Federal Court of Australia

XAD (by her litigation guardian XAE) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 12

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The cross-appeal is dismissed.

3.    Each party is to bear their own costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant is a child born in Australia to parents who are unauthorised maritime arrivals within the meaning of s 5AA(1) of the Migration Act 1958 (Cth) (the Act). This means that she is also an “unauthorised maritime arrival” – see s 5AA(1A). It also means that the application lodged on her behalf on 12 September 2019 for a Safe Haven Enterprise Visa (SHEV) is invalid (s 46A(1) of the Act) unless, relevantly, the Minister has, pursuant to s 46A(2) of the Act, “lifted the bar” to her application.

2    The primary Judge found that a determination made by the then Minister for Immigration and Border Protection on 26 July 2017 under s 46A(2) of the Act did not have the effect that the bar in s 46A(1) ceased to apply in her circumstances: XAD (by her Litigation Guardian XAE) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 495.

3    The respondents to the appeal and the cross-appellants are the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister Coleman), the Commonwealth of Australia, the Minister for Home Affairs (Minister Dutton) and the Secretary of the Department of Home Affairs. By their cross-appeal, the respondents challenge the declaration made by the Judge that the Minister had made a decision in mid-May 2019 to consider exercising the power under s 46A(2) to lift the bar; that the appellant had been entitled to, but denied, procedural fairness in relation to that consideration; and that that failure affected the validity of the assessment by the Minister in August 2019 not to lift the s 46A(1) bar. The declaration which the Judge made to give effect to those findings was as follows:

In finding that she was not satisfied that the claims raised by the applicant are likely to engage Australia’s protection obligations, the officer who carried out the protection obligations assessment in respect of the applicant in August 2019, failed to observe the requirements of procedural fairness.

4    We will, for the sake of simplicity, refer to the parties throughout as “the appellant” and “the respondents”, ignoring the different status which they have on the appeal and the cross-appeal.

5    For the reasons which follow, we consider that both the appeal fails and the cross-appeal fail.

Statutory provisions

6    Section 46A of the Act, which prohibits certain unauthorised maritime arrivals from making a valid application for a visa but which also permits the Minister to determine that that prohibition does not apply in certain cases, provides (relevantly):

46A Visa applications by unauthorised maritime arrivals

(1)    An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

(a)    is in Australia; and

(b)    either:

    (i)    is an unlawful non-citizen; or

(ii)    holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.

Note:    Temporary protection visas are provided for by subsection 35A(3).

(1A)    Subsection (1) does not apply in relation to an application for a visa if:

(a)    either:

(i)    the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or

(ii)    the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and

(b)    the application is for a visa prescribed for the purposes of this paragraph; and

(c)    the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.

(2A)    A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.

(2B)    The period specified in a determination may be different for different classes of unauthorised maritime arrivals.

(2C)    The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.

(3)    The power under subsection (2) or (2C) may only be exercised by the Minister personally.

…

(7)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.

7    Section 46A(1) is said to create a “bar” preventing (relevantly) an unauthorised maritime arrival who is in Australia and who is an unlawful non-citizen making a valid application for a visa. However, by subs (2), the Minister may “lift the bar” imposed by subs (1) by determining that it does not apply to an application by the unauthorised maritime arrival for a visa of a specified class. That power may only be exercised by the Minister personally (subs (3)). Subsection (7) makes it plain that the Minister is not under a duty to consider exercising the power in s 46A(2).

8    Section 46A is one of a number of non-compellable powers vested in the Minister by the Act. Other such powers are found in ss 48B, 195A and 417.

9    Section 48A operates to preclude persons who have made unsuccessful applications for Protection visas from making further applications for Protection visa. Section 48B is an analogue of s 46A(2) because it empowers the Minister, if the Minister considers it in the public interest to do so, to lift the s 48A bar.

10    Section 195A authorises the Minister, when the Minister thinks that it is in the public interest to do so, to grant a visa of a particular class to a person who has been detained under s 189.

The appeal

11    In the proceedings at first instance the appellant sought an order in the nature of mandamus to “compel the consideration of a valid visa application made by the appellant on 13 September 2019”. The issue raised by the two grounds in the notice of appeal is whether the Judge was wrong to reject the arguments advanced in support of that claim for relief.

12    It is common ground that the appellant had lodged an application for a Safe Haven Enterprise Visa (SHEV application) on 12 September 2019 (rather than 13 September 2019 as stated in the originating application). The issue at first instance was whether the SHEV application was a valid application. If it was valid, s 47 of the Act required that the Minister consider and determine it and, until that was done, no power or duty could arise under the Act to remove the appellant from Australia.

13    On 26 July 2017, the Minister for Immigration and Border Protection (the Minister) made a determination under s 46A(2) to allow children born to persons who were unauthorised maritime arrivals to apply for particular classes of visa (Determination), expressed in the following terms:

DETERMINATION UNDER SUBSECTION 46A(2) OF THE MIGRATION ACT 1958 PERMITTING THE MAKING OF A VALID APPLICATION FOR A TEMPORARY PROTECTION (CLASS XD) VISA AND A SAFE HAVEN ENTERPRISE (CLASS XE) VISA

Pursuant to subsection 46A(2) of the Migration Act 1958 (the Act), and thinking that it is in the public interest to do so, I hereby determine that subsection 46A(1) of the Act does not apply to an application by a person who is an unauthorised maritime arrival because of subsection 5AA(1A) of the Act, for a Temporary Protection (Class XD) visa and Safe Haven Enterprise (Class XE) visa, if:

(a)    a determination has been made under subsection 46A(2) in relation to a parent of the unauthorised maritime arrival, allowing an application for a Temporary Protection (Class XD) visa and Safe Haven Enterprise (Class XE) visa; and

(b)    any application by a parent of the unauthorised maritime arrival pursuant to a determination of the kind mentioned in (a) is made before 1 October 2017; and

(c)    a parent of the unauthorised maritime arrival has not made an application for a protection visa, within the meaning of section 35A of the Act, which has been refused and is finally determined within the meaning of the Act.

14    The materials before the Judge included a submission to the Minister dated 12 July 2017 in support of the making of the Determination. It referred to the then-existing practice of referring infants born to unlawful maritime arrivals to the Minister on a case by case basis for a determination to be made in accordance with s 46A(2) in relation to each child. The submission continued:

…

20.    To remove the need for you to make individual determinations and ensure babies can be easily included in their parents application ahead of the 1 October 2017 deadline, the Department has prepared section 46A bar lift instruments, with ongoing effect to allow any child born in Australia who is an IMA at birth to apply for a TPV or a SHEV, if you have previously allowed their parent to do so and they have lodged an application before 1 October 2017.

21.    Children born onshore to transitory persons require both the section 46A bar and the section 46B bar to be lifted before they can be processed with their parents. As these instruments cover children born onshore to transitory persons (Rudd returnees), instruments for consideration of your power to lift the section 46A and 46B bar, are at Attachment C and Attachment E and the Statements to Parliament at Attachment D and Attachment F.

22.    These generic determinations will not apply to children whose parents’ application for a protection visa has been refused both by the Department and at merits review. The Department believes it appropriate for you to continue considering those children, on a case by case basis, to allow you to make an assessment of their individual circumstances before allowing an application where the child’s parents have exhausted their claims.

(Emphasis in the original)

15    The Determination was made in the terms proposed in the submission.

16    The Determination was not “given to” the appellant as required by s 46A(2), although that circumstance was not relied upon by the Minister as a basis for arguing that it did not apply to the appellant. The Minister accepted that the Determination would operate to render s 46A(1) inapplicable to the SHEV application, provided that the SHEV application met each of the criteria in paragraphs (a), (b) and (c).

17    Paragraph (a) of the Determination was satisfied in the appellant’s case because an earlier determination had been made to permit the appellant’s mother to apply for a SHEV. As the Judge noted (at [33]), on 21 May 2017 the Minister had announced that all unauthorised maritime arrivals who had not yet lodged an application for a relevant visa were required to do so by 1 October 2017. Paragraph (b) was satisfied by virtue of the appellant’s mother having made a valid application for a SHEV on 23 November 2016.

18    At the time that the Determination was made, the application of the appellant’s mother had not been finally determined within the meaning of s 5(9) and s 5(9A) of the Act because a decision to refuse to grant the mother a visa was at that time subject to review by the Immigration Assessment Authority. On 28 August 2017, the Authority affirmed the decision to refuse to grant the mother a visa. As a consequence, the mother’s application had been finally determined when the appellant’s SHEV application was made on 12 September 2019.

The appellant’s submissions at first instance

19    At first instance (as on appeal) the parties differed as to the proper construction of the criterion in paragraph (c) of the Determination. The appellant submitted that the criterion was fulfilled because her mother’s application had not been finally determined as at the date that the Determination was made. The Minister argued that the criterion was not fulfilled because mother’s application had been refused and finally determined at the time that the appellant’s application was made.

20    The Judge set out the appellant’s submissions in some detail (at [37]) as follows:

(a)    The Court should find that a determination takes effect when it is made by the Minister, and not upon the making of a visa application. Any other construction obliterates the role of s 46A(2C).

(b)    Section 46A works so as to permit the Minister to determine that any current or future visa application made by a person is not barred by s 46A(1). There is nothing in the text or structure of s 46A that suggests that the determination only has legal effect once a visa application is in fact made or lodged. Rather, the provision works by changing the status of a person under s 46A(1) for the purpose of the Act, which change in status becomes relevant immediately. The person knows that they may now make a valid visa application if they otherwise meet the remaining criteria of validity. It is the change in status that happens upon the making of the determination, whether or not the person makes an application at all. When the visa application is lodged, all that happens is that it is not forbidden by s 46A(1).

(c)    Thus, on the applicant’s case, the bar under s 46A(1) was relaxed in respect of her on 26 July 2017, and that position had not changed when she lodged a Safe Haven Enterprise visa application on 12 September 2019. Accordingly, the Minister must consider this application by dint of s 47 of the Migration Act and reach a decision upon it under s 65. Indeed, this must be so because the operation of s 46A(2C) presumes that there has been an exercise of power, but no visa application.

(d)    The applicant’s mother’s Safe Haven Enterprise visa application was finally determined on 28 August 2017, which on the text of the determination might be thought to put the applicant outside of criterion (c) of the July 2017 Determination, as at the date of the applicant’s own Temporary Protection visa application. However, that is not so because a determination under s 46A cannot have an ambulatory operation of that kind. It may be possible, consistently with the terms and structure of s 46A, for the Minister to make a class-based determination which is ambulatory (or conditional) in its terms in respect of the lifting of the bar (i.e. the initial change of status). But, once the bar is lifted, the bar may not be lowered otherwise than in accordance with the procedures for lowering the bar set out in s 46A. That is, even though the initial lifting of the bar may be ‘ambulatory’ or ‘conditional’, the conditions thereof cannot work to change a person’s status again by lowering the bar except in compliance with the procedure set down by s 46A. The one caveat is s 46A(2A), which expressly permits the lowering of the bar upon the expiry of a ‘time period’ specified in the determination itself. This is not relevant in this case.

(e)    Section 46A(2C) expressly provides the mechanism by which a determination under s 46A(2) may be varied or revoked. The Minister must think that the variation of revocation is in the public interest – a state of mind that must be formed as at the time of the variation or revocation. The variation or revocation must also be in writing, and tabled in Parliament with reasons (s 46A(4)). The Minister must afford procedural fairness to a person prior to variation or revocation:  CLM18 v Minister for Home Affairs (2019) 373 ALR 147 (CLM18). This establishes an Anthony Hordern limitation in respect of the power to vary or revoke a determination – the procedure required by s 46A(2C) impliedly limits the ability to lower the bar, such that the only way that variation or revocation can take place – or put another way, the only way that a determination may cease to be in force in respect of a person – is in accordance with the requirements of s 46A(2C):  see Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (Anthony Hordern); Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 (Plaintiff S4/2014) at [43]. If it were otherwise, the procedure required by s 46A(2C) could be written out of the Migration Act by Ministerial determination.

(f)    Criterion (a) had an immediate effect at the date of the July 2017 Determination, but also ambulatory effect or conditional effect into the future. It would be engaged where a child had a parent who answered that description as at the date of the determination, or where a child comes to have a parent answering that description after the date of the determination. Its operation is limited to a lifting of the bar and does not have any capacity (on its terms) to work in a way that could lower the bar.

(g)    Criterion (b) had an immediate effect at the date of the July 2017 Determination, and a limited ambulatory effect or conditional effect into the future (to 1 October 2017) but, again, its operation is limited to a lifting of the bar, and does not have any capacity (on its terms) to work in a way that could lower the bar.

(h)    Criterion (c) is complicated. It could have had an immediate effect to raise the bar at the date of the July 2017 Determination, as it did for the applicant. On one reading, that is the end of the matter:  criterion (c) excludes children who fell afoul of that qualification as at the date of the determination and otherwise did not have any effect into the future. That reading is to be preferred. But it is not denied that criterion (c) is capable of tolerating a construction that would permit it to work in a way that led to a lowering of the bar after the bar had been raised (the ambulatory construction). On the ambulatory construction, a child born in Australia who met (a), (b) and (c) on one day, might cease to meet (c) on a later day in circumstances where that person has no control over (c) (e.g. when the Immigration Assessment Authority makes a decision in their parent’s case). Given that a construction of criterion (c) is open on the text of the determination that gives it meaningful work to do and better fits with s 46A, the Court should prefer the applicant’s construction of criterion (c). That is especially the case in the absence of evidence to indicate an ambulatory intention by the Minister. Further, the ambulatory construction is unlikely on the face of the determination because it is ungrammatical with the chapeau of the determination. The chapeau is cast in the present tense (‘I hereby determine’ that s 46A ‘does not apply’), indicating that the Minister thought that he was exercising power on 26 July 2017, in respect of a definite class of children.

(i)    The allowance of extra time to meet criterion (b) following the date of the determination is explained by the context of the wholesale lowering of the bar on 1 October 2017 discussed in CLM18. The primary concern of criterion (b) is the making of an application; the date of that application – before 1 October 2017 – is secondary. It is secondary because the action discussed in CLM18 meant that it was impossible for any unauthorised maritime arrival parent to have made a visa application after 1 October 2017 in any event (subject to the actual date when that took effect). The mention of a date in criterion (b), then, was subsidiary to the requirement that the parent make a visa application (before a date that was already made a condition of the parent making a valid visa application). Thus, although the applicant’s construction of the determination results in some grammatical awkwardness between criterion (b) and the chapeau, it is more harmonious than the ambulatory construction of criterion (c).

The reasons of the primary Judge

21    Rejecting those submissions, the Judge said that it was reasonably clear that all three of the criteria in the Determination were to be assessed at the time that the child’s visa application was made and not as at the date that the Determination was made [46]. His Honour identified six bases for that conclusion, namely:

40    First, the statutory context and the text of the determination indicate that it is concerned with the validity of applications rather than (as the applicant submits) a person’s status. Section 46A(1) refers to an ‘application’ for a visa not being a ‘valid application’. Section 46A(2) refers to subsection (1) not applying to ‘an application’ by the unauthorised maritime arrival. And s 46(1)(e)(ii) refers to s 46A as a provision going to the invalidity of a visa application. Further, the chapeau of the July 2017 Determination states that s 46A(1) does not apply to ‘an application’ by a person who is an unauthorised maritime arrival because of s 5AA(1A) (in general terms, a child of an unauthorised maritime arrival), indicating that the determination operates by reference to applications rather than affecting the status of the child. Thus, the statutory context and the text of the determination support the view that it is focussed on the validity of an application rather than a person’s status.

41    Secondly, paragraph (b) of the July 2017 Determination indicates that the criteria are to be applied when an application is made rather than as at the date of the determination. Paragraph (b) of the determination requires that any relevant visa application by a parent of the child ‘is made before 1 October 2017’. This criterion, self-evidently, may be satisfied by an event (the making of a relevant visa application by the parent) that takes place after 26 July 2017. This indicates that the criteria are to be applied as at the date when an application is made.

42    Thirdly, the respondents’ construction is supported by the object or purpose of the July 2017 Determination. As explained in the July 2017 Submission, the practice of the Department had been to refer ‘IMA babies’ to the Minister for consideration on a case by case basis as they became known to the Department; this usually occurred when their parents lodged an application that included a newborn child; to remove the need for the Minister to make individual determinations ‘and ensure babies can be easily included in their parents[’] application ahead of the 1 October 2017 deadline’, it was proposed to lift the bar ‘with ongoing effect’. This object is better achieved by reading the July 2017 Determination as setting out criteria to be satisfied at the time when an application is made rather than as at 26 July 2017. For example, if a visa application were lodged by a parent, and a child was included in the application, between 26 July 2017 and 1 October 2017, the child may be covered by the July 2017 Determination without the need to refer the individual case to the Minister for exercise of the power given by s 46A(2).

43    Fourthly, while the opening lines of the July 2017 Determination are expressed in the present tense, I do not consider this matter to be an indicator one way or the other. It is not unnatural to use the present tense in this context, even if the criteria are to be assessed at the time of the child’s visa application. In any event, as referred to above, the determination expressly refers to ‘an application’.

44    Fifthly, while there is perhaps some awkwardness in the language of paragraph (c), in that it uses both the words ‘has been refused’ and ‘is finally determined’, that awkwardness is present whichever construction is adopted. There is no practical difficulty applying the test in paragraph (c) at the time when the child lodges a visa application.

45    Sixthly, the applicant’s reliance upon the Anthony Hordern principle and variation or revocation under s 46A(2C) is misplaced. Section 46A(2C) is concerned with the revocation of a determination (such that it no longer exists in force) or the variation of a determination (so that it continues in force but in amended form). The July 2017 Determination does neither of these things. Rather, it identifies the domain of application of the determination. That does not trench upon s 46A(2C).

Disposition of the appeal

22    The appeal turns on a single point of construction.

23    The appellant’s submissions on the appeal on that point were the same as the submissions made before the Judge. They are correctly summarised in the extract at [20] of these reasons and it is unnecessary to repeat them. There is no suggestion that the Judge misapprehended the submissions or failed to give proper consideration to any part of them. Rather, the complaint was that the Judge should have adopted the construction of paragraph (c) of the Determination for which the appellant contended in preference to that advanced on behalf of the Minister.

24    We have concluded that paragraph (c) of the Determination should be construed in the manner explained by the Judge for the reasons which his Honour gave, as extracted at [14] above. It is not necessary to restate those reasons, nor to elaborate upon them. The Judge’s reasons are our reasons. There is no appealable error in the judgment appealed from.

25    It follows that the appeal should be dismissed.

The cross-appeal

26    As already noted, the respondents’ cross-appeal challenges the declaration that the appellant was denied procedural fairness in Ms Cassidy’s assessment on August 2019 that she did not engage Australia’s protection obligations. The consideration of the cross-appeal requires greater attention to the factual circumstances.

Factual setting

27    The appellant is a three year old girl born in Australia. She has been in detention pursuant (or purportedly pursuant) to ss 189 and 196 of the Act since 5 March 2018.

28    The appellant’s father and mother, who are Sri Lankan nationals, arrived in Australia by boat in 2012 and 2013 respectively. As already indicated, they are unlawful maritime arrivals within the meaning of s 5AA of the Act. By reason of their status as unlawful maritime arrivals, the appellant is also an unlawful maritime arrival, as is her sister who was born in Australia in May 2015.

29    The appellant’s family has been engaged in protracted litigation under the Act since 2012, as the summary which follows indicates.

30    Following the lifting of the bar under s 46A applicable in his case, the appellant’s father lodged an application for a Protection (Subclass 866) Visa on 23 July 2012. Some five weeks later, the father was granted a Bridging E (Subclass 050) Visa (BVE) under s 195A of the Act and released from immigration detention.

31    Following the refusal of his application for a Protection Visa on 6 September 2012, the appellant’s father sought review by the Refugee Review Tribunal (RRT). On 22 January 2013, the RRT affirmed the delegate’s decision. The appellant’s father then sought judicial review but was unsuccessful at first instance in the Federal Magistrates Court on 1 July 2014, on appeal to this Court on 3 November 2014, and in seeking special leave to appeal to the High Court, on 18 June 2015.

32    Following his lack of success in the judicial review proceedings, the appellant’s father made a request for Ministerial intervention under ss 48B and 417 of the Act. That request was refused on 14 September 2015.

33    The appellant’s mother had arrived in Australia on 2 April 2013 and had been detained under s 189(3) of the Act on Christmas Island. However, on 13 February 2014, the appellant’s mother was granted a Temporary Humanitarian Stay (Subclass 449) Visa and a BVE under s 195A of the Act and was then released from immigration detention. The appellant’s mother and father married in Australia in November 2014 and, as noted earlier, their first daughter was born in May 2015.

34    An application by the appellant’s mother for a SHEV lodged on 23 November 2016 (which named the older daughter and the appellant’s father as dependents) was unsuccessful. On 28 August 2017, the Immigration Assessment Authority (IAA) affirmed the refusal of the SHEV. The appellant’s family was then detained (on 5 March 2018).

35    The appellant’s mother sought judicial review in the Federal Circuit Court (the FCC) of the IAA decision but was unsuccessful (BEL18 v Minister for Home Affairs [2018] FCCA 1606), as she was on appeal to this Court (BEL18 v Minister for Home Affairs [2018] FCA 2103) and in her application for special leave to appeal to the High Court (BEL18 v Minister for Immigration, Citizenship, Multicultural Affairs [2019] HCASL 150). The decision on that application was made on 14 May 2019.

36    On 25 September 2018, a representative of the appellant (Mr Mahendren of the Tamil Refugee Council) emailed to the Minister for Home Affairs (Minister Dutton) a request that he lift the bar pursuant to s 46A(2) in respect of the appellant. Mr Mahendren provided a five page submission in support of his request. The accompanying documents included a petition said to have been signed by 136,561 people.

37    Mr Mahendren wrote again to Minister Dutton on 26 November 2018. He referred to the request that the Minister “lift the bar” and provided further information in support of its appropriateness.

38    The only response provided to Mr Mahendren appears to have been on 27 March 2019 when Ms Cassidy in the International Obligations and SHP Section in the Department sent an email to him, saying:

Dear Senthuren Mahendren

Thank you for your query regarding the progress of your request for ministerial intervention under section 46A(2) of the Migration Act 1958 for [the appellant].

The Department of Home Affairs (the Department) is currently considering the request. The Department will notify you of any outcome once finalised.

39    On 5 April 2019, Mr Baker, an Assistant Secretary in the Status Resolution Branch within the Department, provided a five page submission to the Minister for Immigration, Citizenship and Multicultural Affairs (Minister Coleman) together with a recommendation that the Minister “indicate whether you wish to exercise your non-compellable power under subsection 46A(2) of [the Act] to allow the Department of Home Affairs to grant a Bridging E (Subclass 050) Visa to [the appellant]” (the April Submission). The submission drew Minister Coleman’s attention to the fact that the appellant had been held in detention with her family for more than 12 months.

40    The April Submission stated that the appellant’s case was being referred to Minister Coleman for his consideration under s 46A(2) because the s 46A bar applicable to the appellant’s parents and sister had been lifted and they were able to apply for a Bridging Visa and because the resolution of their case was likely to be protracted. It is not apparent that the appellant’s parents and sister were able to apply for Bridging visas at that time, but nothing turns on that for present purposes.

41    Under the heading “Key Issues”, the April Submission referred to medical evidence, strong community support for the appellant and her family (a supporting petition of 3 April 2019 was said to have over 180,000 signatories), strong political support for the appellant’s position, as well as to “significant media attention”. In this respect, the April Submission stated:

[6]    In the past six months, the Department has received 170 letters of support to [the appellant] and her family involving at least 18 Members of Parliament and Senators. Two Senators, Senator of New South Wales, Jim Molan AO, DCS (MC18-011950 refers) and Senator for Queensland Larissa Waters (MC19-001923 and MC19-002330 refer) wrote directly to you.

[7]    The remaining MPs have written to you on behalf of their constituents, including the Deputy Prime Minister, the Hon Michael McCormack MP (MC19-001612 refers); the Federal Member of Warringah, the Hon Tony Abbott MP (MC19-002226 refers); the Federal Member of Curtin, the Hon Julie Bishop MP (MC19-006559 refers); the Federal Member for New England, the Hon Barnaby Joyce MP (MC19-001890 and MC19-001513 refer).

[8]    The Department notes that the family’s case has also received significant media attention.

42    The Key Issues section of the April Submission concluded with a positive recommendation from the Department that Minister Coleman exercise his power under s 46A(2):

[10]    As such, the Department of Home Affairs is seeking your Ministerial intervention power under subsection 46A(2) of the Act to allow [the appellant] to make a valid application for a BVE. This would allow the Department to consider her case in line with the rest of the family should they lodge an application for a BVE.

43    Under the heading “Background”, the April Submission referred to Mr Mahendren’s request, saying:

[14]    On 25 September 2018, [the appellant’s] agent made a request for Ministerial intervention under section 46A of the Act seeking the section 46A(1) of the Act application bar be lifted to allow her to lodge a valid application for a Temporary Protection (Subclass 785) Visa or a SHEV as she has never had her claims for protection assessed. The Department has yet to consider this request and will do so once the family’s matter in the High Court is determined.

44    Later, at [16], the April Submission continued:

[The appellant] is barred from making a valid onshore visa application under section 46A of the Act. You may consider it in the public interest to lift this bar and allow [the appellant] to lodge a BVE application. This will give her the same status as the rest of her family.

(Emphasis added)

45    Under the heading “Sensitivities”, the April Submission continued:

[23]    [The appellant] is a one year old child who has been in detention for more than 12 months with her parents and her three year old sister. Their continued detention may attract criticism from external bodies.

[24]    As highlighted above, [the appellant] and her family have strong community support and in the past six months alone, the Department has received 170 letters of support in relation to her family, including from Senators and MPs. The case has also attracted significant media attention.

46    The April Submission included the typed options “intervene/not intervene” and stated “if agreed, please sign the section 46A decision documents at Attachment A”.

47    It is to be noted that the recommendation of the Department in the April Submission was that the bar be lifted so as to enable the appellant to apply for a Bridging visa, not a Protection visa. It is also to be noted that the April Submission appears to have been provided to the Minister on the Department’s own initiative, rather than conveying to the Minister the requests of Mr Mahendren.

48    The evidence before the Judge did not indicate expressly the consideration (if any) given by Minister Coleman to the April Submission. On the copy of the April Submission in evidence, neither option (“intervene/not intervene”) had been circled and the Minister had not signed the April Submission in the place provided for that purpose. The Judge accepted the evidence of Ms Stubbs (the Director of the Ministerial Intervention Section of the Status Resolution Branch in the Immigration Integrity and Community Protection Division of the Department) that the Department’s document management system recorded that the April Submission had been returned to the Department on 13 June 2019 for “rebadging and updating” and that, ultimately, the Department had closed the file without further referral to the Minister, at [82]. Ms Stubbs deposed, and the Judge accepted, that the term “rebadging and updating” referred to the process by which documents which have not yet been actioned are updated following a change in Ministerial portfolio or title.

49    The Judge concluded that Minister Coleman had personally received and read the April Submission, at [83]. His Honour referred, amongst other things, to the following email exchange between Ms Stubbs and Mr Town, the Departmental Liaison Officer in the office of Minister Coleman. The exchange commenced on Tuesday, 9 April with Ms Stubbs seeking guidance as to the manner in which the Ministerial office would like the Department to respond to correspondence from Mr Andrew Wilkie MP concerning the appellant and her family:

50    The evidence at trial did not disclose the terms of the response given to Mr Wilkie MP.

51    The cross-appeal did not challenge the correctness of the finding that Minister Coleman had personally received and read the April Submission.

52    As will be seen shortly, on Friday 17 May 2019, the office of Minister Coleman requested the Department to prepare a submission concerning the appellant’s family.

53    The evidence at trial did not indicate any other action by Minister Coleman expressly in relation to the April Submission, at least before the Federal election conducted on 18 May 2019.

54    On Tuesday, 14 May 2019, the High Court refused to grant to the appellant’s mother and sister special leave to appeal against the dismissal by the Full Court of this Court of their appeal against the judicial review decision of the FCC.

55    In mid-May 2019, Carina Ford Immigration Lawyers commenced to act for the appellant. On 16 May 2019, Ms Ford wrote to Ms Cassidy at a departmental email address, submitting that the appellant had a strong sur place claim. Ms Ford referred in particular to the extensive media coverage given to the appellant’s presence in Australia and to her membership of a family of failed asylum seekers from Sri Lanka of Tamil ethnicity with purported connections with the Liberation Tigers of Tamil Eelam (LTTE). Ms Ford continued:

We re-attach the following:

  2.    initial letter requesting the bar be lifted dated 25 September 2018;

3.    correspondence dated 26 November 2018 regarding the request for the bar to be lifted.

We note that the last correspondence received from the department was an email issued by this section on 27 March 2019, advising that the Department of Home Affairs (“Department”) is still considering the above request. As such, please provide an update as to the status of the request, noting that the request was made to the Department on 25 September 2018.

56    Ms Ford went on to refer to medical issues from which the appellant suffers and provided supporting medical records. In addition, she provided an “assortment of various recent media articles” relating to one health condition of the appellant.

57    On Thursday, 16 May 2019, the Secretary of the Department of Home Affairs (Mr Pezzullo) sent an email requesting that the Assistant Deputy Secretary ICSG provide a “brief on next steps”, apparently in relation to the appellant’s family. Mr Pezzullo stated:

This is a high profile case which has proven to be reputationally problematical for the Department, notwithstanding the clear cut legal position. I should like the brief on my desk by Monday morning.

58    The evidence did not indicate what, if anything, had prompted Mr Pezzullo’s request.

59    On Monday, 20 May 2019, Mr Mansfield (the First Assistant Secretary of the Refugee, Citizenship, and Multicultural Programs Division in the Department of Home Affairs) sent an email to Ms Sharpe, the Chief of Staff to Mr Pezzullo, stating:

A draft submission for Minister Coleman is just being legally cleared and won’t be much longer – I am hoping within the hour. This incorporates both departmental and ABF input. As soon as it has been cleared I will send through the submission (as this is the best way for the Secretary to be appraised of all the issues with this case). I also spoke with Minister Coleman’s office on Friday to flag that we would provide briefing early this week (following a request from the office that we prepare a brief).

60    The request from the Minister’s office to which Mr Mansfield referred in the last sentence of this email had been made orally by Mr Ross Macdonald, a Senior Advisor to Minister Coleman, directly to Mr Mansfield. Mr Macdonald had requested a “full brief” on the appellant’s family.

61    On Tuesday, 21 May 2019, Mr Macdonald sent an email to Mr Mansfield, saying:

We spoke last week about a full brief on the issue of the [appellant’s family].

Could you please let me know how far off that one is? The Minster would like to reacquaint himself with the matter following the HC decision.

62    On Wednesday, 22 May 2019 at 11.18 am, Mr Mansfield’s office provided a submission addressed to Minister Coleman with the title “Ministerial Intervention Options – [Surname omitted] family Sri Lanka” (the First May Submission).

63    On the following day (23 May 2019 at 8.35 am), Mr Macdonald sent an email to Mr Mansfield in relation to the submission, saying:

Hi Luke

Thanks again for this.

I appreciate the options but was looking at more of a background/current situation/options rather than an MI [i.e. Ministerial intervention] focused brief.

Notwithstanding the issues around non-refoulement, can the brief be updated to include what work has been undertaken to date with respect to travel documents and [PII redaction].

It would be great if that supplemental info could be included today so I can discuss with the Minister ASAP.

Thanks again

R

64    In the affidavit containing his evidence in chief, Mr Macdonald gave the following explanation for his email of 23 May 2019:

[7]    This email reflects a discussion I had with Minister Coleman about the ministerial submission. I do not remember the specific details of what was said, but the discussion was to the effect that the request for information was not for a ministerial intervention options submission. That is, the request was not for options to allow the Minister to exercise a power to permit the applicant’s family to obtain visas. Rather, the request was purely for information to reacquaint himself with the detail of the applicant’s family’s case.

65    It is convenient to record now that the Judge did not accept this evidence of Mr Macdonald, saying, at [153]:

… In any event, the email confirms that what had been requested by Mr Macdonald on behalf of the Minister was a brief covering “background/current situation/options”. To the extent that Mr Macdonald gave evidence in his affidavit that “the request was not for options to allow the Minister to exercise a power to permit the applicant’s family to obtain visas” and that it was “purely for information [for the Minister] to reacquaint himself with the detail of the applicant’s family’s case”, for the reasons given at [96] above, I do not accept that evidence.

66    In [96], the Judge had given three reasons for not accepting this evidence of Mr Macdonald:

(i)    it was plain that Mr Macdonald had little or no recollection of relevant events;

(ii)    Mr Macdonald’s evidence went beyond the terms of his email of 23 May 2019 which had referred to the Minister seeking a brief covering, amongst other things, “options”; and

(iii)    it was unlikely that the revised submission subsequently provided by Mr Mansfield (Revised May Submission) would have contained recommendations that the Minister exercise the powers under ss 46A and 46B if the Minister’s request had been purely for information.

67    Further email exchanges occurred between Mr Mansfield and Mr Macdonald and between Mr Mansfield and Ms Sharpe. In an email sent at 5.48 pm on 23 May 2019 to Ms Sharpe, Mr Mansfield said:

Sophie – just to update you on this one:

After the submission regarding the [surname omitted] family ([town name omitted]) was provided to the Minister’s office, the office contacted me and requested some additional information be included [PII redaction] and detail on travel document issuance, be covered in the brief.

We have pulled and updated the brief to reflect that detail and a revised version will go up tomorrow. Both FAS International and General-Counsel have been consulted in relation to those changes. Once the brief goes back up, I will suggest to the office that I take the office and the Minister through the issues verbally given the complexity and sensitivities.

The only other development is that the legal representatives for the family have been contacting the department (our legal area) multiple times seeking assurances that we will not remove the family.

Kind regards

Luke

(Emphasis added)

68    The Judge noted at [100] that there was no direct evidence as to whether Mr Mansfield had met with the Minister and his office to take them through the issues, as he had foreshadowed in this email.

69    The Revised May Submission was sent by email to Mr Town (the Departmental Liaison Officer in the Minister’s office) on Friday, 24 May 2019. The accompanying email stated:

Hi Jarrad,

As discussed, please find attached an updated version of MS19-001313 and attachments as requested by Ross Macdonald. This version has been cleared by FAS, Refugee, Citizenship and Multicultural Programs Division, Luke Mansfield. Grateful if you can provide a hard copy of this package to Ross.

Ministerial Support will load the updated documents into PDMS

Please call if you need anything further.

Thanks Jarrad.

Kind regards

Georgie

(Emphasis added)

70    As the Judge noted, the Revised May Submission was a substantial document comprising 62 numbered paragraphs over 11 pages in addition to seven attachments. We will refer to the content of the submission later. We note, however, at this stage that it contained recommendations that Minister Coleman lift the s 46A(2) bar for both the appellant and her family:

Recommendations

That you:

AND

71    In [54] of the Revised May Submission, the Department made a positive recommendation:

The Department recommends that you intervene to lift the bar for the Temporary Protection (Class XD) visa and the Safe Haven Enterprise (Class XE) visa for the whole of [the appellant’s] family and a Bridging (General) (Class WE) visa for the appellant.

72    On 29 May 2019, following the Federal Election held on 18 May 2019, Minister Coleman was appointed by the Governor-General to hold the office of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and to administer the Department of Home Affairs.

73    The Judge found that Minister Coleman had not completed the recommendation pages in the Revised May Submission.

74    The Judge accepted evidence that the Department’s document management system contained the following entry on 29 May 2019 for the Revised May Submission:

Sub returned to Department to be finalised as NFA at request of senior advisor.

75    The Judge also accepted that “NFA” indicated “no further action”.

76    Mr Macdonald’s evidence in relation to this record was:

I do not recall reviewing the revised copy of MS19-001313 or discussing it with the Minister. I would be the senior adviser referred to because the only other senior adviser in the office was not working this file. I do not remember asking for it to be marked as NFA or discussing the submission with the Minister. But every action I take is at, or consistent with, directions of [the Minister for Immigration]. I would not have marked this submission as requiring NFA unless [Minister Coleman] had indicated that that is what he wanted.

77    It is the finding of the Judge that Minister Coleman had, some time before the apparent return of the submission on 29 May 2019, determined to consider lifting the s 46A(2) bar as recommended in the Revised May Submission which is impugned by the respondents on the cross-appeal.

78    After 29 May 2019, very little seems to have happened in the Department in relation to the appellant and her family until late July 2019. Commencing on 23 July 2019, the Department began preparing “talking points” for use in an anticipated meeting between Minister Dutton, Mr Pezzullo and others. The evidence did not disclose whether that meeting occurred or its content. From 23 July 2019, the actions in the Department seem, in general, to have been related to the anticipated removal from Australia of the appellant and her family. A Departmental minute, prepared on 2 August 2019 concerning the pre-removal clearance in relation to the appellant’s father, noted that “[o]n 29 May 2019, the referral was finalised at the request of the Minister’s office as not requiring further action”.

79    On 21 August 2019, Ms Cassidy made a determination not to refer the appellant’s “request” (apparently Mr Mahendren’s request for the lifting of the s 46A(2) bar) to the Minister. Ms Cassidy noted in her determination that “a [s]ection 48B request was finalised at the request of the Minister’s office as not requiring further action”.

80    Ms Cassidy notified the appellant of her decision by a letter of the same date (copied to Ms Ford). This appears to have been the first communication to the appellant and Ms Ford since the Departmental letter to Mr Mahendren of 27 March 2019. In the letter, Ms Cassidy stated:

Dear [appellant]

Outcome of request for Ministerial Intervention

I am writing to advise you of the outcome of your request for Ministerial Intervention for:

…

This request has been assessed against the Minister’s guidelines on ministerial power (s46A) 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 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.

81    It was common ground at first instance that, in making this determination, Ms Cassidy had not provided the appellant with procedural fairness.

82    On 29 August 2019, the Department gave notice to the appellant’s family and to her legal representative of the intention to remove the family from Australia. That led to the commencement in this Court of proceedings seeking an injunction restraining the removal and to renewed public and media interest in the appellant’s claims.

83    Despite the decision on 21 August 2019, the Department did, on or before 3 September 2019, refer the appellant’s matter to the Minister for him to consider whether he was inclined to consider exercising his personal non-compellable public interest power under s 46A(2) of the Act with respect to the appellant. The submission commenced with a recommendation page, the contents of which were:

84    The Minister (it seems that it may have been Minister Dutton) circled “noted” in relation to the first recommendation and “not consider” in relation to the second recommendation. The Minister signed and dated the first page of the submission with the date 3 September 2019.

85    The submission to the Minister commenced with a paragraph stating that it related to “a request made on behalf of” the appellant and noted her membership of a family group. After referring to the issue of an injunction restraining the removal of the appellant and her family from Australia before 4 September 2019, the submission continued:

[3]    It is open to you to consider exercising your non-compellable and non-delegable public interest powers under the Act to intervene in this case to allow [the appellant] to lodge a protection visa application if you think it is in the public interest to do so. Should you be inclined to consider intervening under section 46A(2), the Department would refer a submission to you for your decision.

…

[5]    [The appellant’s parents and her sister] have had their protection claims assessed through a statutory visa process and have been found to not engage Australia’s protection obligations. This finding has been upheld by merits review bodies (the RRT and the IAA), whose decisions have not been set aside in judicial review proceedings in the courts.

…

[7]    The Department has considered [the appellant’s] protection claims as part of a section 46A(2) guidelines assessment. The assessment concluded that the claims raised are unlikely to engage Australia’s non-refoulement obligations.

(Emphasis in the original)

86    The submission then reminded the Minister of his power under s 46A to lift the bar and, under the heading “Matters that you may wish to consider”, continued:

[26]    The power in section 46A(2) is exercisable by you personally. You may exercise that power if you think it is in the “public interest” to do so.

[27]    Matters which you may consider to be relevant to deciding whether you are inclined to consider exercising the power in section 46A(2) include the following:

•    In the current Federal Court proceedings, [the appellant] challenges the departmental officer's decision not to refer [the appellant’s] request under section 46A(2) to you for your consideration on the basis that her parents were referred for consideration of the public interest power under section 46A(2) and she is a member of their family unit. The Department has now determined to refer this matter to you for you to consider whether you wish to consider exercising your power.

•    In [the appellant’s] request, she claims that she has protection claims that have not yet been considered by any process or body. You should be aware that if you decide not to consider exercising power under section 46A(2) to lift the application bar, then in the ordinary course it would be expected that [the appellant] would be removed from Australia without any statutory process or body having considered her claims.

•    [The appellant’s] claims have been considered by officers of the Department. The assessment of those officers is summarised above. You may consider those assessments, the possibility that they are wrong and the strength of [the appellant’s] claims.

•    You may determine that you are not inclined to consider exercising the power under section 46A(2) whether or not the Department’s assessment is correct and whether or not [the appellant] has had her claims considered by a statutory process or body.

•    …

The findings of the primary Judge

87    The Judge found that Minister Coleman had made a decision in mid-May 2019 to consider exercising the power to lift the s 46A(1) bar in respect of the appellant, at [14(b)], [147], [157].

88    Minister Coleman did not give evidence in the trial. The evidence indicating that he had made such a decision was accordingly circumstantial.

89    The Judge considered that a number of matters supported the inference, including that:

(a)    Mr Macdonald, Minister Coleman’s senior advisor dealing with the appellant’s family, had requested Mr Mansfield in the days after 14 May 2019, to provide “a full brief on [the appellant’s] family”, at [150]. Mr Macdonald referred to this request in an email to Mr Mansfield on 21 May 2019 “[w]e spoke last week about a full brief on the issue of” the appellant’s family;

(b)    it was to be inferred that, in making that request, Mr Macdonald was acting on the instructions of Minister Coleman, at [151]. This was so because:

(i)    Mr Macdonald’s evidence at trial had been that he did not have any independent recollection of having spoken to Minister Coleman about the appellant’s family in the week of 14 May 2019 but that his statement to Mr Mansfield “would reflect what [Minister Coleman] asked me to action”, at [151];

(ii)    Mr Macdonald had also given evidence that “every action I take is at, or consistent with, directions of [Minister Coleman]”, at [151]; and

(iii)    there was no evidence suggesting that Mr Macdonald had not been acting on Minister Coleman’s instructions when requesting the preparation of a full brief, at [151]; and

(c)    as at 14 May 2019 when the High Court dismissed the application for special leave to appeal made by the appellant’s mother, the Department had not conducted any substantive assessment of the appellant’s own claims, at [148].

90    The Judge also inferred from a number of matters that Minister Coleman had requested that the “full brief” from the Department include the option that he may exercise his power to lift the applicable bars to enable the appellant’s family to apply for protection visas, at [152]. His Honour referred first to the content of the submissions which the Department provided, considering it improbable that both the First May Submission and the Revised May Submission would have included recommendations that the Minister exercise the power to lift the applicable bars had it not been requested to include that option. The Judge considered it pertinent in this respect that the Revised May Submission contained not only recommendations for the lifting of the applicable bars, but detailed reasons for that course together with the documents which would need to be signed if the Minister did decide to exercise those powers. His Honour said of this part of the submission that:

This level of detail and attention to the exercise of the relevant powers suggest that the Minister requested that the full brief include this option. Moreover, the [Revised May Submission] went further, and included recommendations that the Minister agree to consider exercising his non-compellable power under s 195A of the Migration Act to grant to each of the members of the applicant’s family a substantive visa to remain in Australia.

91    Secondly, the Judge accepted that Mr Macdonald’s statement in his email of 23 May 2019 that he “was looking at more of a background/current situation/option” brief rather than an “MI focussed brief” could suggest that the Minister’s interest in exercising the powers to lift the applicable bars had waned by 23 May 2019. However, the Judge did not accept Mr Macdonald’s evidence to the extent that he had said that “the request was not for options to allow the Minister to exercise a power to permit the applicant’s family to obtain visas” but was instead “purely for information [for the Minister] to reacquaint himself with the detail of the applicant’s family case”.

92    The third matter which the Judge regarded as supporting the inference that the Minister had sought a full brief, including the option for him to exercise the powers to lift the applicable bars, is that it was unsurprising, in context, that the Minister would request that the full brief include such options. Relevant parts of the context were that the Department had not, as at 14 May 2019, conducted any substantive assessment of the appellant’s protection claims or any further assessment of new information relating to the appellant’s father and the high public profile of the appellant’s family.

93    Finally, the Judge considered that the absence of any contrary evidence from Mr Mansfield concerning the terms of the request made to him for a full brief concerning the appellant’s family in circumstances in which it could be expected that he could have given evidence concerning that issue, supported a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference, at [155].

94    Having regard to all these matters, the Judge concluded:

[157]    For these reasons, it is to be inferred that, in the days after 14 May 2019, the Minister for Immigration requested the Department to prepare a full brief on the issue of the applicant’s family, including the option that the Minister exercise his powers to lift the applicable bars to enable the applicant’s family to apply for protection visas. Thus, the Minister made a decision to consider exercising the power in s 46A(2) to enable the applicant to apply for a protection visa.

Considering “lifting the bar” and procedural fairness

95    Section 46A and its cognates have been considered by the High Court and by the Full Court of this Court in a number of decisions. These include Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41, (2010) 243 CLR 319 (the Offshore Processing Case); Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31, (2012) 246 CLR 636 (Plaintiff S10); Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34, (2014) 253 CLR 219 (Plaintiff S4); Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29, (2016) 259 CLR 180 (SZSSJ); CLM18 v Minister for Home Affairs [2019] FCAFC 170, (2019) 272 FCR 639.

96    In the Offshore Processing Case, the High Court held unanimously that the decision (which in that case had undoubtedly been made by the Minister) to consider whether the power under s 46A or s 195A should be exercised was an exercise of statutory power affecting directly the rights and interests of those who were the subject of the assessment, and thereby attracted the requirements for procedural fairness, at [62]-[67] and [76]-[79]. This was so because the consideration of the exercise of the power under s 46A had the effect of prolonging the individual’s detention for as long as the assessment took to complete. At [78], the High Court said:

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". 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.

(Citation omitted and emphasis in the original)

97    As this passage makes plain, it is the steps taken to inform the Minister’s consideration of the exercise of power which attract the requirements of procedural fairness and not the Minister’s decision itself.

98    In SZSSJ, the High Court summarised three principles to be drawn from the Offshore Processing Case and from Plaintiff S10 concerning the construction and application of ss 48B, 195A and 417 of the Act. Like the Judge, we consider these principles equally applicable to s 46A(2).

99    First, s 46A confers a non-compellable power to be exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister is not obliged to make either decision and neither decision is conditioned by any requirement that the Minister afford procedural fairness, at [53].

100    Secondly, when the Minister does decide to consider exercising the power to lift the s 46A(1) bar, processes undertaken by the Department to assist that consideration have a statutory basis in that prior procedural decision: Offshore Processing Case at [70], [73], [77]-[78]; SZSSJ at [54]. As the Judge noted at [52], in such circumstances, a protection obligation assessment is subject to the established principles governing the way in which such assessments are to be conducted, including the rules of procedural fairness when applicable: Offshore Processing Case at [73]. However, if the Minister has not made a decision to consider exercising the power to lift the bar, the Departmental processes will not be characterised as statutory and the principles of procedural fairness will not generally apply: Plaintiff S10 at [41], [45]-[46].

101    In SZSSJ, the Court stated the position at [54]:

[P]rocesses undertaken by the Department to assist in the Minister's consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done.  If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister's consideration has a statutory basis in that prior procedural decision of the Minister.  Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention.  If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness. 

102    Thirdly, the question of whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact: SZSSJ at [55].

The notice of cross-appeal

103    The respondents’ cross-appeal contains two grounds:

1.    The primary judge erred in finding that the first respondent made a decision to consider exercising power under s 46A(2) in favour of the appellant in mid-May 2019.

2.    In the alternative to cross-appeal ground one, the primary judge erred in not finding that returning the May 2019 Submission to the Department to be finalised No Further Action constituted the first respondent deciding not to exercise power under s 46A(2) in favour of the appellant.

104    As is apparent, both of these grounds seek to impugn factual findings made by the Judge.

105    The required approach to appeals of this kind is settled: Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 at [25]-[29]; Lee v Lee [2019] HCA 28, (2019) 266 CLR 129 at [55]. Save for the fact that both Ms Stubbs and Mr Macdonald were cross-examined, the whole of the evidence at first instance was documentary. The Judge accepted the evidence of Ms Stubbs, noting that the appellant raised no challenge to it. The Judge recorded that Mr Macdonald had little recollection of the relevant events but, save for some particular matters, accepted his evidence. Accordingly, providing that this Court respects the advantage which the Judge had in the assessment of the evidence of Mr Macdonald, it is in as good a position as the Judge in drawing inferences from the evidence.

The respondents’ submissions – Ground 1

106    The respondents did not take issue with the Judge’s conclusion at [147] that, in the days after 14 May 2019, Minister Coleman had requested the Department to prepare a “full brief” on the appellant’s family. That was in any event the evidence of Mr Macdonald.

107    Ground 1 in the cross-appeal challenges the Judge’s further finding that Minister Coleman’s request for a full brief included a request for a brief on the options of exercising his power to lift the applicable bars to enable the appellant’s family to apply for protection visas and therefore that the Minister had made a decision to consider exercising the power in s 46A(2) to enable the appellant to apply for such a visa.

108    Counsel contended, first, that the Judge had not provided any “justification” for reasoning that the inclusion of Ministerial intervention options in the Revised May Submission “necessarily meant” that a procedural decision to lifting the bar in respect of the appellant had been made. This was said to be an error either because the Judge had assumed that to be so without analysis, or had failed to give reasons for his conclusion.

109    This submission can be disposed of immediately because it is in the nature of a “straw man” argument. The Judge’s reasons were not based on inferences of logical necessity. Instead, the Judge reasoned by a process of factual inference. Although his Honour did not use the expressions “circumstantial evidence” or “circumstantial case”, it is very evident that he reasoned in the manner of a conventional case of that kind, drawing inferences from uncontested or found facts, assessing those inferences against the probabilities and likelihoods of them being accurate, and then assessing them for their combined strength. The Judge had noted at [56] that this is commonly the way in which such decisions must be reached.

110    We also specifically reject the submission that the Judge did not provide reasons for his conclusion: on the contrary, the reasons for judgment reveal careful attention to the evidence and a proper disclosure of the Judge’s reasoning process.

111    The respondents then advanced seven matters as indicating error in the Judge’s reasoning.

112    The first submission focused on the inferences which the Judge had drawn from the content of the Revised May Submission. The respondents noted that the submission contained a range of Ministerial intervention options, addressing not only the appellant but each member of her family. This meant, they submitted, that if the Judge was correct, it would follow that the Minister had made a procedural decision in relation to each member of the family and, further, had done so under different provisions of the Act: s 46A in the case of the appellant and s 48B and/or s 195A in the case of her parents and sister. They submitted that such a conclusion was “glaringly improbable” and that it was more natural to understand Minister Coleman as having been seeking a full brief in order to be informed “of the full gamut of options so as to decide on which, if any, course to embark upon considering further”.

113    Secondly, the respondents emphasised the statement of Mr Macdonald in his email of Tuesday, 21 May 2019 that “the Minister would like to reacquaint himself with the matter following the HC decision”. They submitted that this suggested that, in seeking a “full brief”, the Minister was seeking only to re-familiarise himself with the matter, rather than indicating that he had decided to consider exercising the power under ss 46A(2), 46B or 197A.

114    As part of this submission, the respondents also contended that the Judge had been wrong to reject Mr Macdonald’s evidence that the Minister’s request had not been for “options”, but instead had been “purely for information to reacquaint himself with the detail of the appellant’s family’s case”. They submitted that Mr Macdonald’s account was consistent with the contemporaneous emails and, in any event, that the inclusion of options in the submission was not inconsistent with the purpose for which the Minister had sought the “full brief”.

115    Thirdly, the respondents impugned the Judge’s statement in [153] that Mr Macdonald’s response to Mr Mansfield on 23 May 2019 (“I appreciate the options but was looking at more of a background/current situation/options rather than an MI focused brief”) suggested some waning of interest by the Minister in exercising a power to lift the applicable bars. They contended that this was an implausible reading of the email.

116    Fourthly, the respondents submitted that the fact that the appellant’s claim for protection, and the new information concerning her father, had not been considered did not provide any basis on which to infer that a procedural decision to consider lifting the respective bars had been made.

117    Fifthly, the respondents submitted that the Judge had been wrong in drawing a Jones v Dunkel inference from the failure of the respondents to lead evidence from Mr Mansfield concerning the preparation of the two submissions in May 2019. They submitted that no Jones v Dunkel inference could be drawn that would be informative of Minister Coleman’s reasons for asking that the brief include options and, in particular, whether a procedural decision had been made by him before doing so.

118    Sixthly, the respondents submitted that the Judge should have inferred from the fact that Minister Coleman had circled neither “agreed” nor “not agreed” to the Department’s recommendations was consistent with him not having made an anterior procedural decision. Had the Minister made such an anterior decision, it would have been natural for him to have circled one or other of these options.

119    Finally, the respondents submitted that Minister Coleman’s decision not to consider exercising the power under s 46A(2) on 3 September 2019 was inconsistent with him having made a contrary decision only four months earlier.

Consideration – Ground 1

120    We commence by noting that the procedural decision by a Minister to consider exercising the s 46A(2) power need not be made formally or in any particular form. A Minister may make such a decision by resolving mentally to consider the exercise of the power and without recording that decision in writing. As with the determination of the state of mind of a person in many contexts in the law, the determination of whether a Minister has made the decision will turn on an assessment of the Minister’s words and conduct having regard to all the surrounding circumstances.

121    It is also convenient to address at the outset the submission of the appellant that a Jones v Dunkel inference should have been drawn by the Judge by reason of the failure of the respondents to lead evidence from Minister Coleman concerning his consideration of the appellant’s circumstances and, in particular, whether he had decided to consider exercising his power to lift the s 46A(1) bar. The Jones v Dunkel principle was explained by the plurality in Kuhl v Zurich Finance Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361:

[63]    The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case.  That is particularly so where it is the party which is the uncalled witness.  The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn …

[64]    The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party …

(Citations omitted)

122    The rule in Jones v Dunkel does not permit courts to use the unexplained failure to call a witness as a means of filling evidentiary gaps or to convert conjecture into inference: Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 at [115]-[117].

123    There are two reasons why the appellant’s submission concerning the respondents’ failure to lead evidence from Minister Coleman is to be rejected. The first is that is properly a matter to have been raised by a notice of contention, and the appellant did not file such a notice.

124    Secondly, and more substantively, the lack of evidence from Minister Coleman was not unexplained. There was evidence at the trial (and ultimately it was common ground) that Minister Coleman had been continuously on personal leave from his Ministerial office from the end of October 2019 until the time of trial (21 and 25 February 2020). Although the circumstances giving rise to Mr Coleman taking the personal leave were not disclosed, it can be inferred that a Minister in the Australian Government would not take such personal leave for such an extended period if it were not for reasons of necessity. That being so, it should be inferred that Minister Coleman was not available to give evidence at trial. It is understandable that in these circumstances the Judge did not accede to the appellant’s submission that a Jones v Dunkel inference should be drawn against the respondents by reason that they had not adduced evidence from him.

125    As will be seen, however, we take a different view in respect of the respondents’ failure to lead evidence from Mr Mansfield concerning the request of Minister Coleman for a full brief.

126    Our “real review” of the evidence at trial and of the Judge’s reasons satisfies us that the Judge did not err in concluding that Minister Coleman had, in or before May 2019, made a decision to consider exercising the power to lift the s 46A(1) bar in respect of the appellant.

127    First, the fact that Minister Coleman did request in the days after 14 May 2019 that the Department prepare a “full brief” on the appellant’s family is significant. Three aspects of that request are pertinent: the request emanated from Minister Coleman personally; it was a request for a “full brief”; and the full brief was to be about the appellant’s family and not just the appellant. It suggests that Minister Coleman was giving close consideration to the circumstances of the appellant and her family.

128    Secondly, Minister Coleman made the request in the context of having (on the Judge’s uncontested finding) personally received and read the April Submission. That Submission contained the Department’s seemingly strong recommendation, made on its own initiative, that the Minister lift the bar in relation to the appellant. It is natural to infer that the Submission and that the Departmental recommendation would have led Minister Coleman to consider whether he should lift the s 46A(1) bar applicable to her. At the time Minister Coleman requested the “full brief”, he had not resolved the April Submission.

129    The Minister’s unresolved consideration of the April Submission is also pertinent to the respondents’ submission that it was glaringly improbable that Minister Coleman had made a procedural decision in relation to each member of the appellant’s family, as was implicit in the Judge’s reasons. In our view, that submission overlooks the fact that the Minister had received in the April Submission a specific recommendation from the Department itself that the bar be lifted in relation to the appellant, and that the appellant at that stage was less than three years old (and accordingly in need of parental care). It would have been obvious to the Minister that a decision to lift the bar in relation to her would require consideration of options available to her parents. Accordingly, we do not accept the respondents’ submission that it was “glaringly improbable” that the Minister had made a procedural decision in relation to each member of the appellant’s family.

130    The evidence at trial did not indicate whether Minister Coleman had, at the time of requesting the full brief, been personally informed of the High Court’s refusal of a grant of special leave to appeal to the appellant’s mother on 14 May 2019. It is accordingly unclear whether knowledge of that refusal played any part in his decision to request a full brief. However, Mr Macdonald’s email of 21 May 2019 (which stated that the Minister wished to “reacquaint himself with the matter following the HC decision”) implies that the Minister had been made aware of the refusal of special leave to appeal and that it prompted his request. In our view, the circumstances that the Minister was prompted to seek the full brief concerning the appellant’s family on learning of the High Court decision supports the inference that he did so in the context of, and in connection with, his consideration of the express Departmental recommendation in the April Submission that the s 46A(1) bar be lifted in respect of the appellant.

131    Thirdly, like the Judge, we consider that some inferences as to the content of the Minister’s request (conveyed through Mr Macdonald on 17 May 2019) for a “full brief” can be drawn from the submission prepared by the Department in response to that request. Indeed, it is natural to infer that the Departmental submission was responsive to the request made of it. This is in any event made apparent by the opening sentence in each of the submissions provided to the Minister’s office in May 2019:

As requested, this submission outlines possible options for Ministerial intervention for [the members of the appellant’s family].

(Emphasis added)

132    The submissions, including the Revised May Submission, then proceeded to do just that, namely, set out possible options for Ministerial intervention. As previously noted, these included that Departmental recommendation that the Minister “intervene to lift the bar for the Temporary Protection (Class XD) visa and the Safe Haven Enterprise (Class XE) visa of the whole [of the appellant’s family] and a Bridging (General) (Class WE) visa for [the appellant]”. This is highly suggestive that the Department was providing the Minister with exactly that which he had requested.

133    It is convenient to address at this point the respondents’ submission that the Judge had been wrong to reject Mr Macdonald’s evidence concerning the content of the Minister’s request. That rejection was in part a credibility based finding. It is a matter on which this Court should, in accordance with usual appellate principles, respect the advantage which the Judge had in seeing and hearing Mr Macdonald give the evidence.

134    In our view, this adverse finding by the Judge cannot be regarded as “glaringly improbable” or inconsistent with other incontrovertible facts. In the first place, Mr Macdonald’s asserted lack of memory about his interactions with Mr Coleman seems surprising. That is especially so given that the claims of the appellant and her family can hardly have been matters of routine in the Minister’s office. The high public profile of the appellant’s claim, the considerable public support for her and her family, and the concerns of constituents communicated by senior political figures (including the Deputy Prime Minister, the Honourable Julie Bishop MP, the Honourable Tony Abbott MP, and the Honourable Barnaby Joyce MP) would have meant that that was so. These circumstances made it surprising that Mr Macdonald had such a limited recollection. It is understandable that the Judge had concerns about this aspect of Mr Macdonald’s evidence.

135    Earlier, we set out part of Mr Macdonald’s evidence about his email of 23 May 2019. For convenience, we repeat it here:

[7]    This email reflects a discussion I had with Minister Coleman about the ministerial submission. I do not remember the specific details of what was said, but the discussion was to the effect that the request for information was not for a ministerial intervention options submission. That is, the request was not for options to allow the Minister to exercise a power to permit the applicant’s family to obtain visas. Rather, the request was purely for information to reacquaint himself with the detail of the applicant’s family’s case.

[8]    As with Annexure RM2, my email to Mr Mansfield would have reflected directions by Minister Coleman to me.

136    There are a number of difficulties with this evidence. The first is its lack of specificity. The second is that Mr Macdonald does not make plain the “request” to which he is referring: was it the original Ministerial request which he conveyed to Mr Mansfield on or shortly after 14 May 2019; alternatively, was it a request which immediately preceded Mr Macdonald’s email of 23 May 2019? The third is the conclusionary terms in which Mr Macdonald expressed the evidence.

137    In all these circumstances, the Judge’s decision not accept Mr Macdonald’s evidence and, instead, to rely on the implications arising from the words used (namely, that the email confirmed that the Minister had sought a brief concerning “background/current situations/options”) was appropriate. We see no error in the Judge’s rejection of this aspect of Mr Macdonald’s evidence.

138    In any event, a desire by the Minister to “reacquaint” himself with the detail of the appellant’s family’s circumstances in the light of the decision of the High Court, is not inconsistent with the Minister having earlier made a procedural decision to consider lifting the bar(s). On the contrary, it is consistent with the Minister wishing to continue his consideration but in the light of the contemporaneous circumstances.

139    It is also convenient to address at this point the respondents’ submission that the Judge had been wrong to draw a Jones v Dunkel inference from their failure to adduce evidence from Mr Mansfield. It is pertinent to this submission to note that Mr Mansfield was the person in the Department who had received the request from Mr Macdonald that the Department provide a full brief. It is reasonable to suppose that he could have given evidence concerning the actual terms used by Mr Macdonald in conveying the Minister’s request. Given Mr Macdonald’s evidence that his actions reflected Minister Coleman’s directions, evidence of the precise terms of the request is likely to have assisted the Court in making a finding concerning the content of the Minister’s direction to Mr Macdonald and, accordingly, as to Minister Coleman’s then state of mind. This being so, we do not accept the respondents’ submission that evidence from Mr Mansfield could not have assisted the Court in reaching a decision as to Minister Coleman’s reasons for requesting the full brief.

140    We turn to the respondents’ submission that there was no evidentiary basis for the Judge’s reasoning, at [152], that it was improbable that each of the two May submissions would have contained positive recommendations that the Minister exercise his powers to lift the applicable bars so as to allow the appellant’s family to apply for Protection visas unless the Minister had requested that the submission include that option. In support of this submission, the respondents contended that the evidence had disclosed a practice by the Department of including recommendations and submissions even before the Minister had decided to consider exercising the power to lift the bar. Counsel submitted that the Judge had noted this practice at [77] of his reasons. However, the practice to which the Judge had referred at [77], was the practice of the Department preparing “first stage” and “second stage” submissions (the April Submission was an example of the latter).

141    As part of this submission, the respondents also contended that the Judge had been wrong to attach significance to the detailed reasons provided by the Department in the Revised May Submission and to the inclusion of the documents which would have to be executed by the Minister if he accepted the recommendations.

142    It is the fact that the April Submission had been prepared by the Department without a request from the Minister and that it did include a recommendation that the s 46A(1) bar be lifted in respect of the appellant (so as to permit her to apply for a Bridging visa). However, in our view, that is well short of establishing or evidencing the Departmental practice to which counsel referred. But even if that point be put to one side, there was an evidential basis for the reasoning of the Judge which the respondents impugned in this decision. We refer again to the express statement with which each of the May Submissions commenced, namely, that it contained the possible options for Ministerial intervention “as requested”. Accordingly, this was not a case of the perhaps more usual kind of the Department providing unsolicited recommendations. Like the Judge, we consider that the Department’s inclusion of the documents which the Minister would have to execute if he was to act on the Departmental recommendation is supportive of the inference that it was doing so as part of its response to the express request made by the Minister.

143    Counsel also critiqued the Judge’s reliance, at [152], on the fact that each of the submissions prepared in May 2019 had included recommendations that the Minister agree to consider exercising his non-compellable power under s 195A of the Act to grant each member of the appellant’s family a substantive visa. Counsel submitted that it was ‘difficult to see why this makes it more probable that the Minister had made a procedural decision under s 46A” and that “the more likely inference … is that the Department was unsure what the Minister might be interested in and so it did a detailed submission that covered the field”.

144    In our view, this submission overlooks the different manner of expression which the Department used in its recommendations concerning the lifting of the s 46A and s 46B bars, on the one hand, and the exercise of the s 195A power, on the other. In the case of the former, the Department recommended that the Minister exercise those powers whereas, in the case of the latter, it recommended only that the Minister “agree to consider exercising” that power. That is consistent with an understanding by the Department that the Minister had already decided to consider exercising the s 46A and s 46B powers, but had not made such a decision with respect to s 195A.

145    We accept that more than one inference may be drawn from Mr Macdonald’s email of 23 May 2019 in which he told Mr Mansfield that, while he “appreciate[d] the options”, he was “looking at more of a background/current situation/options” rather than a “MI focused brief”. One possible inference is that the Department (probably Mr Mansfield) had misunderstood Mr Macdonald’s original request for a full brief. Another is that the outcome of the Federal election which occurred on 18 May 2019 had led to some change of attitude by the Minister. The Judge appears to have been adverting to this possibility when he said that Mr Macdonald’s email could suggest some waning of interest by Minister Coleman in lifting the applicable bars, at [153]. We note that his Honour did not express any conclusion about that possibility. Given his rejection of Mr Macdonald’s evidence concerning the content of the request made by the Minister (apparently the request immediately preceding Mr Macdonald’s email of 23 May 2019), it was not necessary for the Judge to do so.

146    In the oral submissions, counsel for the respondents contended that the Judge had been wrong to consider, as he did at [154] of the reasons, that substantive assessments of the appellant’s protection claim and a further assessment of the new information relevant to the appellant’s father were “needed”. The submission, which seemed to be pressed somewhat faintly, was that this was an error of law, given that s 197C of the Act makes irrelevant, for the purposes of s 198, the fact that Australia may owe non-refoulement obligations in respect of unlawful non-citizens.

147    In our view, the Judge is not to be understood as having made the rather elementary mistake which this submission of the respondents attributed to him. Instead, the Judge was doing no more than making the point that an assessment of the protection claims of the appellant and of the new information relating to her father, were yet to be undertaken and that these circumstances provided part of the context making it unsurprising that the Minister had requested that the full brief canvass the options of him lifting the applicable bars so as to allow those assessments to be made.

148    Finally, and contrary to the respondents’ submissions, we do not regard the decision of the Minister on 3 September 2019 not to consider lifting the s 46A bar in relation to the appellant as being inconsistent with the Minister having made a contrary decision in May 2019. That is especially so if it was Minister Dutton who made the decision on 3 September 2019. But even if it was Minister Coleman, the fact is that Ministers can change their minds.

149    We will consider in relation to Ground 2 the evidence concerning the Minister’s response to the Revised May Submission. For the moment, we indicate that, contrary to the respondent’s submission, we do not regard the failure of Minister Coleman to circle either “Agreed” or “Not Agreed” in the Departmental recommendation as casting light on the question of whether he had made the relevant procedural decision.

150    For these reasons, we are not satisfied that any of the errors imputed by the respondents to the Judge’s reasons are established. On our review of the materials, we consider that the decision of the Judge was correct.

Ground 2

151    The respondents’ case, in the alternative, was that if Minister Coleman had decided to consider exercising the power to lift the s 46A(1) bar in relation to the appellant, then the Judge should have found that he had decided, at least by 29 May 2019, not to exercise such power.

152    The principal evidence on which the respondents relied for this submission was the entry in the Department’s document management system on 29 May 2019 in relation to the Revised May Submission which, as previously noted, stated:

Submission returned to the Department to be finalised as NFA at request of senior advisor.

153    As noted earlier, Mr Macdonald gave the following evidence in relation to that entry (although it had not been made by him):

[11]    I do not recall reviewing the [Revised May Submission] or discussing it with the Minister. I would be the senior adviser referred to because the only other senior adviser in the office was not working this file. I do not remember asking for it to be marked as NFA or discussing the submission with the Minister. But every action I take is at, or consistent with, directions of Minister Coleman. I would not have marked this submission as requiring NFA unless Minister Coleman had indicated that that is what he wanted.

154    There are a number of matters to note about the respondents’ reliance on the entry in the Departmental document management system. There was no communication which “returned”, or accompanied the return of, the Revised May Submission to the Department; there were no communications between Mr Macdonald and Mr Mansfield concerning the return of the Submission despite the numerous communications which had preceded its provision on 24 May 2019; the instruction from the “senior adviser” had apparently been given orally but no evidence was led from the person to whom the instruction was given; the evidence did not disclose who actually made the entry in the Departmental record; no evidence was led from that person; and there was no evidence that the entry (or the decision it was said to reflect) had been brought to the attention of any responsible Departmental officer at the time.

The reasons of the Judge

155    In relation to this entry, the Judge said:

[160]    I accept that (as the respondents submit) in returning the May 2019 Submission to the Department to be finalised No Further Action, Mr Macdonald was acting on the instructions of the Minister for Immigration. However, it is unclear what was meant by the return of the submission to the Department on this basis. Mr Macdonald’s evidence does not provide an explanation of what was meant by returning the submission to be finalised No Further Action. I note that the Minister did not circle any of the alternatives provided to him on the recommendations pages in the May 2019 Submission. In particular, he did not circle the words “agreed” or “not agreed” in respect of the recommendations that he exercise the powers to lift the applicable bars in respect of the applicant’s family. Had he circled “not agreed” in respect of the relevant recommendations, this would have clearly signified a decision by the Minister that he did not wish to exercise the powers to lift the applicable bars. It may be that, in returning the submission to the Department to be finalised No Further Action, the Minister was indicating that he did not wish to make a decision one way or the other at that time. If so, the Minister was not foreclosing that he may subsequently wish to exercise the powers to lift the applicable bars in respect of the applicant’s family.

156    Thus, the Judge accepted that the Revised May Submission had been returned to the Department by Mr Macdonald on the instructions of Minister Coleman that it be finalised as “NFA”. Nevertheless, his Honour considered it unclear what was intended by the notation “NFA”. This was especially so as Minister Coleman had not circled “not agreed” to any of the alternatives in the Revised May Submission, which was the obvious means by which he could have indicated that he did not wish to consider further the lifting of the s 46A(1) bar had that been his decision.

157    As is apparent from the concluding sentences in [160], the Judge adverted to the possibility that the Minister was indicating only that he did not wish to make a decision one way or the other “at that time”. On that understanding, the Minister had left open the possibility of later exercising the power to lift the bars precluding the appellant and her family from making valid applications for visas.

158    The Judge did not express any conclusion regarding this possibility. However, his Honour did conclude, at [165], that Minister Coleman’s personal procedural decision had ongoing effect at 21 August 2019 when Ms Cassidy determined not to refer Mr Mahendren’s request to the Minister. The matters on which the Judge relied for this purpose were:

(a)    the fact that the Minister had not adopted the most obvious means of indicating that he did not wish to consider the matter further, at [160]. This was in fact the means adopted by the Minister on 3 September 2019 on the submission then made by the Department, at [163];

(b)    the possibility that the Minister had left open further consideration of the lifting of the applicable bars, at [160];

(c)    the absence of action by the Department on the basis that the Minister had decided not to consider the matter further, for example, no letter was sent to the appellant, Mr Mahendren or Ms Ford, at [161];

(d)    there was no “clear evidence” of an earlier decision by Minister Coleman to bring to an end his consideration of whether to exercise the power to lift the bar, at [163]; and

(e)    Ministerial involvement in relation to the appellant’s family had continued during July 2019, at [162].

The respondents’ submissions

159    The respondents contended that the Judge had erred in failing to find that Minister Coleman had decided not to exercise his power to lift the applicable bars. They advanced a number of matters in support of this contention.

160    The first was that it was not readily to be inferred that Minister Coleman had made a procedural decision under multiple provisions and in respect of multiple persons but was simply doing nothing for a period of time without actioning those decisions. The respondents noted that the statutory processes which are triggered upon the making of a procedural decision must be pursued as soon as reasonably practicable: Plaintiff S4 at [28], [33]-[35].

161    Secondly, the respondents submitted that the natural meaning of the terms “finalised” and “no further action” is that the process has come to an end. They noted that this was the view taken by the Department in the minute of 24 July 2019 and by Ms Cassidy in her determination on 21 August 2019.

162    The respondents submitted, thirdly, that the fact that the Minister had not circled “agreed” or “not agreed”, was a matter of no significance as there was no requirement for him to have embodied his decision in any particular fashion.

163    Fourthly, the respondents submitted that the Judge’s suggestion that Minister Coleman may have indicated only that he wished to take no further action “at the time” was speculation. They noted further that, had that been the Minister’s intention, it was not necessary for him to have indicated that that was so by indicating that no further action should be taken.

164    Fifthly, the respondents submitted that the fact that the appellant had not been notified of any decision until after Ms Cassidy’s letter of 21 August 2019 was immaterial. That was so because, so the respondents submitted, there was no obligation on the Minister or the Department to consider a request or to write a letter.

165    Sixthly, the respondents submitted that the decision of Minister Coleman on 3 September 2019 not to consider lifting the bar in the appellant’s favour could not be “squared with” the Minister having made earlier procedural decisions without having finalised those earlier procedural processes.

166    Finally, the respondents submitted that it had not been put to Mr Macdonald that “NFA” could mean simply that the Minister had not wanted to make a decision “at that time”.

Consideration

167    We agree that, on its face, the notation in the Departmental document management system does suggest that a decision may have been made by Minister Coleman not to take any further action on the Revised May Submission, that is, a decision not to consider further the lifting of the applicable bars to which that submission referred. A number of matters bear upon whether there was error by the Judge in not giving effect to that prima facie conclusion.

168    Like the Judge, we consider it puzzling that the Minister did not use the obvious way to indicate formally the cessation of his consideration of the exercise of the power, if that is what was intended. We accept, as counsel for the respondents submitted, that there was no legal requirement for the Minister to have indicated his decision in this way. However, the many matters which come before this Court for judicial review suggests that this is the usual manner by which Ministers, including Minister Coleman, indicate their decision on Departmental submissions of the present kind. It is understandable that Ministers do so in order that there be a clear record of their decisions. Such a practice is consistent with the proper exercise of Ministerial responsibility and accountability. Minister Coleman can be taken to have known that a decision by him not to lift the applicable bars, or not to consider further doing so, would have the consequence that the Department would have to take the steps to remove the appellant and her family from Australia as soon as practicable. That is to say, that there would be serious consequences. We note that Mr Mansfield’s email to Ms Sharpe on 23 May 2019 suggests that the Minister had requested additional information on “travel document issuance” suggesting an appreciation by Minister Coleman of the consequence of an adverse decision. An entry in the Department’s document management system seems an odd way by which the serious processes were to be triggered. In this context, it does seem strange that Minister Coleman did not adopt the obvious, and seemingly usual, manner to record a decision not to lift the applicable bars. That supports the inference drawn by the Judge that the Minister had not determined not to lift the applicable bars.

169    It is not altogether clear to us that inferences as to the nature of Minister Coleman’s decision may be drawn from the subsequent conduct of the Department. However, as the respondents sought to rely on such inferences, we have had regard to them. In our view, they do not support the conclusion for which they contend.

170    As the Judge noted, the evidence does not suggest that the Department understood the Minister to have decided not to exercise his power to lift the applicable bars. In particular, it did not inform the appellant or her representatives that the extant requests for Ministerial intervention (made on 25 September 2018, 26 November 2018 and 16 May 2019) had been refused. Nor did it commence action, as required by s 198 of the Act, to remove the appellant and her family from Australia as soon as practicable. Action to that effect did not commence for another two months.

171    We accept, as the respondents contended, that the Department was under no legal obligation to inform the appellant of the Minister’s decision. However, it is an ordinary expectation of good public administration that the subjects of administrative decisions will be informed of them reasonably promptly. This is especially so in relation to decisions bearing upon the continued detention of persons. Ordinary human decency indicates that detainees should be informed of the position as soon as practicable. The respondents’ submissions on this topic implied a Kafkaesque approach to these matters. We note that Ms Cassidy’s letter to the appellant of 21 August 2019 is an example of effect being given to the administrative practice to which we have referred.

172    In our view, it is plausible that the Departmental officers considered, at least for a time, that the matter had not been finalised by the notation in the document management system of 29 May 2019. That is because the April Submission remained unresolved. It had not been returned to the Department. Moreover, when it was returned from the Minister’s office, it was for the purpose of “rebadging and updating”, not, for example, because it was regarded as finalised by the action on 29 May 2019. That too supports the inference that Minister Coleman had not regarded the issue of lifting the bar applicable to the appellant as finalised.

173    A third matter bearing on the assessment of the effect of the notation of 29 May 2019 is the absence of other communications reflecting a decision by the Minister to take no further action in relation to the submission. For example, despite the numerous email exchanges between Mr Macdonald and Mr Mansfield preceding the provision of the Revised May Submission, there were no emails from the former telling the latter that a decision had been made to take no further action. That circumstance, the involvement of Mr Pezzullo as Secretary of the Department, and the high public profile of the matter make it difficult to conceive that, had such a decision been made, there would not have been accompanying (or related) documents to that effect.

174    We also consider it appropriate to keep in mind that the entry in the Department’s document management system is the product of at least double hearsay: the communication from Minister Coleman to his advisor, and the communication from the advisor to the Departmental officer who made the entry. The hearsay chain may well have been even more extended given Mr Macdonald’s statement that he has no memory of asking for the submission to be marked “NFA”. The scope for mistake or misunderstanding as to the precise nature of the Ministerial direction in these circumstances is patent.

175    Having regard to these matters, we are not persuaded that the Judge’s conclusion that the Minister’s earlier personal procedural decision to consider lifting the bars applicable to the appellant had ongoing effect at the time of Ms Cassidy’s determination of 21 August 2019 was in error. In particular, we are not persuaded that the Judge’s conclusion that Ms Cassidy’s determination should be characterised as having a statutory basis (at [165]) was in error.

176    Accordingly, it follows, in accordance with the authorities, that the rules of procedural fairness applied. As previously noted, it was common ground that the appellant had not been afforded procedural fairness in Ms Cassidy’s assessment.

Conclusion

177    For the reasons given above, we dismiss both the appeal and the cross-appeal.

178    The parties were agreed that costs should follow the event in relation to both the appeal and the cross-appeal. As each has failed, we consider that the appropriate order is that each bear their own costs.

Associate:

Dated:    16 February 2021

SCHEDULE OF PARTIES