FEDERAL COURT OF AUSTRALIA
Jabbour v Secretary, Department of Home Affairs [2019] FCA 452
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application for review, in the form of the amended originating application for relief under s 39B of the Judiciary Act 1903 (Cth) dated 27 November 2018, be dismissed.
2. The applicants pay the respondents’ costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ROBERTSON J:
Introduction
1 On 1 February 2012 Mr Charbel Jabbour, the first applicant, applied for a subclass 457 visa with his parents and siblings listed as dependants. That application was refused on 7 March 2014 as he did not have the skills, qualifications and employment background necessary at the time he last held a substantive visa, 22 September 2007. On 12 February 2015, the former Migration Review Tribunal affirmed that decision.
2 It appears that the applicants’ family arrived in Australia on 16 October 2003 on a subclass 457 visa. On expiry of the subclass 457 visa on 22 September 2007, the family became unlawful non-citizens. They came to the attention of the Department on 23 November 2011. Mr Chadi Jabbour, the present second applicant, applied for Australian citizenship claiming that he was a permanent resident. He presented a Lebanese passport containing an Australian permanent resident visa label which the Department identified had been fraudulently obtained. Thus the family’s visas were not genuine.
3 On 5 March 2015, a letter was sent to the Minister for Immigration and Border Protection requesting the Minister exercise his public interest power under s 351 of the Migration Act 1958 (Cth). That application included the four present applicants, but also included Mr Elias Jabbour and Ms Rima Kassas, their parents.
4 Section 351 provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Administrative Appeals Tribunal under s 349 a decision that is more favourable to the applicant. That power may only be exercised by the Minister personally. If the Minister so substitutes a decision he or she is to cause to be laid before each House of the Parliament a statement that sets out the decision of the Tribunal; sets out the decision substituted by the Minister; and sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest. The Minister does not have a duty to consider whether to exercise the power under s 351(1) in respect of any decision, whether he or she is requested to do so by the applicant or by any person, or in any other circumstances. I set out s 351 at [13] below.
5 On 4 October 2017, the Assistant Minister for Immigration and Border Protection declined to intervene.
6 On 7 March 2018, the legal representatives of the four present applicants, who are siblings, again requested the Minister to exercise his power under s 351. The applicants’ parents were not included in this application.
7 On 23 March 2018, the second respondent, the Acting Assistant Director, NSW Ministerial Intervention, Department of Home Affairs, resolved not to refer to the Minister the request made on 7 March 2018. He did so by referring, in a file note which was later provided to the applicants’ representatives, to the Minister’s guidelines and saying:
The request will not be referred to the Minister because the Department is satisfied there has not been a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request and which would now present unique or exceptional circumstances.
8 The second respondent also wrote, in a separate document provided by email to the applicants’ representatives on 23 March 2018:
This request has been assessed against the Minister’s guidelines on ministerial powers (s351, s417, s501J) which describe the types of cases that should be referred to the Minister. The Minister has indicated that requests that do not meet the guidelines should not be referred.
The Minister’s guidelines describe a repeat request as a request in relation to which the Minister or another Minister (current or previous) has previously received a request to intervene in the person’s case under any of the powers covered in the guidelines. A request is a repeat request even if the earlier request or requests related to a different visa application.
The Minister’s guidelines indicate that the Minister does not wish to consider repeat requests unless the Department is satisfied that there is a significant change in circumstances which were not provided before or considered in a previous request and which present unique or exceptional circumstances as described in the guidelines.
The Department has assessed that this request does not meet the guidelines for referral to the Minister.
The Department has, therefore, finalised this request without referral.
Proceedings in this Court
9 By their amended application, the applicants relevantly seek the following relief:
1A A DECLARATION that the Second Respondent, in deciding on or about 23 March 2018 not to refer the Applicants’ request for Ministerial intervention under section 351 of the Migration Act 1958 (Cth) to the Minister for his decision whether to consider exercising his power under section 351, made a jurisdictional or other error of law in that the decision was legally unreasonable.
3. A DECLARATION that the Applicants’ request for Ministerial intervention under section 351 of the Migration Act 1958 falls within the Minister’s guidelines for intervention such that the request should be referred to the Minister for consideration according to law.
10 Their first contention is that the second respondent acted unreasonably or irrationally in that he failed to understand correctly the substance of the request or misunderstood the substance of the request in a material particular. The following particulars are relied on under the relevant ground in their application:
Particulars
a. The request for Ministerial intervention contained claims that the Fourth Applicant Najat Jabbour suffers from learning disability and would have difficulty assessing disability services if she had to resettle in Lebanon.
b. This claim in the request for Ministerial intervention was characterised by the Officer simply as challenges facing the Fourth Applicant resettling in Lebanon because of her learning disability and did not consider her ability to access disability services.
c. The Officer had accepted the opinion of the Medical Officer of the Commonwealth that Fourth Applicant may require non-medical services to assist with day to day living without assessing the claims regarding lack of access to disability services in Lebanon.
11 Their second contention is that the second respondent acted unreasonably or irrationally in that he failed to refer the request to the Minister in circumstances where no reasonable person would fail to do so, relying on the following particular:
Particulars
a. The change in circumstances presented by the Request being on behalf of the Jabbour children only (and not their parents) and the significance of the age of the Jabbour children at the time they and their parents are said to have obtained fraudulent Partner visas was a new matter not previously provided or considered, presenting unique or exceptional circumstances, such that no reasonable person would have failed to refer the Request to the Minister.
12 By reason of these matters or either of them, the applicants claimed that the second respondent’s decision was affected by jurisdictional or other legal error and they were entitled to the declarations sought.
The statutory provision
13 The relevant provision of the Migration Act is as follows:
351 Minister may substitute more favourable decision
(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
(2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
(3) The power under subsection (1) may only be exercised by the Minister personally.
(4) If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision of the Tribunal; and
(b) sets out the decision substituted by the Minister; and
(c) sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(5) A statement made under subsection (4) is not to include:
(a) the name of the applicant; or
(b) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
14 The provision was considered by the High Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636. The Minister had declined to consider exercising the relevant power. At [4], French CJ and Kiefel J said the consideration by officers of the Department of the requests by the plaintiffs for the Minister to consider exercising non-compellable powers under the Migration Act did not attract the requirements of procedural fairness. Further, the Minister was not obliged to accord procedural fairness, in the form of the so-called hearing rule, in personally considering whether to exercise the Minister’s discretion under s 351.
15 At [32] their Honours said requests, when made, did not enliven a statutory process attended by the requirements of procedural fairness. Their Honours said, at [51]:
The guidelines under consideration in the present case are directions to departmental officers about the circumstances in which requests for consideration of the exercise of the Minister’s powers may be referred to the Minister. The work done by officers, acting under the guidelines, involves the acquisition of information and categorisation of requests or cases. It 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.” There is, however, nothing about the character of the guideline processes, as an exercise of the executive power of the Commonwealth or otherwise, that attracts to them a requirement to observe procedural fairness. In the context of this case that requirement can only have significance if it conditions the exercise of the statutory powers conferred by the dispensing provisions.
16 Gummow, Hayne, Crennan and Bell JJ said, at [90]-[91]:
… The term “guidelines” is apt to mislead; their content is in the form of directions by the Minister. The first and third guidelines state as a purpose the desire of the Minister to inform departmental officers “when to refer a case to me so that I can decide whether to consider exercising such powers in the public interest”; and “to explain the circumstances in which I may wish to consider exercising my public interest powers [under s 351, s 417, s 195A as the case may be]”. The s 48B guidelines are said to be for use “when considering whether to forward to the Minister cases that the Minister may wish to consider when using the ministerial non-compellable and non-delegable power [under s 48B]”.
The terms of the guidelines provide criteria to distinguish between requests which will not be referred to the Minister and those which may be referred to the Minister for consideration whether to exercise the relevant power. By these directions the Minister has determined in advance the circumstances in which he or she wishes to be put in a position to consider exercise of the discretionary powers by the advice of department officers. It was within the competence of the Minister to do so. The effect, as the Commonwealth Solicitor-General put it in oral argument, is that the adoption of the guidelines by the Minister represents decisions by the Minister that if a case is assessed as not meeting the guidelines, the Minister does not wish to consider the exercise of the dispensing power, and if a case is assessed favourably then the Minister does wish to consider that exercise.
(Footnote omitted.)
17 At [96], their Honours accepted the submission that the extraordinary nature of the dispensation provisions, with which the cases before that Court were concerned, and their exceptional place within the scheme of the Migration Act respecting visas, provided a basis to exclude what otherwise might be an implication of procedural fairness.
18 At [118], Heydon J also concluded that in deciding whether or not to refer to the Minister requests for a favourable exercise of, amongst others, the power conferred by s 351, the Departmental officers were not obliged to afford the plaintiffs procedural fairness in conducting their inquiries: “no rights to procedural fairness exist in relation to either the Minister’s powers or to the activities of officials of the Minister’s Department in advising the Minister whether to consider to exercise those powers, or to exercise those powers.”
19 In Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180, the High Court was considering ss 48B, 195A and 417 of the Migration Act. At [47], the High Court said that in Plaintiff S10/2011 at [46], [52] and [91], members of the Court, with the possible exception only of Heydon J, interpreted the guidelines as directed to when the Department was to refer cases to the Minister in order to allow the Minister to decide whether or not to consider exercising a non-compellable power: where the Department had not referred a case to the Minister, no statutory power had been engaged; where the Department had referred a case to the Minister and the Minister had indicated that he would “not intervene”, the Minister had made a personal decision that he would not consider exercising any of the non-compellable powers.
20 It was common ground that the guidelines presently in issue shared this character.
The guidelines
21 Tendered in evidence were the Minister’s guidelines on ministerial powers, including in relation to s 351, signed on 11 March 2016 and reissued on 29 March 2016. It was common ground that those guidelines did not have statutory force.
22 It was not in contention that the request presently under consideration was a “repeat request”. Section 10.2 of the guidelines provided as follows:
… I do not wish to consider repeat requests. Where I or another Minister (current or previous) have declined to intervene or consider intervening in a case, I expect the person concerned to leave Australia.
In limited circumstances, a repeat request may be referred to me if:
• the Department is satisfied there has been a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request; and
• the Department assesses that these new, substantive issues fall within the unique or exceptional circumstances described in section 4 of these guidelines.
Otherwise the Department should reply on my behalf to the person or their authorised representative that I do not wish to consider intervening in the case.
23 Section 4 of the guidelines included the following:
4. Unique or exceptional circumstances
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
• 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, where at least one member of the family is an Australian citizen or Australian permanent resident
• compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
…
24 Section 10 stated that the Department would assess requests against the guidelines and would progress them as described in what followed section 10.
25 I note that the first of these bullet points set out at [23] above would not appear to be applicable as no Australian citizen or Australian permanent resident is a member of the family.
The parties’ submissions
26 It was common ground that the process of assessing the requests was one that was anterior to any personal procedural decision by the Minister to consider the exercise of substantive power and did not constitute a decision of that kind. It was purely non-statutory. It followed that the jurisdiction of this Court was not ousted by ss 474(7) and 476A of the Migration Act and this Court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth) had not been excluded.
27 The applicants submitted that the state of satisfaction in s 351(1) was one that needed to be formed reasonably. Reference was made to Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; 118 FCR 326 at [89], citing the judgment of Gummow and Hayne JJ in Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [167]. I note that these cases did not involve s 351, or an equivalent power.
28 The applicants submitted that the statute itself, in s 351(7), contemplates requests being made for the exercise of power under s 351.
29 The applicants submitted that obligations of reasonableness attended the non-statutory processes structured by the Executive itself to give effect to the contemplated assessment of requests. By the guidelines, the applicants submitted, the Minister had laid out a process for the requests contemplated by the Migration Act to, in fact, be made of him. The guidelines foreshadowed the method of the request and also the information that should be provided. By identifying information that should be provided the guidelines were foreshadowing criteria to be applied. The information that was sought was information that was relevant to the standard that the Minister had decided to apply in assessing the request.
30 The applicants submitted that the guidelines, at least in part, constituted instructions from the Minister to the officers of the Department. This was quite different territory, the applicants submitted, from the cases where there was a statutory discretion being exercised and guidelines published to guide the exercise of that statutory discretion. In that context guidelines could not fetter a statutory discretion, but where there was no statutory discretion being exercised, the Executive itself structured the bounds of the power exercised in the particular circumstances. In this different context the guidelines could take on a different quality because the Court does not have to, in that sense, mediate the relationship between Parliament and the Executive – it was a purely executive non-statutory power and the boundaries of it could be identified by reference to what the Executive itself had done. The relevant kind of legal unreasonableness was that the Minister had set a structure but the decision itself stood outside that structure.
31 The applicants submitted that the availability of review did not depend on the source of the power but on the substance and the character of the power. The applicants adopted the characterisation of this exercise of power by officers of the Department in Plaintiff S10/2011 at [51] per French CJ and Kiefel J and at [93] per Gummow, Hayne, Crennan and Bell JJ, as outlined above.
32 Earlier in Plaintiff S10/2011, the plurality had said, at [69]:
A non-citizen who is in the position of the plaintiffs and seeks the engagement and favourable exercise of the dispensing powers under the federal statute with which these cases are concerned does so to obtain a measure of relaxation of what otherwise would be the operation upon non-citizens of the visa system; it is the requirements of that system which must be met to lift what otherwise are the prohibitions upon entry and continued presence in Australia. This is sufficient to satisfy the principles just discussed.
33 The applicants submitted that the context of that case was the obligations of procedural fairness, and implicit in the plurality’s holding at [69] that the relevant mechanism was sufficient, prima facie, to attract those obligations was a holding that it was sufficient, at least prima facie, to attract judicial review. The applicants submitted that what they had to show in the present case was that legal unreasonableness, or review for a certain kind of legal unreasonableness, was an available ground on which that judicial review jurisdiction could operate.
34 The applicants submitted that it was important not to divorce the relevant non-statutory process, which was within the aspect of s 61 concerned with execution and maintenance of the laws of the Commonwealth, from the particular law being executed and maintained. The applicant submitted that the execution of that law, s 351, was one conditioned by reasonableness. The applicant also relied on the decision of Wilcox J in Thurgood v Director of Australian Legal Aid Office (1984) 56 ALR 565 for the proposition that there is no bright line distinction between the principles of reasonableness that apply in statutory and non-statutory contexts. Notwithstanding that in that case the application for legal aid and the claimed constructive failure to consider the application was taking place in a purely non-statutory context, Wilcox J identified the relevant principle by reference to the decision of the High Court in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 242-3, which was decided in a statutory context.
35 In the present case, the applicants submitted, the content of the reasonableness obligation was to be discerned both from the Constitution and from the common law. The contemplation within Ch II of organised control and systematic structuring of the exercise of power, the applicants submitted, was said to be consistent with fundamental common law conceptions of reasonableness. When the Executive fulfilled that contemplation and ordered for itself the exercise of power, it could by structuring its own discretions and powers itself give content to what legal reasonableness required. The applicants submitted that by structuring the power by reference to dealing with or assessing a request, reasonableness in the circumstances required the departmental employee to understand the nature of the request made.
36 The applicants submitted that the second respondent made final assessments or exercises of power and if he was not required to observe the standards of reasonableness that would reveal a significant gap in the accountability of the Executive.
37 The applicants referred, by way of analogy, to Minister for Foreign Affairs v Lee [2014] FCA 927; 227 FCR 279; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424; and R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44; [2014] 1 WLR 2697 at [50]; [54]-[55]; [61]-[62] and [65].
38 In Sandiford, the Supreme Court was considering the adoption by the government of a blanket policy not to pay for legal help for British nationals in foreign criminal proceedings, including death penalty cases. The Secretary of State’s power to provide the assistance was not derived from statute. The Supreme Court held that the power was not governed by the principle against fettering, although other review grounds, including irrationality and unreasonableness, could apply.
39 At [50], Lord Carnwath and Lord Mance (with whom Lord Clarke and Lord Toulson agreed and with whom Lord Sumption relevantly agreed at [78]) referred to the judgment of the Court of Appeal in R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76 which had said that enforceable rights could arise in domestic law based on established government policy statements or practices, underpinned by the law of legitimate expectation and justiciable in accordance with the principles established in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at [81]ff. The Court of Appeal had held that, although the Foreign Office’s discretion as to exercise of its prerogative powers in such a case was “a very wide one” and although “the court could not enter the forbidden areas, including decisions affecting foreign policy”, there was “no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation” (at [106]). Neither party in the case before the Supreme Court sought to question that analysis.
40 At [65]-[66], these judges of the Supreme Court said:
As we have already made clear, this does not mean that the formulation or exercise of a prerogative power may not be susceptible to review on other grounds. In particular there is no reason why a prerogative refusal to fund foreign litigation should be immune from all judicial review. It does not raise any real issues of foreign policy. As we understand it, the Government’s current blanket policy is motivated largely by domestic policy and funding considerations. In particular, as Abbasi [2003] UKHRR 76 made clear, there is no reason why action or inaction in the exercise of such a power should not be reviewable on the grounds of irrationality or breach of other judicial review principles.
“Irrationality” is a high threshold, but it may be easier than otherwise to surmount in a case involving an imminent risk of death by execution of a British citizen deprived of financial support abroad. The court’s role is given added weight in a context where the right to life is at stake (see R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514). A keen scrutiny of the policy and its application must on any view be required in such circumstances. There may be scope in an appropriate case to test the legitimacy of the blanket policy that the Foreign Office currently advances, by reference to a broader framework of proportionality discussed in a non-Convention context in Kennedy v Information Comr (Secretary of State for Justice intervening) [2014] 2 WLR 808. Issues of consistency may also arise when the blanket policy is compared with the strong and apparently flexible approach to the exercise of “appropriate influence” advocated by the FCO’s published strategy for abolition of the death penalty. However, for reasons which will become apparent, these questions are not critical to the outcome of this particular appeal.
41 The applicants submitted that the second respondent’s treatment of the request for ministerial intervention revealed legal unreasonableness. That legal unreasonableness was identified in two ways by the applicants.
42 The first way in which legal unreasonableness was put was in relation to the fourth applicant, Ms Najat Jabbour. It was contended that the second respondent did not consider her ability to access disability services and did not assess the claims regarding lack of access to disability services in Lebanon.
43 The applicants drew attention to what they described as an important finding by the Commonwealth’s Medical Officer in relation to Ms Najat Jabbour, which was that “[s]he currently does not require medical intervention, however, may require non-medical services to assist with day to day living.”
44 The applicants submitted that nowhere in the record of the second respondent’s reasons was there an appreciation of the lack of relevant non-medical services in Lebanon which was a material and important part of the request. The applicants asked the Court to make the finding that if that aspect of the request had been properly understood then it would have been dealt with in this minute and that the failure to deal with it in the minute gave rise to an inference that it had not been properly appreciated or understood. That failure was unreasonable because the executive, having chosen to deal with these matters by receiving requests and applying guidelines to them, had bound itself to a standard of reasonableness that required it to understand the request that was made in all material particulars.
45 For this primary ground, the applicants submitted that they did not need to contend that the particular content of the guidelines was binding, but it was enough for them to rely on the fact that there were guidelines, having some content directed to an assessment of requests made.
46 The second way in which legal unreasonableness was put was that there was a new matter not previously provided or considered, presenting unique or exceptional circumstances. The applicants accepted that for this ground to succeed they had to accept that the content of the guidelines was, in effect, binding.
47 The applicants submitted that no reasonable decision-maker could have reached this decision, that is, would have failed to refer the request to the Minister.
48 First, the absence of the parents from the request meant that any lingering issue about the stolen visa labels given to the family could not reasonably have borne on the Minister’s consideration of the request — the applicants were the children who had all been minors at the time. This was a significant difference in the second request which compelled a finding that there had been a significant change in circumstances raising new issues that would fall within the unique or exceptional circumstances described in the Guidelines.
49 Second, the fourth applicant’s, Ms Najat Jabbour’s, circumstances raised a significant change in circumstances which change in circumstances unquestionably fell within the compassionate circumstances as identified in the guidelines as unique or exceptional circumstances.
50 The Minister submitted that Plaintiff S10/2011 and Raikua v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 370; 158 FCR 510 constituted a bar to the applicants’ success.
51 As to Plaintiff S10/2011, the Minister submitted that the complaint in that case included that the officer failed to address the material and claim before him. Reference was made to the judgment of Gummow, Hayne, Crennan and Bell JJ at [95], noting the submission that the content of the obligation to afford procedural fairness included a prohibition upon failure to consider clearly articulated claims supported by evidence. The High Court, the Minister submitted, should be taken to have rejected that proposition. The Minister accepted that in Plaintiff S10/2011 the contention was put under the label of procedural fairness but in substance that included the claim presently being advanced. Thus it followed from Plaintiff S10/2011, adopting the language of the plurality judgment at [51], that there was nothing about the character of the guideline processes as an exercise of the executive power of the Commonwealth or otherwise that attracted to them a requirement to act without legal unreasonableness.
52 The Minister also submitted that the only source of an implied requirement of legal reasonableness was statute. Further, even if such a requirement could be found, without statutory scope and purpose there could be no sufficient content given to a legal reasonableness obligation. Also, the Minister submitted, because the ultimate statutory power was referable to considerations of public interest the actions of the officers of the Department were not susceptible to judicial review.
53 The Minister submitted that if exercises of non-statutory power were amenable to judicial review, it was nevertheless necessary to consider the nature and subject matter of the relevant power to determine the extent to which the judicial review grounds were available. In the absence of a footing in statute, there were significant difficulties in the way that the claim for judicial review was sought to be made in the present case. The nature of the power here in issue was inconsistent with a doctrine of reasonableness applying to non-statutory executive power: referring to Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332.
54 The Minister submitted that what was involved here was a power that lacked some or all of the characteristics of statutory power by which one normally engaged in this sort of review. Therefore, one did not know things like scope, purpose and subject matter which may be very broad. Extreme caution should be exercised when faced with this sort of ground of review.
55 The Minister submitted that the Supreme Court in Sandiford, particularly at [66], proceeded by reference to doctrines that were entirely foreign to an Australian legal context. The Minister submitted that a legal unreasonableness analysis in a case such as the present was impossible to conceive of unless one derived those standards from elsewhere, as had been done in the English authorities.
56 The Minister also submitted that the applicants, even if correct in their contentions regarding the obligations of legal reasonableness, would fail on the facts. The material showed that in Lebanon there was widespread reliance on private health facilities, as public health facilities were weak and concentrated in urban centres. The material showed that a similar position applied to education, so that it was primarily private educational facilities by which people got their education.
57 The Minister submitted that the material did not show that the services that Dr Kwok referred to were not available at all in Lebanon. Although Lebanon had made very little provision for social welfare, social services were delivered by non-governmental organisations.
58 The second respondent in his file note dated 23 March 2018 had compendiously discussed both Dr Kwok’s report and what was put in the submission. It was said in the file note that the fourth applicant, Ms Najat Jabbour, would face “enormous challenges” in settling back into Lebanon because of her learning disability. Fairly read, the enormous challenges referred to the various matters identified in the submission, which the second respondent should be assumed to have read. That included Dr Kwok’s opinion regarding resettlement, but also the difficulties identified by reference to the statistics of being a person with a disability in Lebanon.
59 The Minister submitted what was said in the next paragraph of the minute was correct. There was nothing to suggest that the second respondent misunderstood the basis on which the claim was being put. In any event, the applicant’s own material, which was before the second respondent, indicated that such services were available, albeit that they were provided by the private sector.
60 There was nothing to ground any sort of claim of legal unreasonableness, even if that ground was available: what was said was well within the area of decisional freedom. It was open to the second respondent to assess the difficulty in obtaining services was not a difference as to a matter of substance or was not going to lead to serious ongoing irreversible harm.
61 The second respondent could readily take the view that the exclusion of the applicants’ parents did not constitute a significant change, referring again to section 11.2 of the guidelines, and, perhaps more generally, could not give any tenable basis for asserting that the decision was Wednesbury unreasonable. The second respondent referred to the submission that the present applicants were too young to understand the visa process or to act independently from their parents at the time they and their parents obtained fraudulent partner visas.
62 The Minister also submitted that the departmental minute was not a formal statement of reasons.
63 In supplementary written submissions filed by leave on 15 March 2019, the Minister submitted the real burden of the applicants’ Wednesbury claims was to seek to enforce adherence to the guidelines by the second respondent. This was evident from the terms of the declaration sought at paragraph 3 of the amended originating application (“falls within” the guidelines, such that the request “should be referred to the Minister…”), the relevant paragraph of the applicants’ submissions (where the applicants expressed the focus of review as the second respondent’s application of the normative standards set out in the guidelines as to a “significant change in circumstances”, “new, substantive issues” and “unique or exceptional circumstances”) and from what appears following that paragraph.
64 However, the Minister submitted, judicial review was not available to compel the executive to adhere to its substantive promises or statements set out in documents such as the guidelines. That was the necessary consequence of the rejection in Australia of the doctrine of substantive legitimate expectations (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [65]-[77] (McHugh and Gummow JJ, Callinan J agreeing at [148]).
65 That position, the Minister submitted, cohered with earlier decisions of this Court regarding attempted reliance on guidelines as the source of rights of a person claiming to be aggrieved by administrative action: see Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 10 FCR 264 at 269-270 per Fox J; Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 540 (Sheppard J); and Broadbridge v Stammers (1987) 16 FCR 296 at 300.
66 In Conyngham, the Minister submitted, Sheppard J (at 540-541, with whom Beaumont and Burchett JJ relevantly agreed) echoed Fox J’s caution, expressed in East West Trading, against “elevating … guidelines to the status of law” and found the primary judge had erred in making a declaration that an application for sponsorship “was within the policy guidelines issued by the respondent” (echoing the form of declaration sought in the amended application at [3]). That was on the basis that such guidelines in fact conferred no rights but rather operated only to indicate to applicants and those administering the Migration Act how applications “would usually be dealt with”. That was binding authority directly in the path of the declaration sought by the applicants at paragraph 3 of the amended originating application.
67 The Minister submitted that those authorities had not been disturbed or revisited and had, rather, been cited with apparent approval. See eg Holden Limited v Chief Executive Officer of Customs (2005) 141 FCR 571 at 582-583 [37]-[38] and Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 51-52. See also, in relation to the proper construction of an enactment requiring that a power or function be carried out in accordance with policy, Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 391 [94]-[95] (referring to Broadbridge). Moreover, they cohered with the position later adopted in Lam. They can also be seen to be consistent with, and may more fully explain, Lindgren J’s reasoning in Raikua at 522 [64] (“not something provided for by the Act, and does not itself affect legal rights”) and 524 [70]. They had obvious application to the guidelines, which likewise involved discretionary value judgments based on broadly and imprecisely described notions such as “unique or exceptional circumstance” accompanied by non-exhaustive examples of the same character, directed to facilitating consideration by the Minister of the exercise of a dispensing power, which is itself conditioned on an opinion as to the amorphous concept of what is in the “public interest”. Such a document, of its nature, did no more than indicate to applicants and those administering the Migration Act how applications will usually be dealt with. A failure to adhere to it gave rise to no error of the nature alleged here.
68 The statement in Broadbridge, the Minister submitted, also revealed the difficulties in the applicants’ appeal to notions of “islands of power” in its written submissions and the suggestion (made at the hearing) that the guidelines derived some form of binding force from the Constitution itself. As in Broadbridge, departmental officers applying the guidelines remained subject to the internal control of the executive branch through supervision, correction, discipline and complaint – including under the code of conduct in the Public Service Act 1999 (Cth). The Minister was, in turn, accountable to Parliament for the discharge and efficacy of those internal processes. There was no foundation for asserting that there existed any relevant “accountability gap” in those circumstances. Nor, contrary to the submissions advanced orally by the applicants, did that provide any sound basis for divining some sort of obligation to comply with the guidelines derived from ss 61, 64, 67, 69 and/or 84 of the Constitution which was enforceable at the suit of the applicants.
69 In relation to Ground 1, the Minister submitted that there were no duties on departmental officers comparable to the statutory duties considered in NABE v Minister for Immigration [2004] FCAFC 263; 144 FCR 1 at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 at [42] and see also Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 (at [24]-[25] Gummow and Callinan JJ, Hayne J agreeing at [95]), to consider an application, deal with it in a particular manner or provide reasons from which an error of the kind alleged in the applicants’ first way of making out unreasonableness could arise. Such a duty could not be implied in the exercise of non-statutory executive power generally. The position was a fortiori in the case of the particular species of non-statutory executive power that arose here: a power of administrative inquiry and advice. Nor could the guidelines themselves or the Constitution supply the source of any such duties for the reasons already given. Indeed, in oral submissions in reply the applicants disavowed any reliance on the guidelines as supplying the source of an obligation said to have been breached in relation to its first ground.
70 In relation to the applicants’ second way of framing alleged unreasonableness, the Minister submitted that the absence of a statutory source of power was a significant obstacle to the determination of the boundaries of non-statutory executive power. The relevant species of non-statutory executive power involved in the present case could be described as “administrative inquiry” and preparation of “advice” (Plaintiff S10/2011 at [46]-[48] per French CJ and Kiefel J). In Clough v Leahy (1904) 2 CLR 239 at 156, Griffith CJ described a power of inquiry as that of “asking questions, … a power which every individual citizen possesses.” The Minister submitted it was difficult to conceive of circumstances in which the purported exercise of a non-statutory power of this character could be said to occur outside lawful boundaries.
71 It was ultimately not necessary for the Court to determine that issue, because the applicants did not in fact advance their Wednesbury claim by reference to the scope of a power to inquire and advise, but rather by reference to the guidelines themselves.
72 The Minister also submitted in its supplementary written submissions that Thurgood did not assist the applicants. There Wilcox J, at 569, proceeded on the basis, conceded by counsel for the respondent, that s 39B of the Judiciary Act would enable the Court to issue a writ of mandamus compelling the Director of the Office to consider according to law an application for legal assistance. Understandably (in light of that concession), the matters the Minister raised in opposition to the current claim were not in issue between the parties.
73 In supplementary written submissions filed by leave on 27 March 2019, the applicants submitted that the occasions on which Australian courts had so far considered the legal status of guidelines had generally arisen in relation to statutory rather than non-statutory powers. There was a distinction between guidelines that guided the exercise of a statutory power and guidelines that guided the exercise of a non-statutory power. The courts had, of course, been wary of enforcing guidelines that guided the exercise of statutory powers, because to do so would be to allow the Executive to fetter the power conferred on it by Parliament. Where the underlying power was non-statutory, the position was fundamentally different. No equivalent question of fettering arose. In the non-statutory context, this meant that any principle of non-bindingness of guidelines must find its source in another principle. The respondents did not identify any such source. Rather, close analysis of the context suggested that guidelines can have something like a “binding” effect: quite apart from the cases addressed in oral submissions, Ch II of the Constitution could be seen to contemplate that the Executive Government of the Commonwealth might, itself, organise the exercise of non-statutory power and that it might do so in ways that give rise to legally enforceable constraints. Those constraints might in an appropriate case derive from the terms of the guidelines themselves, or they might derive from the structure of the relevant power as one to be exercised by a decision-maker applying guidelines to facts or requests.
74 The applicants submitted that the principle to be discerned from Broadbridge was not that guidelines were unenforceable by a court, but rather that close attention must be paid to the character of guidelines in a particular case. Implicit in the decision was the possibility that a delegation of power might be legally constrained by reference to guidelines or policies.
75 In the context of non-statutory executive power, the applicants submitted it was open to the Executive Government of the Commonwealth to confine that power by the promulgation of guidelines conditioning the exercise of power and, more specifically, by organising the exercise of power in a system that contemplated applications or requests and the application of guidelines to those requests.
76 The applicants submitted that the organisation of non-statutory executive power pursuant to Ch II of the Constitution was not a matter of mere communication by government to its subjects. It was the carrying out of the constitutional task contemplated by Ch II itself. Parliament, which could of course regulate the executive power and displace the Executive branch’s own control, must be taken to have acted or, importantly, not to have acted on the basis of the organisation in fact implemented by the Executive. In that sense, the prevailing organisation of non-statutory executive power had a particular constitutional significance in that it underpinned or stood as the implicit premise for any absence of statutory control. The applicants’ case asked the Court to recognise that in some contexts – particularly contexts involving the organisation and control of the exercise of non-statutory public power by civil servants – guidelines created legally enforceable limits on power. Those limits may be derived from the terms of the guidelines themselves (referring to the second way unreasonableness was alleged) or, more subtly, they might derive in a more attenuated way from the structure of the relevant power as one to be exercised by a decision-maker applying guidelines to facts or requests (referring to the first way unreasonableness was alleged).
77 In Broadbridge, at 300, the Court referred to the expectation that the delegate “would be open to correction or discipline by the Commission should he depart in material respects from [the policy manual]”. Where such administrative accountability was lacking, that would tend to support the inference that adherence to the relevant guideline was intended to be reviewable by the Courts. The Executive government cannot say to Parliament that the exercise of non-statutory power is taking place according to guidelines but simultaneously say to the Court that the guidelines do not constrain that power (even in the attenuated sense advanced in the first way unreasonableness is put, that the civil servant in the second respondent’s position must exercise power by applying the guidelines to the facts and therefore understand the nature of the request before him).
78 The applicants submitted that the existence in fact of reasons then engages the seriously considered obiter dictum in Singh (2014) 231 FCR 437 at [47] that “it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was” and that the “intelligible justification must lie within the reasons the decision-maker gave”. The court can, by reference to the reasons in fact given, “identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable” (see Singh at [45]). It followed, the applicants submitted, that the Court may discern legal unreasonableness from the second respondent’s reasons and the surrounding factual circumstances (ie the first way unreasonableness is put) whether or not it formed the view that the outcome was of itself unreasonable (ie the second way unreasonableness is put). That is, if the second respondent acted unreasonably by failing to comprehend the nature of the request, as the relevant non-statutory executive power required, then it did not matter whether the outcome might by itself otherwise be explicable, “bearing in mind that it is for the repository of power, and not the Court, to exercise the power” (see Singh at [45]).
Consideration
79 In my opinion, contrary to the Minister’s submission, neither Plaintiff S10/2011 nor Raikua constitutes a bar to the applicants’ success.
80 As to Plaintiff S10/2011, I accept that judicial review for denial of procedural fairness and judicial review for legal unreasonableness may overlap in their operation. I also accept that procedural fairness and legal unreasonableness are analogous and closely linked principles as presumptions of law and implied as conditions of validity of the exercise of statutory power, subject at the level of principle to similar displacement for inconsistency. Nevertheless the principles are distinct in their history, principles and terms.
81 I would not read the factors relied on by Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10/2011 at [98]-[99], which led in that case to the conclusion that the dispensing provisions were not conditioned upon observance of the requirements of natural justice, as necessarily meaning that the conditioning of those provisions by the requirement of legal reasonableness was to be construed as displaced. The mere fact that both principles may be displaced as a matter of statutory construction does not necessarily mean that because one principle, procedural fairness, is so displaced, the other principle, legal reasonableness, is also displaced. In my opinion, whether a person taking administrative action is required to give a reasonable opportunity to be heard to an affected person involves factors distinct from whether that person’s actions must be legally reasonable.
82 That one error may be characterised as “at least” a failure to accord natural justice where breach of the rules of natural justice was excluded as a ground upon which an application may be made, as in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24], does not mean that there has not been a constructive failure to exercise jurisdiction. As in Dranichnikov at [25], the question remained whether what occurred, either characterised as a failure to accord natural justice or as that, and more as a constructive failure to exercise jurisdiction, entitled Mr Dranichnikov to relief under s 75(v) of the Constitution. See also Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [74]-[76] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
83 As to Raikua, the analysis of Lindgren J proceeded by reference to the Minister’s decision not to consider exercising his power under s 417(1) in the particular case of the applicants. This was said to comprise the Minister’s decision operating upon the subjective judgment formed by the Manager of the Ministerial Interventions Unit Onshore Protection NSW Department, there being no delegation by the Minister in favour of that position or that officer. In those circumstances, Lindgren J held that that officer’s decision was not something provided for by the Migration Act and did not itself affect legal rights and was not susceptible to judicial review. In that case, in my opinion, the conclusion was reached because the preliminary processes were seen to lead to the decision of the Minister, whereas in the present case there is no more than action by the relevant public servant, the second respondent.
84 Lindgren J also referred to the decision of the Full Court in Bedlington v Chong (1998) 87 FCR 75. Section 48B of the Migration Act was in similar terms to the present s 417, and s 48B(6) was in similar terms to the present s 417(7). In that case only some of the grounds, not including the ground of unreasonableness, were remitted to the Federal Court by the High Court. The grounds that were remitted were: that the Secretary was obliged to bring to the attention of the Minister the application made by Ms Chong for the Minister to exercise his discretion under s 48B but failed to do so; and that the Minister was obliged to determine whether to consider Ms Chong’s application but failed to do so. The Full Court (Black CJ, Kiefel and Emmett JJ) allowed the appeal from Beaumont J and ordered that the proceedings be dismissed in so far as they relied on those grounds. The Full Court held that s 48B imposed no duty on the officer of the Department to bring the matter to the attention of the Minister. Their Honours did however say, at 80-81:
So long as the Secretary was acting in accordance with the guidelines, she had no duty to refer Ms Chong’s application to the Minister. In reaching that conclusion, of course, we should not be understood as saying that, if the Secretary was not acting in accordance with the guidelines, Ms Chong was entitled to any relief. That is not a matter before us. However, insofar as Ms Chong's application for relief is based solely on the Secretary's failure to bring Ms Chong's application to the attention of the Minister or on any failure on the part of the Minister at this stage to consider her application, it should be dismissed. More generally, there is no suggestion that the present non-statutory guidelines are unlawful.
85 It was not put in this case that the Minister was not permitted to develop guidelines for the Department to assess whether a case should be considered by the Minister. It was not put that such guidelines were an impermissible delegation by the Minister of his powers. These contentions could not have stood with Plaintiff S10/2011 at [46], [51]-[52], [91] and [119]. See also Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs; Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168. The Minister’s statutory powers have not been engaged at all.
86 Further, there was no suggestion that the second respondent did not have regard to the guidelines, and it was not put that the second respondent misconstrued the guidelines so as to give rise to an error of law.
87 It was not in dispute that authority in this Court establishes that exercises of non-statutory executive power may be amenable to judicial review depending upon its nature and subject matter, as opposed to its source: Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274.
88 It was not put on behalf the Minister that the action taken was not justiciable as, for example, involving assessment of where Australia’s foreign policy interests lay: compare Aye v Minister for Immigration and Citizenship [2010] FCAFC 69; 187 FCR 449. Indeed, the guidelines are not directed to whether or not it is in the public interest for the Minister to substitute a more favourable decision.
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.
90 Conyngham involved certain guidelines laid down by the Minister or his Department for the guidance of entrepreneurs wishing to organise performances by overseas artists or actors in Australia. Actors Equity lodged an objection to the tour of The Platters. A recommendation was made to the Minister that he refuse “the entry of ‘The Platters’”. The Minister accepted the recommendation. The respondents were notified accordingly. Before the Full Court there was no challenge to the order made by the primary judge that the Minister’s decision be set aside. Senior Counsel had told the primary judge that the Minister would consent to an order setting aside his decision and to an order that the matter be remitted to him to further consideration. The only issue on the appeal was the nature of the relief to which the respondents were entitled, the primary judge having made a declaration that the application was within the policy guidelines issued by the respondent for the grant of temporary entry permits and having made an order that the Minister issue an approval of the application. Sheppard J, with whom Beaumont and Burchett JJ agreed, said, at 541:
Similarly, there is no ground for elevating the guidelines here to the status of law. That is why I think that his Honour fell into error in making a declaration that the application for sponsorship was within the policy guidelines issued by the respondent for the grant of temporary entry permits. Wide though the provisions of s 16 of the [Administrative Decisions (Judicial Review)] Act are, they do not in my opinion authorise the making of a declaration unless what is being declared is a right in the true sense of the word. The guidelines themselves conferred no rights. They operated only to indicate to those administering the Act and to those who might be concerned to apply for the temporary entry of entertainers the manner in which the application for a temporary entry permit would usually be dealt with.
See also Apthorpe v Repatriation Commission [1987] FCA 423; 77 ALR 42 at 51-52 [26] per Davies, Lockhart and Gummow JJ.
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.
92 The nature of the administrative action, the relevant exercise of power, does not take it out of the mainstream of government actions either by reference to subject matter or as involving a matter of political judgment. These characteristics of the present non-statutory administrative action do not distinguish it from a statutory discretion. Although involving the exercise of a non-statutory power, the circumstances are “more closely related to justice to the individual than with political, social and economic concerns”: South Australia v O’Shea [1987] HCA 39; (1987) 163 CLR 378 at 387 per Mason CJ. That the basis of review may be narrower than for government action under a statute does not have the consequence that judicial review is unavailable. That the action in the present case is not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth), because there is no decision under an enactment, does not mean that judicial review under s 39B of the Judiciary Act is not available: s 10 of the Administrative Decisions (Judicial Review) Act provides that the rights conferred by ss 5, 6 and 7 are in addition to, and not in derogation of, any other rights that the person has to seek a review by, relevantly, a court. Further, I have set out at [81] above why I consider the displacement of procedural fairness, as a matter of contrary statutory intention, does not mean that review for legal unreasonableness is similarly displaced.
93 I have referred above to the decision of a Full Court of this Court in Minister for the Arts, Heritage and Environment v Peko-Wallsend. That decision has been followed by a Full Court of the Supreme Court of South Australia (King CJ, Matheson and Bollen JJ) in Blyth District Hospital Inc v South Australian Health Commission (1988) 49 SASR 501 and by the Appeal Division of the Supreme Court of Victoria in State of Victoria v Master Builders’ Association of Victoria [1995] 2 VR 121. See also L v State of South Australia [2017] SASCFC 133; 129 SASR 180 at [150], [164] per Kourakis CJ, Parker and Doyle JJ agreeing.
94 In R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, at 220-221, Mason J said:
… there is much to be said for the view … that the exercise of a discretionary prerogative power “can be examined by the courts just as any other discretionary power which is vested in the executive”. The question would then remain whether the exercise of a particular prerogative power is susceptible of review and on what grounds.
95 In Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1, at 35, Brennan J said the duty of the courts extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law.
96 In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82, at [45], Gaudron and Gummow JJ said: “Indeed, an important exercise of the judicial power of the Commonwealth is its utility in controlling actions by the executive branch of government beyond the exercise of the executive power vested by s 61.”
97 In Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44, at [69], McHugh, Gummow and Hayne JJ referred to the view in the United Kingdom, since discredited there by Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 and M v Home Offıce [1994] 1 AC 377, that the manner of exercise of non-statutory powers of the executive government was never susceptible of judicial review. Their Honours continued:
In Australia, as Windeyer J explained in Marks [v The Commonwealth (1964) 111 CLR 549 at 564-565], the constitutional structure after federation rendered inapplicable any such general proposition.
98 In that case, Windeyer J said:
… as the Commonwealth can sue and be sued in the courts, the subjection of the Crown to the law can in appropriate cases be enforced in Australia by action against the Commonwealth, instead of by the procedure of petition of right formerly necessary in England. And the Court can, I do not doubt, restrain executive action that is contrary to law. But this does not, as I understand the law, mean that the Court can direct the manner of the exercise by the Governor-General of any discretion lawfully exercisable by him on the advice of the Executive Council; and the Court cannot dictate to ministers what advice they should give in such a case.
99 This analysis shows that the key is to be found in s 75(v) of the Constitution. It is not necessary to consider s 75(iii) for present purposes, and no submissions were directed to that provision. The decisions in the United Kingdom such as Sandiford, considered at [38]-[40] above, therefore provide little assistance.
100 Of course, some non-statutory administrative action may not have the characteristics I have set out at [91] above and for that reason, or otherwise by virtue of their nature or statutory exclusion, may not be amenable to judicial review for legal unreasonableness.
101 If it be necessary to find a conceptual underpinning for the role of this Court in judicial review of governmental action under non-statutory powers, the Court having jurisdiction under s 39B of the Judiciary Act, reflecting relevantly the jurisdiction of the High Court under s 75(v) of the Constitution, I would find it in the common law. The matter is discussed by Professor Fiona Wheeler in ‘Judicial Review of Prerogative Power in Australia: Issues and Prospects’ (1992) 14 Sydney Law Review 432 at 461ff and by Ms Amanda Sapienza in ‘Judicial Review of Non-Statutory Executive Action: Australia and the United Kingdom’ (2018) 43 University of Western Australia Law Review 67. It would seem to me to be incongruous to have in the common law a principle of statutory interpretation implying reasonableness as a condition of the exercise of a discretionary power conferred by statute, but not to have in the common law any such principle existing outside statutory interpretation. The creation of “islands of power immune from supervision and restraint” or “distorted positions”, referred to in Kirk by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [99], would thereby be avoided. The second respondent is of course an officer of the Commonwealth within s 75(v) and s 39B.
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.
103 Although not necessary to decide in the present case, if the Minister did in fact act under s 417(1) in a particular case, even though under no duty to consider whether to exercise that power, the Minister’s action would also be judicially reviewable for legal unreasonableness notwithstanding that procedural fairness is excluded.
104 I turn now to consider whether legal unreasonableness, as contended for by the applicants, is made out. Because the administrative action is non-statutory, the boundaries of power may be more difficult to define and the evaluation of whether the action taken was within those boundaries cannot be conducted by reference to the relevant statute, its terms, scope and purpose.
105 In my opinion, the first way in which legal unreasonableness was put by the applicants, corresponding to Ground 3 of the amended application, is not made out at the level of fact. The second respondent referred to the psychological reports provided for each of the applicants and said that Ms Najat Jabbour was noted to have a learning disability. The second respondent said that she would face enormous challenges in settling back into Lebanon because of her learning disability. Further, the second respondent said the Medical Officer of the Commonwealth noted that Ms Najat Jabbour was stable and that medical services were available in Lebanon should she require them, and that while Ms Najat Jabbour currently did not require medical intervention, she may require non-medical services to assist with day-to-day living.
106 I infer this is in part a reference to the material before the second respondent in the form of an assessment of health claims stating that Ms Najat Jabbour had been found to have some cognitive intelligence issues as outlined in the report by a psychologist, and referring to Ms Najat Jabbour’s mild-moderate intellectual disability with impaired skills in literacy, long-term memory and higher-order/executive intellectual functioning, which condition is likely to be permanent. It is there said that Ms Najat Jabbour had moderately severe functional impairment and was likely to require disability support services.
107 In turn, that material would appear to refer back to a report dated 5 February 2018 by Dr Kwok, consultant clinical and forensic psychologist. In that report Dr Kwok said at [125] that Ms Najat Jabbour ideally should be referred to disability support services and try to access training and work through those services. At [135], Dr Kwok reported that Ms Najat Jabbour, in returning to and resettling in Lebanon, would likely find resettling into a new and unfamiliar environment extremely difficult. At [140], Dr Kwok said it would be extremely difficult for Ms Najat Jabbour to resettle into a new environment. If she were permitted to remain in Australia and given access to community support, a referral to disability support services was also considered appropriate.
108 It was submitted on behalf of the applicants that they advanced material to the effect that there was very little support for disabled persons in Lebanon. The applicants submitted that the assessment of the Medical Officer of the Commonwealth also found that while Lebanon has medical services should Ms Najat Jabbour require medical treatment, she “currently does not require medical intervention, however, may require non-medical services to assist with day to day living”.
109 I do not accept the submission, as sounding in legal unreasonableness, that the second respondent overlooked the claim that Ms Najat Jabbour required disability support services that were not available in Lebanon.
110 Neither do I accept the submission that the second respondent “compounded the unreasonableness” by accepting the Medical Officer’s findings that Ms Najat Jabbour “may require non-medical services to assist with day to day living” without then dealing with the applicants’ claim about the unavailability of those requisite services, which claim was supported by the Medical Officer’s further finding that requisite medical services (as distinct from non-medical services) were available in Lebanon.
111 In my opinion, it was sufficient for the second respondent to state, as he did, that Ms Najat Jabbour had a learning disability; that she may require non-medical services to assist with her day-to-day living; and would face enormous challenges in settling back into Lebanon because of her learning disability. The applicants put their claim of legal unreasonableness at a level of granularity which does not sustain that claim in light of the material before the second respondent.
112 The second respondent’s document is not a statement of reasons in the familiar form, whether under statute or otherwise. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] French CJ, Bell, Keane and Gordon JJ said:
It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate's letter is “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.
(Footnotes omitted.)
113 Assuming in favour of the applicants that the relevant test is whether the second respondent misunderstood the characteristics of the request before him, the applicants have not established that matter.
114 In my opinion, legal unreasonableness in the second way put by the applicants, corresponding to ground 4 of the amended application, has not been established. I do not accept, for the reasons I have already given, that it was legally unreasonable for the second respondent to conclude, as a matter of evaluation or judgment, that Ms Najat Jabbour’s condition did not amount to unique or exceptional circumstances.
115 Further, it was a matter of evaluation or judgment for the second respondent whether the absence of the applicants’ parents from the application did not amount to a significant change of circumstances. In the earlier application for intervention under s 351 it was not suggested that the applicants’ parents were other than the victims of the scam. It was therefore well open for the second respondent to consider that the absence of the applicants’ parents from the current application for intervention was not a significant change of circumstances.
116 No ground for making the declarations sought is established.
117 As to the second declaration sought, I would add that it is not the task of this Court to decide whether or not the applicants’ request for Ministerial intervention under s 351 does or does not fall within the Minister’s guidelines for intervention such that the request should be referred to the Minister for consideration according to law: see Conyngham and [90] above. I would in any event have refused that relief.
Conclusion and orders
118 The application is dismissed, with costs.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. |
Associate:
NSD 1500 of 2018 | |
NAJAT JABBOUR |
