2.6 Fourth Issue: Do the rules of procedural fairness apply to the ITOA process?
66 Insofar as the non-compellable discretionary powers in ss 48B, 195A and 417 are concerned, it is clear that each potentially involves a two-stage process:
(a) a decision whether to consider exercising the power; and
(b) if an affirmative decision is made, a consideration of how the power should be exercised.
67 This is apparent from reflection upon the concepts involved and is also recognised in the Act itself. For example, s 474(7) (above) refers not only to decisions not to exercise these kinds of powers but also to decisions not to consider exercising them.
68 The High Court has concluded that where a decision of the kind referred to in [66(b)] is concerned then the rules of procedural fairness apply to any process leading to that decision: M61 at 353-354 [78]. Further those rights may be vindicated by declaration although not by certiorari or mandamus: M61 at 358 [99] and 359-360 [101]-[103].
69 At first blush, the Court appeared to reach the opposite conclusion in S10. However, a critical factual difference between the two cases concerned the points at which the Minister had arrived in the exercise of his powers under ss 48B, 195A and 417. In M61 the Court found as a fact that the Minister had progressed from merely considering whether to exercise these powers and was now engaged in their actual exercise. This was made clear at 349 [66]:
'66 In these cases, that foundation is revealed by recognising the significance of the second matter that has been identified: that the inquiries that are made for the purposes of both the RSA and IMR processes are made in consequence of the decision announced in July 2008. There would otherwise appear to be an irreducible tension between the exercise of a statutory power to detain in a way that prolongs detention, because inquiries are being made, and those inquiries having no statutory foundation. This tension does not arise if the decision to establish and implement the RSA and IMR procedures, announced by the Minister, is understood not just as a direction to provide the Minister with advice about whether power under s 46A or s 195A can or should be exercised, but as a decision by the Minister to consider whether to exercise either of those powers in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations.'
[Emphasis added]
70 This then formed the foundation for the conclusion in M61 at 353-354 [78] that once the Minister had decided to enliven the powers, then the rules of procedural fairness attached:
'78 The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant's liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as "conditioned on the observance of the principles of natural justice" [Kioa v West (1985) 159 CLR 550 at 615 per Brennan J]. Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.'
71 The situation is quite otherwise where the Minister has not yet reached the first stage. Before any decision to consider whether to exercise the powers, there is no right or interest which an applicant has to which an obligation of procedural fairness may attach. In S10 at 652-653 [43]-[44] French CJ and Kiefel J explained this aspect of M61 and then went on to demonstrate why S10 was different at 353 [45]-[46]:
'45 As the Minister and the Secretary pointed out, there has not been, in relation to the cases presently before the Court, any ministerial announcement of the kind which applied to the assessment and review processes considered in the Offshore Processing Case. The function of the guidelines in issue in these cases was significantly different from the function of the assessment and review procedures under consideration in the Offshore Processing Case [i.e. M61]. Those were procedures which were undertaken as an incident of the exercise of a statutory power which the Minister had effectively announced was to be undertaken, namely, the power to consider whether to exercise the substantive powers conferred by ss 46A and 195A of the Act.
46 In this case the Minister has taken no statutory step equivalent to that taken in the Offshore Processing Case. It was submitted for the Minister and the Secretary that, properly understood, each of the guidelines in this case does no more than facilitate the provision of advice to the Minister in particular cases and otherwise operate as a screening mechanism in relation to any requests which the Minister has decided are not to be brought to his or her attention. The issue of the guidelines itself did not involve a decision on the part of the Minister, acting under the relevant section, to consider the exercise of the power conferred by it. That submission should be accepted.'
72 The joint judgment of Gummow, Hayne, Crennan and Bell JJ did not bring this out directly. Having recited a number of qualities of the powers in question their Honours recorded their conclusion at 668 [100] as follows:
'100 The cumulative significance of the matters referred to above in (i)-(ix) is to disclose a situation akin to that identified by Brennan J in South Australia v O'Shea, namely where a senior official standing at the peak of the administration of the statute is not required to give an opportunity for a hearing in every case affecting an individual who has had an opportunity of a merits review in the course of the administrative process. Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness. In particular, there was no requirement to provide to the plaintiffs the opportunities to be heard which they assert in their submissions. The use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister (as personal, non-compellable, "public interest" powers), and of the availability of access to the exercise of those powers only to persons who have sought or could have sought, but have not established their right to, a visa is of determinative significance. It reveals the "necessary intendment" referred to in the Offshore Processing Case that the provisions are not attended by a requirement for the observance of procedural fairness.'
[Emphasis added and references omitted]
73 We do not, by any means, think their Honours were overruling M61; they were merely highlighting the same factual matter to which French CJ and Kiefel J had referred. Heydon J explained the same point at 673-674 [120]-[121]. Indeed, as indicated in the last sentence of [100] quoted above, their Honours applied and distinguished M61.
74 The Minister submitted that this was a case governed by S10, whilst SZSSJ argued it was covered by M61.
75 SZSSJ's submission is to be preferred. What is involved is a factual question. In this case the Court below did not attempt any analysis of the decision, or rather, the nature and stage of the process that it was reviewing and therefore did not ascertain that its inquiry was related, at least insofar as declaratory relief was being sought, to conduct preparatory to decisions by the Minister involving ss 48B, 195A and 417: SZSSJ v Minister for Immigration & Ors (No.2) [2015] FCCA 1148 at [19]-[23]. This was despite the Full Court having explained that matter in allowing the appeal from the Federal Circuit Court's decision in SZSSJ's earlier case. Not having identified the question of what the decision actually under review was, the Federal Circuit Court failed to appreciate the significance of M61 and S10 and necessarily, therefore, the distinction between them. Not appreciating this, it failed to make the critical factual finding which needed to be made, viz, whether the Minister was merely considering whether to exercise these powers (S10) or was in fact in the process of considering whether to exercise them (M61). It is necessary, therefore, for this Court to make that finding. The relevant evidence is:
the Secretary of the Department wrote to SZSSJ on 12 March 2014 and told him that his claims arising from the Data Breach would be considered as part of its normal processes;
whatever those processes were, they were supervened on 30 September 2014 by the ITOA process;
SZSSJ was informed by letter dated 1 October 2014 that the purpose of the ITOA was 'to assess whether the circumstances of your case engage Australia's non-refoulement obligations';
the ITOA process was governed by a detailed instructional guideline called Procedures Advice Manual 3 ('PAM 3') which was entitled 'Refugee and Humanitarian International Treaties Obligations Assessments'; and
there were 9,258 protection visa applicants affected directly by the Data Breach.
76 There are two possible characterisations of these facts:
(a) the Minister had decided to consider whether to exercise the powers in ss 48B, 195A and 417 in relation to SZSSJ and the ITOA was being conducted by the Department to assist him in that process (M61 at 349 [66]); or
(b) the Minister had not decided to consider, at that stage, whether to exercise the dispensing powers or not. On this view, it is not clear why the ITOA process is being conducted or on whose instructions or how the continued immigration detention of persons involved in that process is lawful.
77 It is useful to start with the PAM3 manual. The High Court closely examined similar manuals to PAM3 in M61 to determine which of these was the correct characterisation in the case before it. In the present case the relevant portion of PAM 3 is Section 10.1 which describes the uses to which ITOA may be put:
'10.1 Informing decision making
The findings of the ITOA may be used to inform decision making when, for example:
• considering whether to cancel a Protection visa under s 109, s 116, s 128 or s 140(2) of the Act, or to revoke a cancellation under s 131
or
• considering whether to refuse or cancel a Protection visa under s 501 of the Act
or
• advising the Minister about the possible exercise of ministerial intervention powers
or
• considering the person's availability for removal.
However, as explained in section 3 What is an ITOA, an officer conducting a subsequent assessment of whether a person engages Australia's non-refoulement obligations, for example, through the protection visa process, is not bound by the findings of the ITOA.
If the assessing officer finds that non-refoulement obligations are engaged, the appropriate option for status resolution is to be decided on a case by case basis by the officer who requested the ITOA. If a decision or other action following the assessment results in refusal or cancellation of a visa, options for subsequently resolving the person's status may include:
• notifying the person of their options in relation to applying for a Protection visa (if there are no application bars applicable in their case)
or
• referring the case to the Ministerial Intervention Unit (MIU) for assessment against the s 48B guidelines for referral to the Minister, or referring the case to Complex Case and Human Trafficking Section (via the complex.case.resolution.section@immi.gov.au mailbox) for assessment against the Guidelines on Minister's detention intervention power (s 195A of the Migration Act) in PAM3: Act - Compliance and Case Resolution - Case resolution - Minister's powers - Minister's detention intervention power for referral to the Minister
or
• considering whether to refer the case to the Minister for a decision under one of the other ministerial intervention powers - for details of other powers that may be used and guidelines for assessing whether to refer cases to the Minister for consideration under these powers, see PAM3: Act - Ministerial powers - Minister's guidelines on ministerial powers (s 345, s 351, s 417, s 454 and s 501J)
or
• considering other appropriate visa options such as a Temporary Humanitarian Stay (UJ-449) visa or a Temporary Humanitarian Concern (UO-786) visa.
Officers seeking to resolve the status of a person who has been found to engage Australia's non-refoulement obligations but whose visa has been refused or cancelled should consult with their supervisor if they are unsure how to proceed.
If the officer who conducted the ITOA found that Australia's non-refoulement obligations are not engaged and there are no other matters before the department, such as an unfinalised visa application, consideration should be given to progressing the person's removal from Australia.'
78 Read in isolation this reveals a process which is likely to be anterior to any exercise by the Minister of a dispensing power. This may flow from the third bullet point at the start and it certainly follows from the last paragraph. Plainly enough, the ITOA process is something which it is intended may start outside the Minister's office and about which he may never be personally aware if the conclusion of the ITOA is that non-refoulement obligations are not owed. Whether such an arrangement can truly work that way is a matter we discuss below.
79 In any event, it is a mistake to view the PAM3 in isolation. The context in this case includes two other matters, one specific and one general.
80 The specific matter is that in this case the Secretary of the Department has written to the 9,258 people affected by the Data Breach to tell them that their position will be reviewed. Given the magnitude of the event from an administrative perspective, the Secretary's decision, as stated in his letter of 12 March 2014, to have the Department assess any implications for each of those people personally 'as part of its normal processes', the very considerable budgetary expense in conducting 9,258 such reviews, their continuing detention for a period of six months until the making of the decision to use an ITOA process to conduct those reviews, the significance of Australia's international obligations in respect of the 9,258 persons affected by the Data Breach and the ITOA processes which were then instigated, we consider it unlikely that the Minister is not personally aware of the Data Breach and the processes contemplated in the Secretary's 12 March 2014 letter.
81 This, then, is not one of those cases where an ITOA has been commenced under PAM 3 in circumstances of which the Minister is personally ignorant.
82 Granted that the Minister is personally aware of the ITOAs, it seems an unavoidable inference that he has already decided to consider these 9,258 matters under his dispensing powers. If he has not decided to consider the non-refoulement claims, why has he suffered the ITOA process to be carried out on his behalf? Further, given that, in a case such as the present, Australia's international obligations relating to non-refoulement can only be given expression under domestic law through the exercise of the Minster's own personal powers in ss 48B, 195A and 417, we would hesitate to conclude that the Minister has put in place a structure in which persons making claims relating to non-refoulement were not given the opportunity to have the only officer of the Commonwealth who can vindicate those claims under Australian law consider them. It seems to us that such a state of affairs would be a breach by Australia of its non-refoulement obligations.
83 A second, more general, consideration supports the same conclusion. The dispensing powers are made personal to the Minister. Yet the Minister's argument was that somehow the ITOA process appears directed at an endpoint in which the Minister is not to be informed of negative ITOA outcomes with the hoped for consequence that no refusal decision is ever made by him which could render the ITOA process reviewable. This administrative vision rests on the idea that decision-making by a Department can be juristically separated from decision-making by its Minster. That vision is inconsistent, however, with the model of ministerial responsibility upon which Chapter II of the Constitution rests. Section 64 of the Constitution provides:
'64 Ministers of State
The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.
Ministers to sit in Parliament
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.'
84 This reflects the orthodoxy that a Minister administers his or her Department and is responsible to the Parliament for it. Underlying the Minister's submissions in this case is an unconstitutional aspiration that administrative activity can take place within a Minister's Department for which the Minister is not to be held responsible. This is not correct. If, in any given case, an officer commences an ITOA it will be because some administrative procedure or guideline within the Department requires that it should be conducted or because the officer has been lawfully directed by a superior to do so. We do not accept, therefore, that ITOAs were commenced within the Department without authority ultimately deriving from the Minister.
85 Viewed through that wider lens, it will be seen that, in the circumstances of these appeals, there can be no such thing as an ITOA which has been prepared to assist the Minister in considering whether to lift the bar under his discretionary powers which does not proceed from an exercise of his own authority. The more this must be so because of the impact of the conduct of the ITOAs on the personal liberty of those who continue to be held in immigration detention in order that that process can be completed. If an ITOA is being conducted, it is because lawful instructions have been given that it should be. That state of affairs both implies, but also reveals, a decision by the Minister that the non-refoulement question in SZSSJ's case is to be examined, that is to say, that the second stage identified in M61 has been reached: Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 232 [27]-[29].
86 Indeed, it is difficult to discern how the Minister would be able to remain at the first stage in a non-refoulement case without, first, breaching Australia's international obligations to assess claims of this kind and, secondly, at the very least in an accessorial capacity the imperative command of s 198. He either considers the claims, so that international law is complied with (and the ITOA process is reviewable because he has arrived at the second stage), or the decision is not reviewable (because he has not considered the claim at all), in which case Australia will be in breach of its international legal obligation to assess non-refoulement claims and every officer who detains one of the 9,258 persons affected by the Data Breach does so in contravention of s 198. Unless the Minister is personally willing to swear that, as the only official in the country with the power to consider SZSSJ's non-refoulement claims, he is not considering doing so and that Departmental officials apparently doing so under the ITOA process are doing so without his authority, it is impossible to conclude that he has not arrived at the second stage.
87 For these reasons then this is a case where the Minister has arrived at the second stage of the process of exercising his dispensing powers. It follows that this is a case governed by M61 rather than S10 and that the rules of procedural fairness, therefore, apply to the ITOA process.