197C was introduced into the Act with effect from 16 December 2014 by item 2 of Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act). Section 197C provides as follows: … [40] Although the ITOA process in relation to the applicant commenced before s.197C of the Act came into effect, the process continued after s.197C came into effect and ended on 22 October 2015 when the Assessor made his decision. In these circumstances, it is not apparent how it could be contended that, at least after 16 December 2014, the ITOA process in relation to the applicant was undertaken for the purpose of assisting the Minister to discharge his obligations under s.198 of the Act given that, because of s.197C of the Act, whether or not Australia has any non-refoulement obligations has not since 16 December 2014 been relevant to the exercise of the power conferred by s.198 of the Act. [41] Because neither party made any submissions about s.197C of the Act, it is inappropriate for me to say anything further about the effect of that section on whether the Assessor was under any duty to accord the applicant procedural fairness. I will instead assume that the ITOA process, as it was applied to the applicant, was undertaken to assist the Minister discharge a statutory power or to assist the Minister in the implementation of a personal procedural decision to consider whether to make a substantive decision; and that, when undertaking that process, the Assessor came under an obligation to accord the applicant procedural fairness. 23 To the extent that the argument seeks to contend that the assessment process was in fact a "process … undertaken as a preparatory process", nothing seems to turn on whether it was or it was not. If there had been a "personal procedural decision" made by the Minister to consider whether to make a substantive decision, then there was a duty on the Assessor to afford the Appellant procedural fairness. The primary Judge went on to consider and resolve whether there was any denial of procedural fairness. As the reasons of the primary Judge make clear, he proceeded upon what he characterised as an "assum[ption]" that the Assessor was required to comply with the rules of procedural fairness (at [41]) and then went on to consider what he described to be the "Content of Assessor's duty to accord procedural fairness" (at paras [42] to [43]). It was concluded that there was no error in the manner in which the Assessor proceeded. 24 The correct characterisation of whether the primary Judge concluded that a personal procedural decision had in fact been made or was merely "assumed" to have been made arose because of the introduction of s 197C in December 2014. It would appear as though the primary Judge was questioning whether the assessment process could properly be regarded as having been undertaken (at least as from December 2014) as "preparatory" to the making of a Ministerial decision in circumstances where after that date any assessment as to non-refoulement obligations was irrelevant (by reason of s 197C) to any decision made under s 198. The primary Judge presumably was considering the relevance of s 197C to questions of both the jurisdiction being exercised by the Federal Circuit Court and the requirement to afford procedural fairness. The primary Judge implicitly resolved the former question in favour of the assessment process remaining a "decision", being a process "undertaken to assist the Minister [in the] discharge [of] a statutory power or to assist the Minister in the implementation of a personal procedural decision". Before this Court, Counsel for the Respondent Minister advanced no submission that the Federal Circuit Court lacked jurisdiction. 25 Similarly, and to the extent that the Ground of Appeal seeks to separately contend that the sequence in which the International Treaties Obligations Assessment was commenced and the subsequent coming into operation of s 197C may have impacted upon any conclusion as to whether the rules of procedural fairness applied, the argument is again without force. If there was no duty to afford procedural fairness, there is no issue. If there was a duty to afford procedural fairness, the primary Judge correctly concluded that there had been no denial of procedural fairness. No appellable error is discernible in the consideration by the primary Judge of any argument founded upon a denial of procedural fairness. 26 To the extent that the Ground of Appeal seeks to contend that in some manner ss 197C and 198 "invalidated" the assessment process - in some manner other than an asserted denial of procedural fairness - no further assistance in the resolution of that argument was provided by SZRFH. Irrespective of the manner in which the Ground of Appeal is expressed, the argument does not seem to have been advanced for resolution before the Federal Circuit Court. No submission was there made, at a point of time when SZRFH was legally represented, that the Assessor did not have power to make an assessment by reason of s 197C or that the assessment was irrelevant to the Minister's duty to remove him under s 198. 27 Although leave may be granted to rely upon an argument on appeal that was not previously advanced before a primary Judge (cf. University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ), leave to do so in the present proceeding is refused. Not only is the argument now sought to be advanced lacking in any detail such that it can be meaningfully considered, such limited meaning as can be gleaned exposes it to be an argument lacking any self-evident merit. There was, moreover, no assistance provided by the unrepresented Appellant as to how s 197C could impact upon the validity of an assessment process. The resolution of any argument should be deferred to a case in which this Court has the benefit of competing submissions. 28 The Ground of Appeal is rejected.

The initial grounds of review 29 Although the Ground of Appeal as set forth in the Notice of Appeal now invites this Court to consider an argument different from the arguments presented before the primary Judge, and a Ground that has been rejected, the arguments resolved by the primary Judge have nevertheless again been briefly revisited. 30 The first argument resolved by the primary Judge was an argument that the Assessor had failed "to make a fresh assessment in accordance with the undertaking made at the commencement of the ITOA process". For the reasons given by the primary Judge, this was an argument that was rightly rejected: [2017] FCCA 2543 at [60]. 31 The second argument resolved by the primary Judge was that the Assessor had failed "to consider each integer of the applicant's claim". That argument was supplemented by a Particular which directed attention to SZRFH's medical condition and by written submissions which directed attention to an asserted failure "to identify the accurate Particular Social Group ('PSG') applicable" to SZRFH. The primary Judge correctly rejected the argument directed to the medical condition: [2017] FCCA 2543 at [65]. The claim made in the written submissions in respect to membership of a social group raised different considerations by reason of uncertainty as to "whether the applicant expressly claimed he had a well-founded fear or [sic] persecution, or that he otherwise feared harm because he was a member of the asserted [Particular Social Group]": [2017] FCCA 2543 at [68]. The primary Judge concluded that SZRFH "did not expressly claim he feared harm because he was a member of the asserted [Particular Social Group]": [2017] FCCA 2543 at [69]. The primary Judge nevertheless went on to further conclude that he could not be "satisfied that a reasonable assessor in the position of the Assessor ought reasonably to have appreciated from the material that was before the Assessor that the applicant claimed he had a well-founded fear of persecution because he was a member of the asserted [Particular Social Group]": [2017] FCCA 2543 at [72]. In so concluding, no appellable error is discernible. 32 The third argument before the primary Judge was that the Assessor erred when "considering the applicant's membership of a particular social group". Again, some difficulty emerged because the content of the written submissions in regard to this ground did not match up with the Ground as drafted. Again no error is in any event discernible in the manner in which this argument was rejected: [2017] FCCA 2543 at [81] and [84] to [85]. 33 An additional argument raised at the hearing before the primary Judge was also correctly rejected: [2017] FCCA 2543 at [88]. That argument was founded upon an assertion that information regarding the Canadian Immigration and Refugee Board, which was referred to in the Assessor's reasons, had not been put to SZRFH for comment. An examination of the transcript, however, exposed the falsity of the assertion.

CONCLUSIONS 34 The appeal should be dismissed. 35 The arguments advanced before the primary Judge were correctly rejected. The sole Ground of Appeal sought to be raised before this Court is also rejected. 36 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent, either as taxed or agreed. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.