FEDERAL COURT OF AUSTRALIA

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    Unless a party notifies the Court in writing by 4:00pm on 30 November 2021 indicating opposition to this order, the appellant is to pay the respondents’ costs of the appeal, such costs to be taxed in default of agreement.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    Unless a party notifies the Court in writing by 4:00pm on 30 November 2021 indicating opposition to this order, the appellant is to pay the respondents’ costs of the appeal, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

KENNY J:

1    The facts and circumstances that led the appellants in these two cases to apply for judicial review in this Court are elegantly set out in the reasons of Charlesworth J.

2    These cases illustrate how an exercise of legislative power may give rise to intersecting exercises of executive power, all of which are subject to the Constitution and the general law. There is one essential question: can this Court on judicial review determine whether the non-statutorily based administrative actions taken by the Departmental officers in these two cases are unlawful because they are legally unreasonable? This was an initial question for each primary judge in both cases.

3    As explained below, it seems to me that the Court can decide this question on judicial review. The Minister’s challenge to Robertson J’s decision in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438, in which his Honour reached the same conclusion in similar circumstances, must fail. I agree, however, for the reasons stated by Griffiths J (and by Charlesworth J to the extent her Honour’s reasons are consistent with his) that neither appellant has established that the challenged action was in fact unreasonable in the legal sense. Accordingly, the appeals in both cases should be dismissed.

4    As will be seen from what follows, I have reached my conclusion concerning the availability of the unreasonableness ground substantially, though perhaps not entirely, for the reasons stated by Griffiths J. In this event, it seems to me appropriate to set out the substance of my own reasons briefly.

5    These cases primarily concern the application of s 351 of the Migration Act 1958 (Cth) (the Act), an expressed object of which “is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: s 4(1). Section 351 is one of a number of provisions in the Act conferring an extraordinary power of last resort: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [96], [99] (Gummow, Hayne, Crennan, Bell JJ); [111] (Heydon J). It permits the Minister to grant a non-citizen permission to enter or remain in Australia if the Minister thinks this is in the public interest after the non-citizen has exhausted all the other statutory processes for which the Act provides.

6    To understand the primary issue in these appeals properly, it is first necessary to understand the regulatory scheme established by the Act, and the place of s 351 in this scheme. Under the Act, whether a non-citizen is lawfully in Australia depends on whether the non-citizen holds an effective visa: ss 13, 14. An unlawful non-citizen, being a non-citizen without an effective visa, is liable to immigration detention and removal from Australia: ss 189, 198. The Act makes provision for visas of various kinds conferring permission to enter or remain in Australia, including bridging visas: ss 31, 37. These latter visas are classes of temporary visas, granted under Subdivision AF of Div 3, Pt 2 of the Act. The possibility of a bridging visa is contemplated by the Migration Regulations 1994 (Cth) (the Regulations) where a request has been made for an exercise of power under s 351 and upon satisfaction of other criteria.

7    The Act contains a range of provisions that afford an unsuccessful visa applicant an opportunity to apply to the Administrative Appeals Tribunal or another body for merits review with a view to obtaining a visa after one has been refused by an officer in the Minister’s Department. Where a visa applicant has failed on a review conducted by the Tribunal under Div 3, Pt 5 of the Act, the visa applicant may seek the grant of a visa from the Minister, who under s 351 of the Act may make a decision more favourable to the visa applicant in substitution for the Tribunal’s decision if the Minister thinks this is in the public interest. The power conferred by s 351(1) may only be exercised by the Minister personally (s 351(3)); and, if the Minister makes a decision in substitution for the Tribunal’s decision, the Minister must ensure that a statement to that effect, with reasons, is laid before the Parliament: s 351(4). The Minister is, however, under no duty to consider whether to exercise the power in s 351(1), whether requested to do so, “or in any other circumstances”: s 351(7).

8    I note in passing that ss 417 and 501J confer much the same power on the Minister where the Tribunal has made a decision against a visa applicant under provisions other than s 349 of the Act. Sections 48B and 195A, which have also been described as dispensing powers, have a similar structure and dispensing operation to ss 351, 417, and 501J of the Act: see Plaintiff S10/2011 at [27].

9    It must be borne in mind that since the Minister is under no duty to consider whether to exercise the power conferred on him by s 351(1), the Minister must first make a procedural decision about whether to consider making a substantive decision before making any substantive decision (that is, a decision about whether to substitute a decision more favourable to the visa applicant for that made by the Tribunal): see Plaintiff S10/2011 at [99(iv)] (Gummow, Hayne, Crennan and Bell JJ); [102] (Heydon J); also Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [52]-[53]; Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [70].

10    The executive power of the Commonwealth, with which s 61 of the Constitution is concerned, is engaged in various ways to ensure that s 351 can be given consistent and practical effect. As already indicated, the Regulations, which were made by the Governor-General (s 504), provide for the grant of a bridging visa where a non-citizen makes a request to the Minister under s 351 for a more favourable decision than that made by the Tribunal and where the person has not previously made such a request: see Regulations, Sch 2, cl 050.212(6). Broadly speaking, for the grant of a bridging visa in this circumstance, the applicant must meet various requirements, one of which may include the requirements of cl 050.212(6). Clause 050.212(6) provides that:

(6)    An applicant meets the requirements of this subclause if:

(a)    the applicant is the subject of:

(i)    a decision in relation to an application made in Australia for a visa, or

(ii)    a decision to cancel a visa; and

(b)    in relation to the decision mentioned in paragraph (a), the applicant:

(i)    is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351 or 417 of the Act; and

(ii)    has made a request to the Minister to substitute a more favourable decision under section 345, 351 or 417 of the Act; and

(c)    the applicant has not previously sought, or been the subject of a request by another person for:

(i)    the exercise of the Minister’s power under 345, 351 or 417 of the Act; or

(ii)    a determination under section 48B of the Act

The grant of such a bridging visa would enable the recipient lawfully to remain in Australia in order that, once the request has been made for an exercise of the power in s 351, the recipient could enjoy the benefit of any favourable decision the Minister may ultimately make.

11    Bridging visas permitting a person in the position of each of the appellants to remain in Australia after a request has been made for an exercise of power under s 351 may also be granted under other provisions of the Regulations, including pending the outcome of legal proceedings referrable to the request. Indeed, although it appears that each appellant currently holds a bridging visa, neither holds a subclause 050.212(6) bridging visa. As explained below, however, whether the appellants have been granted a bridging visa under subclause 050.212(6) or some other provision of the Regulations pending the outcome of their requests or associated legal proceedings, does not affect the outcome of these appeals.

12    The executive power of the Commonwealth is also obviously engaged by s 351 itself since under this provision Parliament has conferred the power on the Minister to make a decision more favourable to the visa applicant in substitution for that of the Tribunal, in recognition that the Minister is part of the executive branch of government with responsibility for the Department of State responsible for the administration of the Act: Constitution, s 64; Administrative Arrangements Order, 30 September 2015, p 27 (noting that the Department of Home Affairs has been known by various names over the years).

13    In his capacity as the responsible Minister, the Minister has issued guidelines to officers of his Department concerning s 351 of the Act, which were applicable in each appellant’s case. I interpolate here that these guidelines replaced the earlier guidelines relating to s 351 and a number of other provisions, which were considered in Plaintiff S10/2011 and SZSSJ. Like the guidelines considered in those cases, the guidelines relevant here were included in a Centralised Departmental Instruction System, and were written in the first person as instructions from the Minister: cf. Plaintiff S10/2011 at [34]. They adopted a similar structure to the earlier guidelines, although their provisions differed in certain significant respects. I return to these differences below.

14    The guidelines did not have a basis in the Act and did not have the force of law. Rather, they were an exercise of the executive power of the Commonwealth, made in furtherance of the execution of the Act and, relevantly, s 351. In substance, their status was informed by the Minister’s constitutional responsibility for his Department and the statutory power conferred on him by s 351 itself. As to the work done by Departmental officers under the guidelines, to adopt the language of French CJ and Kiefel J in Plaintiff S10/2011 at [51], that work “may be regarded, for the purposes of s 61 of the Constitution, as an executive function incidental to the administration of the Act and thus within that aspect of the executive power which ‘extends to the execution and maintenance … of the laws of the Commonwealth’”.

15    As explained hereafter, the guidelines applicable to the making of the Departmental decisions at the centre of these appeals are relevant to the question of whether the decisions are amenable to judicial review on the ground of unreasonableness. The purpose for the guidelines, as stated by the Minister, was to:

•    explain the circumstances in which I may wish to consider intervening in a case

•    explain how a person may request that I consider intervening in their case

•    explain when my Department should refer a case to me

•    confirm that if a case does not meet these guidelines, I do not wish to consider intervening in that case.

16    The guidelines instructed the Departmental officers to whom they were addressed how they were to deal with requests for the Minister’s intervention under s 351 of the Act, including how to identify requests that the Minister “may wish to consider” and, the corollary, the requests that the Minister did not wish to consider at all.

17    After setting out what were referred to as “principles” for intervention, the Minister described the types of “[c]ases that should be brought to [his] attention” as being “[c]ases that have one or more unique or exceptional circumstances” such as those within categories the guidelines described. One such category was “strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit …”.

18    Also within the guidelines, the Minister instructed that:

Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing[.]

Types of disqualifying circumstances were subsequently identified, for example, where “the person has left Australia”.

19    Under the heading “How requests for Ministerial intervention will be progressed”, the Minister stated, in connection with a “first request”:

If the Department assesses that the case has unique or exceptional circumstances such as those described in section 4 of these guidelines, it will be brought to my attention in a submission. I may consider intervening if I think it is in the public interest to do so.

… If the Department assesses that the case does not have unique or exceptional circumstances such as those described in section 4 of these guidelines, and is not inappropriate for me to consider, it will be finalised by the Department without referral to me.

If I do not wish to intervene or consider intervening in the case, whether or not it has been referred to me, the Department will reply on my behalf to the person or their authorised representative that I do not wish to intervene or consider intervening in that case.

20    Regarding a “repeat request” (as defined), the guidelines instructed that, as a rule, the Minister did not wish to consider them, although such a request “may be referred” to the Minister in “limited circumstances”, where “the Department is satisfied [that] there has been a significant change in circumstances … [and] these new, substantive issues fall within the unique or exceptional circumstances”.

21    The guidelines concluded with the statement that:

A request for [the Minister] to consider intervening is not an application for a visa and unless making the request leads to the grant of a Bridging visa, the request has no effect on the department’s removal obligations.

22    The guidelines were not directed to the manner in which the Minister, personally, decided under s 351 whether to consider to make a substantive decision in any particular case; and, if so, what, if any, substantive decision should be made. Rather, the guidelines were directed to an anterior point in the process. The guidelines relevant to the present appeals operated to screen out any requests that Departmental officers assessed as being of the kind that the Minister had directed should not be referred to him for any form of consideration under s 351. Where Departmental officers assessed a request as being of this kind, the Department finalised the case without referring the request to the Minister. A request would only be referred to the Minister for at least preliminary consideration (as to whether the Minister would consider whether to make a decision to grant a visa) where the Departmental officers assessed the request as being of the kind that the Minister had instructed should be brought to his attention.

23    Departmental officers assessed the appellants’ requests as being ones that did not fall within a class that the Minister had directed should be referred to him and therefore took steps to finalise the appellants’ cases without reference to the Minister. As a consequence, with respect to the appellants’ requests, the Minister did nothing at all under s 351 of the Act, and no statutory power of any kind was engaged.

24    This means that the circumstances falling for consideration in these appeals are relevantly different from those in Plaintiff M61/2010E and SZSSJ, where the Minister had made a personal procedural decision to consider whether to exercise the relevant power: see Plaintiff S10/2011 at [45], [46]; SZSSJ at [33]. In those two cases, the subsequent Departmental processes were undertaken to assist the Minister’s consideration as to whether to make a substantive decision in favour of the relevant non-citizens: in consequence these processes had a statutory basis. Where, as here, the relevant Departmental processes were undertaken prior to the Minister making any personal decision at all under s 351, the Departmental processes can have no statutory basis: see SZSSJ at [54]. The assessments and decisions made by the relevant Departmental officers – to the effect that the appellants’ requests were not of a kind the Minister had instructed he wanted to consider and that the Department should therefore proceed to finalise their cases without referring them to the Minister – were part of these processes. As the Solicitor-General for the Commonwealth, Dr Stephen Donaghue QC, accepted, the relevant Departmental officers made these decisions not to refer the appellants’ requests in exercise of Commonwealth executive power.

25    In each appeal, the appellants contend, and the respondents deny, that the challenged decisions are amenable to judicial review by this Court on the unreasonableness ground. It is to this issue that I now turn. Before proceeding further I would interpolate that, for the reasons stated by Griffiths J in his reasons at [80], I agree that the fact that s 351(1) of the Act confers a discretion is sufficient to attract the principle in Li, and the terms of s 351(7) do not require the contrary conclusion.

26    As already stated, the personal power conferred on the Minister by s 351 may properly be characterised as an extraordinary power of last resort (being exercisable only after all other relevant statutory processes have been exhausted and there being no duty to consider exercising it in any particular case). It may be borne in mind, however, that what the Departmental officers did was in the ordinary course of the administration of an Act and that that Act regulated the rights of individuals (who because of their legal status as non-citizens had no right to be in Australia other than as conferred under the Act). Their assessments and consequent decisions were in many respects not out of the ordinary at all.

27    There are some fundamental propositions that bear on the amenability of judicial review. In exercising executive power, whatever its source, the Minister and his Departmental officers are subject to law. Section 75(v) of the Constitution ensures that the High Court is capable of restraining any officer of the Commonwealth from exceeding power and entrenches a minimum of judicial review: see Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 363 (Dixon J). This, it has been said, is a textual reinforcement for Dixon J’s statement in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 about the significance of the rule of law for the Constitution: Plaintiff S157 at [103]. By virtue of s 39B of the Judiciary Act 1903 (Cth), the terms of which follow s 75(v), this Court is placed in the same position as the High Court in this regard.

28    The substance of the proposition that s 75(v) ensures that an unlawful exercise of executive power by an officer of the Commonwealth is capable of limitation, whether its source is constitutional, statutory or non-statutory, has been accepted for many years: see, for example, R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, especially at 220-221 (Mason J); Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; 204 CLR 82 at [45] (Gaudron and Gummow JJ); Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 at [69] (McHugh, Gummow and Hayne JJ); and Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [126]-[129] (Gageler J). It has also been accepted for many years that the concomitant duty of the High Court or this Court in determining the lawfulness of executive action extends not only to action alleged to be beyond prerogative power but to action “alleged to be otherwise in disconformity with the law”: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35; Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274, referencing with approval Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 (“CCSU”) at 278 (Bowen CJ), 280 (Sheppard J) and 302-304 (Wilcox J); Aye v Minister for Immigration and Citizenship [2010] FCAFC 69; 187 FCR 449 at [98] (Lander J), [123] (McKerracher J); cf. Attorney-General (Cth) v Ogawa [2020] FCAFC 180; 281 FCR 1 at [73]. There was no dispute in these appeals about these general propositions.

29    What may be termed the width and depth of the judicial review that the Court can undertake depends on the nature and subject matter of the challenged exercise of executive power: see, for example, Toohey at 219-220 (Mason J); Re Ditfort; ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 369-370; Peko-Wallsend at 277; Aye at [98], [123]. This proposition was also not in dispute. Rather, the dispute in these appeals centred on an argument that the nature of the challenged decisions precluded review on the legal unreasonableness ground.

30    To evaluate this argument, it is useful to consider the nature of the ground itself. The common law respecting judicial review is built on the rule of reason, as Rooke’s Case (1597) 5 Co Rep 99b illustrates. At issue in that case was a decision of the Commissioners of Sewers to impose on one landowner alone the charges for repairs to a river bank from which the other riparian owners also benefitted. Coke LJ held, at 100, that the exercise of such a discretion “ought to be limited and bound with the rule of reason and law”, and that the Commissioners’ decision failed because it did not observe this principle. This tends to support the proposition that it should be accepted that in principle the ground of legal unreasonableness may be relied on in challenging a decision made in exercise of executive power, irrespective of the source of that power.

31    The principle that judicial review is founded on reason has continued to inform the common law since Rooke’s Case. Nearly 300 years later, in Sharp v Wakefield [1891] AC 173 at 179, Lord Halsbury LC referred to Rooke’s Case in connection with a decision to refuse a licence under the Intoxicating Liquor Licensing Acts when he said:

An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and “discretion” means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke’s Case [5 Rep. 100, a]; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular.

32    Although their primary focus was the lawfulness of a statutory exercise of discretion, the reasons of French CJ and of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 acknowledge more broadly that reason or rationality has been and remains a fundamental organising touchstone for assessing the lawfulness of decisions of the executive branch of government at common law in Australia: see Li at [24]-[26] (French CJ), [65] (Hayne, Kiefel, and Bell JJ); also Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [88]-[89]. This has led the High Court to hold that reasonableness is an implied condition of an exercise of statutory discretionary power. It is tolerably clear, however, that this is not the only manifestation of reason as a fundamental common law principle, particularly in the context of judicial review.

33    This last proposition is, so it seems to me, confirmed by the reasoning of courts in the United Kingdom respecting the amenability of administrative decisions to judicial review. As the Full Court of this Court noted in Peko-Wallsend, CCSU accepted that the lawfulness of an exercise of non-statutory executive power can be examined in common law judicial review proceedings on the unreasonableness ground: CCSU at 410-411 (Lord Diplock), 417 (Lord Roskill); 423-4 (Lord Brightman). This was in part because a challenge for unreasonableness was a discrete ground, separate from procedural fairness which had a different legal history. (Concerning the history of these two grounds, see further M J Beazley, ‘Judicial Review and the Shifting Sands of Legal Unreasonableness’ (10th Annual Whitmore Lecture, Council of Australasian Tribunals, 12 October 2016); De Smith, Woolf and Jowell, Judicial Review and Administrative Action (Sweet & Maxwell, 5th ed, 1995) 377-399; Robert French, ‘Singapore Academy of Law Annual Lecture 2013 – The Rule of Law as a Many Coloured Dream Coat’ (2014) 26 Singapore Academy of Law Journal 1 at 13; Osborn v Parole Board [2013] UKSC 61 at [69]-[70].)

34    Since CCSU, courts in the United Kingdom have continued to undertake judicial review of non-statutorily-based administrative decisions on what have been called the “traditional grounds”, an expression which includes the ground of unreasonableness or irrationality, in cases where the challenged decision affects the rights or interests of an individual: see, for example, Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3; [2016] AC 1457 at [24]-[26] (Lord Carnwath, with Lord Neuberger, Lord Mance, Lord Wilson and Lord Sumption agreeing) and R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Everett [1989] QB 811 at 820. That the courts in the United Kingdom also undertake judicial review on the non-traditional ground of proportionality review, which is not part of Australian public administrative law, and that, those courts apply a doctrine of legitimate expectation that has been rejected in Australia has little, if any, bearing on the amenability of non-statutory decisions to judicial review on the ground of unreasonableness.

35    Similarly, differences in constitutional understandings of executive power in the United Kingdom and Australia (as outlined in Williams v Commonwealth [2012] HCA 23; 248 CLR 156 (e.g., at [25], [150]-[159], [488]) and illustrated in Miller v Prime Minister [2016] UKSC 3; [2020] AC 373) are not relevant in these appeals, given the nature of the executive power with which they are concerned: for example, these appeals do not involve an exercise of an executive capacity also enjoyed by private persons, as to which the availability of judicial review in the two jurisdictions may perhaps differ.

36    For all these reasons, subject to general constitutional and common law constraints (some of which are mentioned below) and any applicable statutory limitations, there should be no continuing doubt that an exercise of executive power (whatever its source) is amenable to judicial review on the unreasonableness ground. Such an exercise of power may be challenged on this ground either because the reasons given by the decision-maker disclose no “intelligible justification” in the Li sense or because the outcome is such that the circumstances disclose legal unreasonableness, as in Rooke’s Case referred to earlier. The long common law history of the unreasonableness ground confirms that it is separate and distinct from the procedural fairness ground. In the context of these appeals, the fact that the decision of the High Court in Plaintiff S10/2011 precludes reliance on the procedural fairness ground in relation to the decisions under challenge does not of itself prevent reliance on the unreasonableness ground.

37    As already noted, the width and depth of judicial review in any particular case may be reduced or enlarged by the nature and subject matter of the challenged exercise of executive power. The constraints on judicial review in Australia, even where loosely analogous to constraints in the United Kingdom, may be derived from the common law or have an Australian constitutional dimension. This is, so it seems to me, illustrated by Dr Donaghue’s submissions at the hearing of these appeals.

38    In these appeals the Commonwealth Solicitor-General submitted that there could be no judicial review of the challenged decisions on the unreasonableness ground because the decisions were not subject to “ascertainable, sufficiently precise legal limit”. Although not spelt out in argument, I understand this submission to be a reference to the fact that, by virtue of Ch III of the Constitution, this Court, like the High Court and other federal courts, can exercise only judicial power (and power incidental to judicial power). Of its nature an exercise of judicial power requires that there be judicially ascertainable standards capable of application by a court: see, for example, Australian Communist Party at 272 (Kitto J); also Thomas v Mowbray [2007] HCA 33; 233 CLR 307, particularly at [321]-[322] (Kirby J); [501]-[512] (Hayne J). It may be accepted that there will be occasions when non-statutory decisions made by the executive in exercise of power in s 61 of the Constitution are not susceptible to analysis according to judicially ascertainable standards capable of application by a court. This may be on account of the nature or subject matter of the exercise of power, or for some other reason. It is unnecessary to explore this issue further, because the exercise of power at issue in these appeals was not of this kind.

39    There were clearly ascertainable standards capable of application and according to which a court could determine whether the challenged decisions were legally unreasonable. As Rooke’s Case illustrates, common law courts have understood and applied the concept of legal unreasonableness for a very long time, and in Australia there is little continuing doubt about the nature of the judicial inquiry that the concept of legal unreasonableness involves: see [36] above. Whether the non-statutory decisions in question were unreasonable in the legal sense should be determined by reference to the context in which they were made: that is, by reference to the material before the decision-makers at the time of making each of the decisions; and by reference to the guidelines under and according to which the decisions were to be made. The latter requires consideration of the guidelines’ purpose, as well as attention to the principles and other matters that the guidelines instructed were to be observed or considered in making the assessments and decisions as directed by the Minister. As Robertson J said in Jabbour at [91], “[t]he guidelines provided a purpose and set out criteria or considerations” for the decisions that were to be made under them. The guidelines relevant to the challenged decisions ensured that there was no absence of clearly ascertainable standards capable of application by a court in determining whether the decisions were legally unreasonable.

40    On these appeals, the Commonwealth Solicitor-General also submitted that the challenged decisions were not amenable to judicial review because the decisions did not affect the appellants’ rights or interests.

41    Of course, judicial review proceedings may only be brought by a person with standing to do so (see, e.g., Animals Angels e.V. v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35 at [120]-[121]; and Argos Pty Ltd v Minister for the Environment and Sustainable Development [2014] HCA 50; 254 CLR 394 at [43] (French CJ and Keane J), [66]-[68] (Hayne and Bell JJ), and [86] (Gageler J). The applicant for judicial review must therefore be adversely affected by the challenged decision or be otherwise a person aggrieved by it. Generally speaking, the question of standing is ‘subsumed within the constitutional requirement of a “matter”’: Plaintiff S10/2011 at [68]. There was, however, no suggestion that the standing of the appellants to bring judicial review proceedings to challenge the decisions in question was in contest. As Griffiths J observes in his reasons at [89], the Minister must therefore be taken to accept that the appellants are persons aggrieved in sense that the common law would permit them to seek a public law remedy with respect to the decisions. This was not therefore the issue to which the Solicitor-General’s submissions were directed when he contended that the challenged decisions did not affect the appellants’ rights or interests.

42    It may be that this submission was directed to a common law requirement of the kind mentioned in Youssef: see [34] above. Or, it may be that it was directed to a constitutional requirement deriving from Ch III of the Constitution. That is, as a general rule, judicial power involves “a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation”: see R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374. Perhaps the argument was intended to convey that there could be no judicial review of the challenged decisions, because the proceedings could not engage judicial power because they could not, relevantly, settle any right or obligation. Perhaps the submission was intended to refer generally to a common law requirement having a constitutional dimension in Australia. It is unnecessary to decide which of these possibilities was indicated by Dr Donaghue’s submission, because the argument, however understood, cannot succeed.

43    There is, it seems to me, little doubt that the decisions in question relevantly affected the appellants’ rights and interests. Both appellants had been refused visas by Departmental decision-makers. Both failed before the Tribunal on a review under Div 3, Pt 5 of the Act. In addressing their requests to the Minister, they each sought the favourable exercise of the extraordinary power conferred on the Minister by s 351 to obtain relief from the ordinarily applicable provisions of the Act. Broadly speaking, these provisions governed the appellants’ presence in Australia. As already stated, the power permitted the Minister to grant the appellants each a visa in substitution for the Tribunal’s decision if the Minister thought this was in the public interest. As we know, the appellants’ respective requests never reached the Minister. This was because, acting or purporting to act under the guidelines addressed to them, the relevant Departmental officers decided that the appellants’ requests were not of a type that the Minister had stated that he wished to consider; and in conformity with the guidelines, the appellants’ requests should not therefore be referred to the Minister. Accordingly the Minister was not informed of the appellants’ requests and no occasion arose for the Minister to make a decision of a kind contemplated by s 351. As I have already noted, and is more fully explained by Griffiths J at [93]-[95] of his reasons, the guidelines applicable to the appellants were significantly different in the latter respect to the guidelines at issue in Plaintiff S10/2011. In these circumstances, the challenged decisions evidently affected the appellants’ interests in seeking to engage the power conferred by s 351 on the Minister.

44    In another sense too, the challenged decisions affected the appellants’ rights. As already noted, the statutory scheme, which includes the Act and the Regulations, makes provision for bridging visas including where the visa applicant has made a request to the Minister to substitute a more favourable decision under s 351 of the Act: cf. the Regulations, Sch 2, subcl 050.212(6). The grant of a bridging visa prevents the recipient’s compulsory removal from Australia and detention prior to removal: the Act, ss 189, 198. If the appellants’ requests to the Minister to exercise his discretions under s 351 succeeded and they were each granted a further visa, their permission to remain at liberty in Australia continued. If their requests failed, then, they either left Australia voluntarily, or their removal from Australia was mandated by the Act and they were liable to detention until removed: ss 189, 198. The outcome was the same whether their request failed because the Minister declined to exercise any part of the power conferred by s 351 in the appellants’ favour; or because the Departmental officers determined that, in conformity with the guidelines, their requests should not be referred to the Minister. Their rights or interests were, therefore, necessarily affected by the challenged decisions.

45    Furthermore, for these purposes, it would not matter whether individuals making a request to the Minister to exercise the s 351 power in their favour held a bridging visa under cl 050.212(6) of Sch 2 of the Regulations or under some other provision dependent on another circumstance associated with the request, such as the existence of related legal proceedings. The fact remains that the grant of an effective bridging visa permits the visa holder to remain at liberty in Australia until such time as the request is finalised, which may entail the completion of the legal proceedings.

46    For these reasons, I would reject the submission that the challenged decisions were not amenable to judicial review because the decisions did not affect the appellants’ rights or interests, or because they were not subject to “ascertainable, sufficiently precise legal limit”. There was no other suggested reason why the challenged decisions were not amenable to judicial review on the unreasonableness ground.

47    There are two remaining matters. First, for the reasons stated by Charlesworth J, I would grant leave to Mr Davis to agitate on his appeal whether the announcement of the guidelines amounted to the Minister making an advance procedural decision to consider making a substantive decision whether to grant a visa in those cases in which the Departmental officers found that a request met the guidelines’ criteria for referral. This question was not raised before the primary judge. Indeed it was not raised in the appeal proceeding prior to the filing of written submissions for Mr Davis. Having granted leave, for the reasons stated by Charlesworth J, I would reject the submissions made by Mr Davis to the effect that an advance procedural decision had been made as argued. Also, for the reasons stated by Charlesworth J, I would refuse leave to Mr Davis to amend his notice of appeal to include proposed ground 2.

48    For the reasons stated, both appeals should be dismissed. It is unnecessary to consider the nature of the relief that might have been granted had there been a different conclusion.

Associate:

Dated:    23 November 2021

REASONS FOR JUDGMENT

BESANKO J:

49    I have had the considerable advantage of reading the reasons for judgment in draft of the other members of the Court. In my opinion, both appeals should be dismissed.

50    With respect to the important legal questions raised by the respondents by way of a Notice of contention in each appeal, I respectfully agree with the reasons of Griffiths J, subject to two matters.

51    The first matter is a point I wish to emphasise. In the discussion by Griffiths J of whether individual rights or interests are potentially affected, his Honour refers to the decisions of Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 (Jabbour) and Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 (Plaintiff S10/2011). In light of those authorities and the terms of s 351 of the Migration Act 1958 (Cth) (the Act), it seems to me that, to the extent it is necessary to examine the effect on individual rights or interests, it is appropriate to approach this case not as one of rights, but rather as one of interests (see the discussion of this concept in Plaintiff S10/2011 at [66]–[68] per Gummow, Hayne, Crennan and Bell JJ) or, as Robertson J put the matter in Jabbour (at [91]), potential rights.

52    The second matter is that I note the observations of Mortimer J about the analysis of Charlesworth J at [253]–[270] and Griffiths J’s agreement with that analysis at [87] concerning the availability of an order in the nature of mandamus and as a consequence, it would seem, an order in the nature of writ of certiorari (see Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [100]) and Mortimer J’s statement that she is not presently persuaded that there is a duty enforceable by an order in the nature of mandamus of the type identified by Charlesworth J. I share that reservation. Although the issue of the availability of orders in the nature of the prerogative writs was raised in the Notice of contention in each appeal, and was the subject of written submissions, little was said about that issue in oral submissions. For example, the duty that an order in the nature of mandamus would command the person to whom it was directed to perform was not fully and clearly articulated by either appellant in the course of oral submissions. That was in circumstances in which, in his Further Amended Originating application before the primary judge, Mr Davis sought a writ of mandamus to require the Secretary of the Department of Home Affairs (the Secretary) to consider and to determine according to law the applicant’s request for Ministerial intervention, and in his Amended Notice of appeal, Mr Davis sought a writ of mandamus or an order in the nature thereof requiring the Secretary to refer the appellant’s request for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to exercise his power under s 351 of the Act to the Minister or, in the alternative, a writ of mandamus to require the Secretary to refer the request to the Minister or, in the further alternative, a writ of mandamus to require the Secretary to deal with the request according to law. In his Further Amended Originating application before the primary judge, DCM20 sought a writ of mandamus directed to the Assistant Director, Ministerial Intervention, Department of Home Affairs and the case officer requiring them to determine the applicant’s request according to law. By the time of his written response and reply in his appeal, DCM20 appears to have conceded the unavailability of prerogative writs or orders in the nature thereof and he states that the issue is the availability of the remedy of a declaration.

53    In any event, having regard to the terms of s 351 of the Act and, in particular subsection (7), and the holding that the screening out process in the 2016 Guidelines is lawful, I am not persuaded that, even if the appeals were otherwise successful, there is a proper basis to issue a writ of mandamus or make an order in the nature thereof.

54    With respect to Mr Davis’ appeal, I agree with the reasons of Griffiths J for rejecting Ground 1 of the appeal and, like his Honour, I agree with the reasons of Charlesworth J with respect to the disposition of proposed Ground 2 of Mr Davis’ appeal. As to the new argument raised by Mr Davis in his appeal, I would grant leave to raise the argument, but reject it on the merits for the reasons given by Charlesworth J.

55    With respect to DCM20’s appeal, I agree with the reasons of Charlesworth J for rejecting the appeal.

Associate:    

Dated:     23 November 2021

REASONS FOR JUDGMENT

GRIFFITHS J

56    I have had the considerable benefit of reading Charlesworth J’s draft reasons for judgment. I gratefully adopt her Honour’s summary of the background facts and identification of many of the relevant legislative provisions. I respectfully agree with her Honour’s proposed orders that both proceedings should be dismissed. I prefer, however, to express my own reasons in relation to some of the relevant legal principles and why, in particular, I reject the first respondent’s challenge to the correctness of Robertson J’s decision in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438. I would also like to provide some additional reasons for agreeing with Charlesworth J’s conclusion that ground 1 of Mr Davis’ appeal should be rejected.

Relevant legal principles

57    A central issue is whether Robertson J’s decision in Jabbour regarding the availability of judicial review for unreasonableness is wrong. The issue is squarely raised by the first respondent’s notices of contention. The Court was urged by the first respondent in both appeals to determine that issue irrespective of the outcome of the appeals having regard to the different views and approaches taken in several previous first instance decisions concerning the correctness of Jabbour (see Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791; CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825; DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022; DUE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1187).

58    Jabbour raised similar issues to those in these appeals and, in particular, whether the ground of legal unreasonableness applied to a decision of a Departmental officer not to refer an intervention request to the Minister for consideration under s 351 of the Migration Act 1958 (Cth) (the Act), based on the same Guidelines as those which were applied in these appeals (i.e. Guidelines which were signed on 11 March 2016 and reissued on 29 March 2016 which I shall refer to as the 2016 Guidelines). It is important to note at the outset that these are not the guidelines which were the subject of analysis in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636, upon which the first respondent places heavy reliance in these proceedings. I shall refer to the guidelines in Plaintiff S10 as the 2009 Guidelines. The relevant differences in those guidelines are highlighted in my summary of them at [94]-[95] below.

(a) Jabbour summarised

59    In Jabbour, a request was made for Ministerial intervention under s 351 of the Act. That application was made following a refusal to grant the first applicant a subclass 457 visa, a decision which was affirmed on appeal by the former Migration Review Tribunal. This request for intervention was declined by the Assistant Minister for Immigration and Border Protection on 4 October 2017.

60    On 7 March 2018, a further request was made for Ministerial intervention under s 351. On 23 March 2018, a Departmental officer determined not to refer that request to the Minister. The basis for this decision was the officer’s application of the 2016 Guidelines, which required there to be a significant change in circumstances since the previous request which change raised new, substantive issues that were not provided previously or which would now present unique or exceptional circumstances. It is this decision which was the subject of the application for judicial review in Jabbour, on the basis that the decision was legally unreasonable. A threshold issue arose as to whether such a decision, which itself was non-statutory and was made with reference to the non-statutory 2016 Guidelines, was amenable to judicial review on that ground. Justice Robertson held that it was but ultimately concluded that legal unreasonableness had not been established.

61    The key features of Robertson J’s legal analysis in Jabbour may be summarised as follows:

(a)    Although the heads of review of denial of procedural fairness and legal unreasonableness overlap to some extent, the principles are distinct in their history, principles and terms.

(b)    Accordingly, the fact that the High Court held in Plaintiff S10 that procedural fairness principles had been displaced in respect of the operation of non-statutory guidelines, did not necessarily mean that, as a matter of statutory construction, review for unreasonableness has also been displaced.

(c)    Previous authorities (including R v Toohey; Ex parte Northern Land Council [1981] HCA 74; 151 CLR 170; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 and Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44) had established that the exercise of some non-statutory executive powers under s 61 of the Constitution may be amenable to judicial review, depending upon the nature and subject matter of the power, as opposed to its source. That is not to say, however, that all Commonwealth public administration is subject to judicial review, including on the ground of legal unreasonableness.

(d)    A departure from non-statutory Ministerial guidelines may give rise to judicial review for error of law where, for example, a decision-maker who is not bound to apply the policy nevertheless purports to apply it or, alternatively, misconstrues or misunderstands the policy, such that what is applied is not the policy but something else (citing Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208 per French and Drummond JJ).

(e)    Similarly, the condition of reasonableness in the exercise of some non-statutory powers is such that judicial review may be available on either of the two limbs identified in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47] per Allsop CJ, Robertson and Mortimer JJ, i.e. reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the administrative action and also by reference to the result or outcome of that process.

(f)    The common law provides the conceptual underpinning for the Court’s role in judicial review of administrative action involving non-statutory powers.

(g)    Although an impugned administrative decision which lacks a statutory foundation does not prevent judicial review in an appropriate case, in the absence of a statute providing a legal framework for the review process, it is appropriate to adopt as a framework guidelines which are intended to be applied by decision-makers. Such guidelines or instructions are intended to set out criteria or considerations which will be taken into account in making decisions which potentially affect an applicant’s interests and rights.

62    The essence of the reasoning in Jabbour is set out at [91], [92] and [102] (without alteration):

91    In my opinion, at the level of principle the non-statutory administrative action on the part of the second respondent in this case is amenable to judicial review for legal unreasonableness. Relevantly, the nature of that administrative action is informed by the guidelines. Although those guidelines take the form of instructions to officers of the Minister’s Department, that is not their only character. The instructions are promulgated and, amongst other things, set out how to make a request and how requests for Ministerial intervention will be progressed. The interests and potential rights of the applicants were affected by the administrative action. The guidelines provided a purpose and set out criteria or considerations.

92    The nature of the administrative action, the relevant exercise of power, does not take it out of the mainstream of government actions either by reference to subject matter or as involving a matter of political judgment. These characteristics of the present non-statutory administrative action do not distinguish it from a statutory discretion. Although involving the exercise of a non-statutory power, the circumstances are “more closely related to justice to the individual than with political, social and economic concerns”: South Australia v O’Shea [1987] HCA 39; (1987) 163 CLR 378 at 387 per Mason CJ. That the basis of review may be narrower than for government action under a statute does not have the consequence that judicial review is unavailable. That the action in the present case is not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth), because there is no decision under an enactment, does not mean that judicial review under s 39B of the Judiciary Act is not available: s 10 of the Administrative Decisions (Judicial Review) Act provides that the rights conferred by ss 5, 6 and 7 are in addition to, and not in derogation of, any other rights that the person has to seek a review by, relevantly, a court. Further, I have set out at [81] above why I consider the displacement of procedural fairness, as a matter of contrary statutory intention, does not mean that review for legal unreasonableness is similarly displaced.

…

102    In my opinion, the content of any condition of reasonableness in the exercise of non-statutory power is such that judicial review is available at least on the alternative analysis in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47], that is, reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the administrative action. Because it focusses on the reasoning process of the decision-maker, this form of analysis does not depend upon the identification of statutory scope and purpose. Further, by reference to the guidelines, which as I have explained above bear on the nature of the relevant power, I accept that legal unreasonableness could be made out by reference to result: that is, the proposition that no reasonable decision-maker could have failed to refer the application to the Minister by reference to the description in the guidelines of unique or exceptional circumstances, if made out, would sound in legal error. In this analysis the guidelines and characteristics of the power identified at [91] above perform, in the non-statutory context, a function comparable to the scope and purpose of a statutory power.

(b) Was Jabbour correctly decided?

63    It is important to note at the outset that the Solicitor-General (who appeared with Mr Nick Wood for the respondents) explicitly acknowledged that the first respondent did not make any “general claim to the effect that it is impossible to review any exercises of non-statutory power on any grounds”. With reference to Toohey, the Solicitor-General identified the relevant question as “what kinds of powers and on what grounds”. In answering these questions, the Solicitor-General submitted that attention had to be given to the subject matter of the impugned decision and its effects on individual rights of interests, as well as asking whether there is an “ascertainable, sufficiently precise legal limit”.

64    It is also important to note that the Solicitor-General accepted that the assessments carried out by Departmental officers under the 2016 Guidelines is part of the executive power of the Commonwealth under s 61 of the Constitution.

65    The first respondent advanced five arguments in support of his contention that Jabbour is wrong. It is convenient to address each of them in turn and explain why none should be accepted.

(i) Reiteration of the submissions advanced in Jabbour

66    The first respondent maintained the submissions which were advanced in Jabbour and summarised by Robertson J at [50]-[55] and [63]-[73]. I respectfully agree with his Honour’s reasons for rejecting those submissions, which are substantially reflected in my summary of the key features of his Honour’s analysis, as well as in my reasons which follow.

(ii) The distinction between the procedural and substantive steps in Ministerial non-intervention powers

67    The first respondent contended that even if it was the case that the Act does not displace legal unreasonableness as a constraint on the exercise of power under s 351, it does not follow that the anterior “decision” or conduct of Departmental officers in not referring a request for intervention to the Minister can be challenged as being “legally unreasonable”. In support of this contention, the first respondent cited Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 and the Court’s unanimous approval there (at [53]) of the distinction between the procedural and substantive steps in ministerial intervention powers such ss 195A and 417 (which have a similar structure to that in s 351) as identified in Plaintiff S10 and Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319.

68    Of course, the distinction drawn in those High Court decisions must be accepted and applied in an appropriate case. It is important, however, not to lose sight of the context in which this distinction was drawn. The context in both Plaintiff S10 and Plaintiff M61 was a complaint of procedural unfairness. Neither case directly addresses the question which arises in these appeals, namely whether legal unreasonableness is available in respect of a Departmental officer’s understanding and application of the 2016 Guidelines. Merely because neither the procedural nor substantive limb of the power under s 351 is engaged does not necessarily preclude the availability of the ground of legal unreasonableness. For reasons which will be developed below, there are some significant differences between those two grounds of judicial review, even though, as Robertson J pointed out in Jabbour, it may be accepted that they overlap to some extent.

69    In view of the heavy reliance placed upon them by the first respondent, it is appropriate to say something more about both Plaintiff S10 and SZSSJ.

Plaintiff S10

70    Plaintiff S10 involved four requests by four different plaintiffs for Ministerial intervention which raised one or more of the powers in ss 48B, 195A, 351 and/or 417 of the Act. As French CJ and Kiefel J pointed out at [5], the plaintiffs’ histories had some common elements. In all four cases the plaintiffs had failed in administrative review challenges in either the Migration Review Tribunal or the Refugee Review Tribunal. Each of the four plaintiffs had submitted at least one request for Ministerial intervention under one or more of the relevant provisions and each plaintiff had had his or her case considered personally by the Minister on at least one occasion under either s 351 (one plaintiff) or s 417 (in the case of the other three plaintiffs). Other requests by three of the plaintiffs were refused by Departmental officers applying the 2009 Guidelines and consequently those requests were not forwarded to the Minister (presumably, however, in accordance with s 16 of the 2009 Guidelines the Minister was notified by the Departmental officers that the requests had been refused: see [94] below). In the case of the fourth plaintiff, the request was refused by the Minister personally. The central issue was whether the statutory provisions conferring dispensing powers on the Minister required procedural fairness in the case of each plaintiff.

71    As Charlesworth J has pointed out, different approaches were taken by various members of the Court in Plaintiff S10 in characterising the assessment process under the 2009 Guidelines. I respectfully agree with her Honour’s analysis and observations, including her Honour’s conclusion in the present proceedings that the Minister has not made any advanced procedural decision to consider requests referred under the 2016 Guidelines (see at [284]). The evidence in both appeals indicates that no statutory process of consideration had begun. Importantly, however, both requests for Ministerial intervention were “screened out” by the Departmental officers concerned and, equally significantly, there is no evidence that the Minister was informed of that outcome. In contrast with the previous guidelines, the 2016 Guidelines contained no requirement equivalent to s 16 of the 2009 Guidelines that the Minister be notified if a request was refused by a Departmental officer (see [95] below).

72    It is desirable to set out [30] and [31] of the joint judgment of French CJ and Kiefel J (footnotes omitted):

30    The dispensing provisions and other like provisions in the Act have a distinctive function in its legislative scheme. The Act creates a range of official powers, duties and discretions, particularly in relation to the grant of visas, which are tightly controlled by the Act itself and, under the Regulations, by conditions and criteria to be satisfied before those powers and discretions can be exercised. The dispensing provisions stand apart from the scheme of tightly controlled powers and discretions. They confer upon the Minister a degree of flexibility allowing him or her to grant visas which might not otherwise be able to be granted because of non-satisfaction of substantive or procedural requirements. The powers so conferred are conditioned upon a ministerial judgment of the “public interest”. That is a term to which it is difficult to give a precise content. It has been described in this Court as “a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any object the legislature could have had in view’”. The dispensing provisions require the Minister to be personally accountable to the Parliament for decisions to grant visas made under them. Both the wide purposes for which the powers conferred by the dispensing provisions can be exercised and their non-compellable nature, indicate that they cannot be enlivened by a request for their exercise nor by the existence of circumstances which might be thought, in the public interest, to attract their application.

31    The dispensing provisions do not in terms provide for applications or requests for the exercise of a ministerial discretion. Nevertheless, they are drafted on the assumption, which recognises the practical reality, that requests will be made. They provide that the Minister has no duty to consider whether to exercise the power they confer, whether or not requested to do so. Other provisions of the Act operate upon the assumption that such requests will be made and that representations and communications will be made to the Minister, the Minister's staff or officers of the Department in relation to such requests. The Regulations provide for the grant of Subclass 050 (Bridging (General)) visas which permit a non-citizen to remain in, or travel to, enter and remain in Australia, during a specified period or until a specified event happens. Primary criteria for the grant of a bridging visa include the making of a request to the Minister to make a determination under s 48B of the Act and the making of a request under ss 351 or 417.

SZSSJ

73    SZSSJ raised the question whether an internal Departmental process known as “International Treaties Obligations Assessments” (ITOAs), which were conducted in accordance with procedures set out in the Department’s publicly available Procedures Advice Manual, needed to comply with procedural fairness requirements. The purpose of the ITOAs in the circumstances of SZSSJ was to assess the effect of a data breach on Australia’s international obligations with respect to affected applicants, all of whom had applied for protection visas and were held in immigration detention. The assessments were conducted in the context of the Minister having non-compellable powers under ss 195A and 417 so as to lift a statutory bar to the making of an application for a visa in the case of s 48B. It may be interpolated that the non-compellable power in s 351 did not arise but for present purposes I see no reason to distinguish that particular non-compellable Ministerial power of intervention from those considered in SZSSJ. For completeness, it should also be noted that no issue arose in SZSSJ regarding the application of either the 2009 Guidelines or the 2016 Guidelines.

74    In holding that the ITOA process had to comply with procedural fairness requirements in the particular circumstances in SZSSJ, the following matters were critical. First, there was an unchallenged “important factual finding” by the Full Court below that the Minister had personally decided to consider whether to exercise the powers conferred by ss 48B, 195A and 417 in respect of the visa applicants affected by the data breach (at [33]). In other words, the procedural limb in terms of the distinction between procedural and substantive decision-making had commenced.

75    The significance of this finding relates to the principles drawn from Plaintiff S10 and Plaintiff M61 concerning the construction and application of those provisions, in particular that each power involved two distinct decisions. They were described as a procedural decision, to consider whether to make a substantive decision and a separate substantive decision, namely whether to grant a visa or lift the bar.

76    Secondly, processes undertaken by the Department to assist the Minister’s consideration of the possible exercise of a non-compellable power take their character from what the Minister personally has or has not done. Where the Minister has made a personal procedural decision whether to make a subsequent substantive decision, internal processes by the Department to assist the Minister’s consideration of that matter necessarily has a statutory basis in relation to the Minister’s prior procedural decision. Accordingly, that internal Departmental process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention (at [54]). That is because, in the particular circumstances of SZSSJ, the effect of prolonging immigration detention necessarily affected the person’s legal rights and interests (see at [75]). That is not to say, however, that the legal rights and interests of other people who seek Ministerial intervention and are not in immigration detention are unaffected (see further below).

77    It is desirable to set out at [76] and [77] of SZSSJ (footnotes omitted):

76    Plaintiff M61/2010E and Plaintiff S10/2011 show that the powers conferred by ss 48B, 195A and 417 of the Act have the potential to attract the presumption in two distinct ways. In the case of the Minister personally making a procedural decision to consider whether to make a substantive decision or of the Minister personally making a substantive decision to grant a visa or to lift the bar, the exercise of the power is apt to affect the interest of an applicant in the actual or potential relaxation of a legal prohibition on his or her continued presence in Australia. In the case of an officer of the Department engaging in a process of assessment after the Minister has made a procedural decision, the exercise of power is apt to affect the interest in liberty of an applicant whose immigration detention is prolonged by that process.

77    What Plaintiff M61/2010E and Plaintiff S10/2011 critically hold is that, while the presumption is displaced by the scheme of the Act in its application to the personal exercise of power by the Minister, the presumption is not displaced in relation to the exercise of power by an officer of the Department. Procedural fairness is required as an implied condition of the exercise by the officer of statutory power to engage in the process of assessment where the exercise of that power is apt to prolong immigration detention.

78    Having found that the Full Court below was correct to hold that procedural fairness obligations were owed to the applicants, the High Court nevertheless allowed the appeal on the basis that those requirements had not been breached.

(iii) The significance of s 351(7)

79    The first respondent contended that, even if it be assumed that a condition of legal reasonableness applied to the making of the substantive decision under s 351, he disputed that reasonableness conditioned the possible making by the Minister of a procedural decision under s 351(1). The first respondent placed particular reliance on the express statement in s 351(7) that the Minister does not have a duty to consider whether to exercise the power in respect of any decision in any circumstances.

80    I do not accept that contention. Merely because the power under s 351 is not compellable does not mean that the obligation to act reasonably in the legal sense is displaced. The more important point is that, while the Minister does not have a duty to consider whether to exercise the power under s 351(1) in respect of any request, the Minister plainly has a statutory discretion in relation to the matter. That is sufficient to attract the general principle in Minister for Immigration and Citizenship v Li [2013]     HCA 18; 249 CLR 332. To adopt Gageler J’s reasoning in Li at [92], a condition of reasonableness is presumed absent “an affirmative basis for its exclusion or modification”. It is open to the Parliament to displace the implied condition of reasonableness on the exercise of that discretion, but the terms of s 351(7) are insufficient to displace the statutory presumption. The object of that provision is to displace the general presumption that there is a duty to consider whether or not to exercise the discretionary power to intervene and grant a visa, as opposed to displacing a requirement to act reasonably in respect of both the preliminary procedural step and the subsequent substantive step.

81    To the extent that the first respondent contended that there was no scope for legal unreasonableness to apply other than in respect of a statutory power, it should be rejected. As Nettle and Gordon JJ stated in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [88]-[89] (footnotes omitted, emphasis added):

88    The standard of reasonableness is derived from the applicable statute but also from the general law.

89    First, there is a legal presumption that a discretionary power, statutorily conferred, must be exercised reasonably in the legal sense of that word. That is, when something is to be done within the discretion of the decision‑maker, it is to be done according to the rule of reason and justice; it is to be done according to law.

To similar effect, see Li at [63]-[65] per Hayne, Kiefel and Bell JJ.

(iv) Are rights or interests potentially affected?

82    The first respondent contended that, contrary to Robertson J’s reasoning in Jabbour at [91], the conduct of a Departmental officer in not referring a request to the Minister anterior to the making of any procedural decision by the Minister does not affect any “right” or “interest” of the person who made the request. He submitted that the officer’s conduct in not referring a request does not form part of the Minister making any “procedural decision” of the kind described in Plaintiff S10 and SZSSJ. He further submitted that no such “procedural decision” had been made by the Minister in Jabbour or in the case of either Mr Davis or DCM20. The first respondent referred in particular to the observations of French CJ and Kiefel J in Plaintiff S10 at [3], that assessments by officers are not “themselves capable of affecting, defeating or prejudicing rights [or] interests”.

83    In my respectful view, the first respondent has overstated the significance of the issue of adverse effect on individual rights and interests where the appellants’ complaint is one of legal unreasonableness and not procedural unfairness. In particular, it is clear from cases such as Li that the implied condition that statutory powers or discretions will be exercised reasonably does not depend upon whether or not the particular discretion or power adversely affects individual rights or interests. That is to be contrasted with the position regarding procedural fairness, where the statutory implication that procedural fairness requirements apply only arises where the relevant power has the potential adversely to affect individual rights or interests (see, for example, Kioa v West [1985] HCA 81; 159 CLR 550 and Plaintiff S10 at [3] per French CJ and Kiefel J).

84    Moreover, and in any event, I respectfully agree with Robertson J’s finding in Jabbour at [91] that the interests and potential rights of people who make requests for Ministerial intervention are affected by the administrative action taken under the 2016 Guidelines. As his Honour found, those 2016 Guidelines provide a purpose and set out criteria or considerations. In contrast with the 2009 Guidelines in Plaintiff S10, the 2016 Guidelines contain no requirement for the Minister to be informed if the Departmental officer decides not to refer a request for Ministerial consideration (see [94] below). Accordingly, the Minister may not even be aware of the existence of the request and thus there will be no opportunity for the Minister to take a different view on the procedural component. Although there is no legal right as such, the individual’s interest in having the Minister consider the request and possibly grant the request is potentially stymied by the Departmental officer’s anterior decision. The following observations of Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10 are apposite:

69    A non‑citizen who is in the position of the plaintiffs and seeks the engagement and favourable exercise of the dispensing powers under the federal statute with which these cases are concerned does so to obtain a measure of relaxation of what otherwise would be the operation upon non‑citizens of the visa system; it is the requirements of that system which must be met to lift what otherwise are the prohibitions upon entry and continued presence in Australia. This is sufficient to satisfy the principles just discussed.

70    The defendants cannot succeed solely upon the ground that the failure to engage the exercise in their favour of the dispensing power, is not apt adversely to affect the interests of those seeking to engage the exercise of those powers.

85    It is also relevant to note that it appears that both Mr Davis and DCM20 held bridging visas while their respective requests for Ministerial intervention were being considered. Evidently the bridging visas were extended and remain in place, presumably because of the present legal proceedings. Although neither appellant is in immigration detention, the effect of their each holding a bridging visa prevented and continues to prevent their removal from Australia as otherwise would be required by s 198 of the Act. That is another reason why their legal rights and interests were potentially at risk depending upon the outcome of their requests for Ministerial intervention.

86    As the High Court has stated in the context of explaining common law principles which inform the construction of statutes which confer decision-making authority, such principles are “not derived by logic alone”, cannot be treated as “abstractions disconnected from the subject matter” to which they relate and “are not so delicate or refined in their operation that sight is lost to the fact that ‘[d]ecision-making is a function of the real world’” (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [28] per Kiefel CJ, Gageler and Keane JJ, a passage which was affirmed recently in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [32] per Kiefel CJ, Gageler, Keane and Gleeson JJ).

87    As to the first respondent’s submission that because the Departmental officers’ assessments of the requests against the 2016 Guidelines were “non-statutory” they could not be the source of any right to have the requests brought to the Minister’s attention, I respectfully agree with Charlesworth J’s reasons for rejecting that contention at [253] to [270] of her Honour’s reasons for judgment.

88    As noted above, the Solicitor-General accepted that the carrying out of the assessments involved the exercise of executive power under s 61 of the Constitution. There is an extensive discussion of the concept of “executive power” by Gageler J in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [115]-[146]. His Honour referred approvingly to Brennan J’s tripartite categorisation of executive power under s 61 in Davis v Commonwealth [1988] HCA 63; 166 CLR 79 at 108 (i.e. a statutory (non-prerogative) power or capacity, a prerogative (non-statutory) power or capacity, or a capacity which is neither a statutory nor a prerogative power). In my view, it would be inapt to describe assessments by Departmental officers of intervention requests as instructed by the Minister in the 2016 Guidelines as involving merely a “bare capacity” under s 61 of the Constitution. Rather, those assessments have an effect on legal rights (and interests) arising from the fact that they are carried out uniquely as an act of the executive government and not from the application to those assessments of the same substantive laws as would be applicable if the assessments were done by a non-public actor. No issue arises in these appeals of the effect of outsourcing.

89    Finally, it is important to emphasise that in the current appeals the first respondent did not dispute that either appellant had standing to bring the judicial review applications which challenged the relevant administrative action on the ground of legal unreasonableness. Necessarily, therefore, the first respondent has accepted that the appellants are persons who are aggrieved in the relevant sense in order to seek the particular judicial review relief which they did (see generally Plaintiff S10 at [68] per Gummow, Hayne, Crennan and Bell JJ).

(v) The role of Departmental officers in applying the Guidelines

90    The first respondent contended that it was wrong to characterise a Departmental officer’s non-referral of a request as involving a “constructive failure to exercise jurisdiction”. That is because “jurisdictional error” is an expression which describes a material failure to comply with one or more statutory preconditions or conditions, resulting in a decision lacking the necessary characteristics for it to be given force and effect by a statute (citing Hossain at [24] per Kiefel CJ, Gageler and Keane JJ).

91    There is some force in this submission but, ultimately, the issue is one of semantics. The submission would apply equally to judicial review of a prerogative power, but the Solicitor-General accepted that some such powers were susceptible to judicial review on at least some grounds. The remedies available under s 39B of the Judiciary Act 1903 (Cth) are not confined to jurisdictional errors. If the assessments here are amenable to judicial review on the ground of legal unreasonableness, as I believe to be the case, it is not necessary to use the language of jurisdictional error in granting appropriate relief in a suitable case.

92    The first respondent submitted that the work done by Departmental officers simply “involves the acquisition of information and categorisation of requests or cases”, referring to what French CJ and Kiefel J said in Plaintiff S10 at [51]. They contended that this work “involves mere advice or assistance to the Minister anterior to the administration of the Act, and by reference to the Guidelines which do not have the status of law” (referring to what the plurality said in Plaintiff S10 at [99]).

93    These submissions should not accepted. They are predicated on an incorrect assumption that the 2016 Guidelines relevant to these appeals are in substantially similar terms to the 2009 Guidelines considered in Plaintiff S10. As mentioned above, the 2016 Guidelines require Departmental officers to do much more than simply acquire information, categorise requests or provide advice to the Minister. In contrast with the 2009 Guidelines, under the 2016 Guidelines a Departmental officer is instructed to review all requests for Ministerial intervention and to reject, without notifying the Minister, any request which the officer considers to be of a kind which does not satisfy the criteria in the 2016 Guidelines for referring a request to the Minister. Significantly, a Departmental officer who assesses a request and considers that under the 2016 Guidelines, the request fails to meet the relevant criteria, is instructed to reject the request. In contrast, under the 2009 Guidelines, where an officer assessed a request as not being suitable for referral to the Minister, the officer was required to inform the Minister that the request had been denied. Under those previous guidelines the Minister was able to take a different view to that of the officer. The effect of the 2016 Guidelines in these two appeals is to have Departmental officers responsible for screening out requests which do not meet the relevant criteria in the 2016 Guidelines and no subsequent opportunity is provided in those guidelines for the Minister to take a different view on whether or not a particular request should be considered.

The 2009 Guidelines as considered in Plaintiff S10

94    These 2009 Guidelines applied to ministerial intervention requests received on or after 14 September 2009. One of the stated purposes of those guidelines was to inform Departmental officers when to refer a case to the Minister so that he or she could decide whether to consider exercising such powers in the public interest. The 2009 Guidelines applied to the ministerial intervention powers in ss 345, 351, 391, 417, 454 and 501J of the Act. Sections 9 to 11 comprised the Minister’s instructions as to which cases were to be brought to his or her attention. Those sections dealt with the “public interest”, referral by a review tribunal and unique or exceptional circumstances respectively. Sections 13 to 17 comprised the Minister’s instructions as to how cases would be brought to his or her attention. Section 16 dealt with the topic of initial requests for the exercise of public interest powers. It should be set out in full, noting in particular the instruction to Departmental officers that where a case fell outside the ambit of ss 9 to 11 of the 2009 Guidelines, Departmental officers were instructed to “bring the case to my attention through a short summary of the issues in schedule format, so that I may indicate whether I wish to consider the exercise of my power” (emphasis added in text):

16    INITIAL REQUESTS FOR THE EXERCISE OF PUBLIC INTEREST POWERS

If a request for me to exercise my public interest powers in respect of a person is received and I or another Minister has not previously considered the exercise of the public interest powers (whether in a schedule or as a submission) in respect of that person (whether in respect of the person’s present or any previous visa application) an officer is to assess that person’s circumstances against these guidelines and:

•    for cases which fall within the ambit of section 9 Public interest, section 10 Referral by a review tribunal and section 11 Unique or exceptional circumstances of these guidelines, bring the case to my attention in a submission so that I may consider exercising my power or

•    for cases falling outside the ambit of section 9 Public interest, or cases which fall outside the ambit of both section 10 Referral by a review tribunal and section 11 Unique or exceptional circumstances of these guidelines, bring the case to my attention through a short summary of the issues in schedule format, so that I may indicate whether I wish to consider the exercise of my power.

If I do not wish to exercise, or consider exercising my power, the department should reply on my behalf that I do not wish to exercise my power.

Where a case is in the process of being litigated, the following approach should be adopted depending on the circumstances - where:

•    a visa applicant has started litigation, and it is a repeat request for Ministerial intervention, I generally consider it inappropriate to consider as specified in section 7 Cases which may be finalised without further assessment

•    there is a Bridging E visa refusal, the case officer may use their discretion to process the request if it falls within these guidelines.

In all circumstances, where a case is referred to me and is in the process of being litigated, case officers are to advise me of the status of the case.

The 2016 Guidelines

95    As noted above, the 2016 Guidelines which are relevant to both these appeals are those which were signed on 11 March 2016 and reissued with a slight change of name on 29 March 2016. The 2016 Guidelines related to the ministerial intervention powers under ss 351, 417 and 501J. One of the stated purposes of these guidelines was to “confirm that if a case does not meet these guidelines, I do not wish to consider intervening in that case” (s 1). Section 4 of the 2016 Guidelines described cases that should be brought to the Minister’s attention. Sections 6 and 7 dealt with cases that should not be brought to the Minister’s attention, which included cases that did not meet the 2016 Guidelines and were described in s 7 as “inappropriate” for the Minister to consider. The 2016 Guidelines instructed the Department that it should finalise these cases without referral to the Minister and advise the affected person accordingly. Significantly, the 2016 Guidelines did not include a provision similar to that in s 16 of the 2009 Guidelines considered in Plaintiff S10. Rather, the effect of the 2016 Guidelines was to devolve to Departmental officers’ sole responsibility for rejecting a ministerial intervention request where it did not meet the 2016 Guidelines and without any notification being given to the Minister of such rejections.

96    For all these reasons, I reject the first respondent’s contention that Jabbour is wrong in concluding that a decision made by a Departmental officer in purported compliance with the 2016 Guidelines is amenable to judicial review for legal unreasonableness. That is not to say, however, that all Commonwealth public administration is amenable to judicial review on that ground. Such a sweeping proposition must be rejected having regard to Brennan J’s oft-cited statements in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36.

Has legal unreasonableness been established in either appeal?

97    I respectfully agree with Charlesworth J’s reasons for concluding that legal unreasonableness has not been established in either appeal. I also respectfully agree with her Honour’s conclusion and reasoning concerning proposed ground 2 in Mr Davis’ appeal. I wish to say something more, however, regarding ground 1 in Mr Davis’ appeal.

Ground 1 in Mr Davis’ appeal

98    Ground 1 of Mr Davis’ notice of appeal essentially claims that the primary judge erred in not finding that both decisions by the Assistant Director (Ms Dix) involved jurisdictional error because of unreasonableness in the legal sense. Those decisions are dated 8 May and 20 May 2019. The decisions responded to requests dated 11 February and 15 May 2019 respectively made by Mr Davis’ representative, seeking Ministerial intervention.

99    The second request included a claim that in Ms Dix’s first decision dated 8 May 2019, no consideration had been given to the statutory declaration by Ms Giddins concerning her dependency on Mr Davis’ support. It was submitted that she had “almost total reliance on him for physical and emotional support”. This submission was made in the context of s 4 of the 2016 Guidelines, which describe “unique and exceptional circumstances” as including:

[S]trong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen…

100    Justice Charlesworth’s reasons for rejecting ground 1 of the appeal may be summarised as follows:

(1)    The Assistant Director erred in finding that the first decision had taken into account the effect on Ms Giddins if Mr Davis was removed.

(2)    The Assistant Director also erred in characterising Mr Davis’ second request as a “repeat request”. This was because, although the claimed effects on Ms Giddins had been raised in the first request, it had not been previously considered (see the definition of “repeat requests” in s 10.2 of the 2016 Guidelines).

(3)    Even though the Assistant Director was wrong to characterise the second letter of request dated 15 May 2019 as a “repeat request”, she nevertheless proceeded substantially to consider the asserted effects upon Ms Giddins by reference to the materials provided by Mr Davis’ representative. Active consideration was given by Ms Dix to the issue of compassionate circumstances within the meaning of s 4 of the 2016 Guidelines as though the matter had not previously been considered and it was open to Ms Dix to conclude that there was no evidence that no other person in the community was able to provide support to Ms Giddins of the kind she said Mr Davis provided.

(4)    The primary judge was correct to conclude that the demonstration of error in treating that letter as a “repeat request” could not assist Mr Davis, for the reasons given by the primary judge.

101    I respectfully agree with her Honour’s reasons as summarised in sub-paragraphs (a) to (c) above, with one additional comment which I will make shortly. I respectfully disagree, however, with sub-paragraph (d), for reasons which I will also shortly explain.

102    As to sub-paragraphs (a) to (c), I was initially concerned that Ms Dix may have erred in her second decision and the reasons she provided for that decision. In particular I was concerned with Ms Dix’s central finding that there was no evidence to show that someone else in the community could provide the services to Ms Giddins if Mr Davis could not do so. The foundation of my initial concern related to the fact that, in the second request dated 15 May 2019, after drawing attention to the fact that Ms Giddins’ statutory declaration had been overlooked in the first decision, Mr Davis’ representative submitted that Ms Giddins had “almost total reliance on [Mr Davis] for physical and emotional support”. The request letter then stated that further documentation and evidence concerning Ms Giddins’ relationship and reliance on Mr Davis could be provided upon request. Hence, to the extent that Ms Dix required further material in respect of this topic, she could have requested it. Instead, she made a finding that there was no evidence which established that no one else could provide the support provided to Ms Giddins by Mr Davis.

103    My initial concerns on that matter are, however, answered by s 9 of the 2016 Guidelines, which describes how to make a request for intervention. Section 9 states (emphasis added in body of text):

9.    How to make a request

Requests for intervention must be made to me in writing, including by email.

All information relevant to the request, including accurate English translations (which should be done by a translator accredited by the National Accreditation Authority for Translators and Interpreters), must be provided at the time the request is made. The Department will assess the request based on the information available at the time of the request.

If documents cannot be provided because of credible and/or compelling circumstances beyond the control of the person who is the subject of the request, the reasons must be provided in writing when the request is made and the Department will consider an appropriate response.

104    Thus, under the 2016 Guidelines, it was incumbent upon Mr Davis to provide all relevant information relating to his request at the time the request was made. There was no obligation on Ms Dix to request that additional information be provided in support of that part of the request relating to compassionate circumstances. This might strike some as a harsh outcome, but it is the product of the terms of the 2016 Guidelines. It is a matter for Mr Davis and his advisors to consider whether a further request should be made having regard, of course, to the definition of a “repeat request” in the 2016 Guidelines.

105    It is also important to bear in mind, in reviewing the reasons provided by Ms Dix in the Minute of her second decision, that those reasons are not a formal statement of reasons. It is well established that a judicial review court needs to exercise particular self-restraint in reviewing such reasons (see, for example, Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] per French CJ, Bell, Keane and Gordon JJ and Jabbour at [112] per Robertson J).

106    Turning now to sub-paragraph (d) of my summary of Charlesworth J’s reasons for rejecting ground 1 (which relates to the primary judge’s findings and reasoning), in my respectful view the primary judge erred in two respects. The first error is in [45] of his Honour’s reasons for judgment, where he held that it was “clearly open” to the Assistant Director to regard the second request as a “repeat request” because a previous request had already been made and denied. This conclusion and reasoning is inconsistent with the wording of the 2016 Guidelines as Charlesworth J has highlighted in her reasons for judgment.

107    The second error appears at [46] of the primary judge’s reasons for judgment, which should be set out in full (emphasis added):

46    In any event, as the Minister submitted, the applicant’s reference to the second request or assessment does not assist him. In the second request, the applicant made submissions as to why particular circumstances were “unique or exceptional” that essentially reflect the submissions which he now contends the Assistant Director unreasonably erred in failing to accept. It is readily apparent that the Assistant Director did consider the circumstances the subject of those submissions in assessing the first request, and was not satisfied that they presented unique or exceptional circumstances.

108    The error which is evident in [46] arises from the distinction between the first and second requests. His Honour’s reasons focus upon Ms Dix’s assessment of the first request, as opposed to the second request. The difficulty with that approach is that it fails to take account of the fact that the consideration of the first request was fundamentally flawed because it failed to pay any regard to Ms Giddins’ statutory declaration and the submissions made by Mr Davis in respect of that material.

109    Although I consider that the primary judge erred in these two respects, for the following reasons I do not consider those errors to be material appealable errors.

110    As the High Court held in SZVFW, where it is claimed on an appeal that a primary judge has erred in not finding that an administrative decision is unreasonable in the legal sense, it is necessary for the appeal court to decide the question for itself (see at [18] per Kiefel CJ, at [56] per Gageler J, at [78] ff per Nettle and Gordon JJ and at [154]-[155] per Edelman J).

111    Justice Charlesworth has explained at [326] and [327] of her Honour’s reasons for judgment why Ms Dix’s second decision was not affected by legal unreasonableness. In sum, her Honour has concluded that even though it was wrong of Ms Dix to treat Mr Davis’ letter dated 15 May 2019 as a “repeat request”, nevertheless Ms Dix gave active consideration to Ms Giddins’ statutory declaration, as was said to be evident in the reasons for Ms Dix’s second decision. Her Honour concluded that it was open to Ms Dix to conclude that, despite Ms Giddins’ evidence, there was no evidence that no one else could provide Ms Giddins with the support she claimed to get from Mr Davis.

112    I respectfully agree with her Honour’s conclusion and reasons and would also draw attention to what I have said above regarding the significance of s 9 of the 2016 Guidelines.

113    Accordingly, although I consider that the primary judge erred in these two respects, the errors are not material. That is because, for the reasons given by Charlesworth J, it was not legally unreasonable for Ms Dix to decline to refer Mr Davis’ second request.

Other matters in Mr Davis’ appeal

114    I also respectfully agree with Charlesworth J’s reasons for:

(a)    granting leave for Mr Davis to run a new argument first raised in written submissions as to whether the promulgation of the 2016 Guidelines constituted an advance procedural decision by the Minister (see at [238] ff) (and her Honour’s reasons for rejecting that argument); and

(b)    rejecting leave for proposed ground 2 of Mr Davis’ notice of appeal (at [331]-[332]).

Conclusion

115    For these reasons, I respectfully agree with the orders proposed by Charlesworth J in both appeals.

Associate:

Dated:    23 November 2021

REASONS FOR JUDGMENT

MORTIMER J:

116    I have had the considerable advantage of reading in draft the reasons of Kenny, Besanko, Griffiths and Charlesworth JJ. I gratefully adopt the descriptions of the factual background, the applicable legislative provisions and administrative guidelines, and the parties’ arguments, which are all set out in the reasons of Charlesworth J.

117    Except for the refusal of leave on Mr Davis’ proposed ground 2, I agree with the orders proposed by Griffiths and Charlesworth JJ in each appeal.

118    I respectfully agree with their Honours on the following matters.

(a)    Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438 is correctly decided, and legal unreasonableness is available as a ground of review in relation to the exercise of the executive power by the second respondent in each appeal. I adhere to the view I expressed to that effect in Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457 at [22], and consider Robertson J’s analysis in Jabbour at [79]-[102] correct, for the reasons his Honour gives.

(b)    The decision making of the departmental officers under the 2016 Guidelines affects the rights and interests of those who have made requests. I agree with the reasons of Griffiths J at [82]-[85], and those of Kenny J at [43]-[46].

(c)    I agree that the decision of the second respondent on Mr Davis’ request was not legally unreasonable, for the reasons given by Griffiths J at [98]-[113], including the extent to which his Honour agrees with the reasoning of Charlesworth J.

(d)    I also agree with Griffiths J’s specific observations about s 351(7) of the Migration Act 1958 (Cth) at [79]-[80] of his Honour’s reasons. I would add that [59] of Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 supports the approach his Honour has taken.

(e)    I agree that the decision of the second respondent on DCM20’s request was not affected by either of the errors alleged, and that the primary judge’s reasoning was correct for the reasons given by Charlesworth J at [356]-[364].

(f)    For the reasons given by Charlesworth J at [235]-[242], Mr Davis should be permitted to make a new argument in response to the Minister’s Notice of Contention; namely that the 2016 Guidelines should be characterised as an advance procedural decision made by the Minister under s 351 of the Migration Act. I consider this argument should be rejected, because of the terms of the guidelines themselves, which indicate the contrary. I agree with Charlesworth J’s observations at [265], but below I add some further observations regarding the content of the 2016 Guidelines.

119    In addition to the observations of Griffiths J at [82]-[85] concerning whether the decisions of the departmental officers and the process under the 2016 Guidelines affected rights and interests, in my opinion it is important to recall the connection between the decision-making processes for which the 2016 Guidelines provide, and the liberty of those who seek the exercise of these dispensing powers. As I explain at [159] the three dispensing powers to which the 2016 Guidelines apply come after the processes in the Migration Act are exhausted. No temporary or permanent visa is available to persons such as Mr Davis and DCM20, save for a visa such as the bridging visas it appears both appellants held at the time of the appeal – which are contingent on their participation in the process under the 2016 Guidelines. Otherwise, they are exposed to loss of their liberty by mandatory detention. It is but happenstance that the two appellants in this case are not detained. Many of those who seek a favourable exercise of these dispensing powers are detained. Their detention may be prolonged by participation in the processes under the applicable guidelines, but the more important point is that the only way they can secure their liberty in Australia is by seeking a favourable exercise of the dispensing powers. If for some reason their position is not thereby to be characterised as one where their rights to liberty are “affected” by their access to these processes (which I do not accept), then at the very least they have an “interest” in trying to regain their liberty, and permission to remain in the Australian community, by seeking a favourable exercise of these dispensing powers. A screening out decision by departmental officers, because their circumstances are not “unique or exceptional”, directly affects that interest.

120    On two matters, I respectfully differ from the reasoning of other members of this Court. First, I consider leave should be granted to Mr Davis to raise the second ground of appeal concerning the validity or lawfulness of the 2016 Guidelines. However, I would not uphold the ground, as I explain below.

121    Second, I am not presently persuaded there is a duty enforceable by an order in the nature of mandamus, on the departmental officers (or indeed perhaps on the Minister) to “consider whether to consider” exercising dispensing powers: cf Charlesworth J at [253]-[270] (Griffiths J agreeing at [87]). At [253], Charlesworth J frames the question as whether the “appellants have a right that is enforceable by the remedies they seek”, and at [258] frames the correlative duty as “a duty in a Departmental officer to bring an intervention request to the Minister’s attention in the absence of any lawful instruction from the Minister authorising the officer not to do so”. Her Honour concludes at [261]-[262] that it is the “personal and discretionary nature of the procedural power that gives rise to a duty in the Departmental officer to bring the request to the Minister’s attention”, which duty would be enforceable by mandamus.

122    With respect, I am not persuaded this conclusion rests easily with the acknowledged personal nature of the powers in s 351, with s 351(7), and with a finding that the screening out process in the 2016 Guidelines is lawful. The question does not arise on these appeals because the Minister did, through the 2016 Guidelines, establish a system within the department to support the functions contemplated by the three dispensing powers in ss 351, 417 and 501J of the Migration Act. In the circumstances, and given my preliminary opinion about the matter, I prefer not to decide whether there is such a duty.

THE VALIDITY OR LAWFULNESS OF THE 2016 GUIDELINES

123    This is the first matter upon which I respectfully disagree with the conclusions of the other members of the Court. It is necessary to give a lengthier explanation of the basis for my disagreement.

Leave to raise ground 2 should be granted

124    It is in the interests of the administration of justice for leave to be granted for this ground to be raised. There is no prejudice to the respondents; the ground raises a question of law which turns on a characterisation of the 2016 Guidelines, the construction of the Migration Act and a consideration of previous authorities. Validity is an important issue, particularly for people like the two appellants, each of whom has had their request “screened out” by departmental officers so that their requests have never even reached the Minister. Their futures in Australia are at stake, and, if they do not consent to their removal, it is likely that their liberty is at stake too, at least for some portion of time until they are removed. The argument was confined and the Minister was on notice of the argument, and has responded in writing to it. In my respectful opinion, the argument is deserving of consideration even if present authority is against it. In the circumstances, it is appropriate for this Court to consider whether the process adopted to deal with the appellants’ requests for an exercise of the s 351 power is lawful.

The ground has merit but is precluded by authority

125    Powers such as those in s 351 have been described as “dispensing” powers – powers that enable the responsible Minister to grant a visa notwithstanding non-satisfaction of visa criteria, and notwithstanding a person has exhausted the processes for which the legislative scheme provides: see Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [69]. While it is correct that the content of the 2016 Guidelines expressly contemplates other mechanisms by which the question of intervening in an individual case might reach the Minister, and expressly recognises the Minister may learn of a case personally and decide to consider whether to intervene, or decide to intervene (see, e.g., section 12 of the 2016 Guidelines), it cannot be disputed that the principal mechanism by which individuals are likely to seek the engagement of these powers is through a request process – that is, as French CJ and Kiefel J described it in Plaintiff S10 at [31], the “practical reality”. The Executive has established a request-based system, and the Minister has imposed constraints on how it should operate, through the 2016 Guidelines. The legislative scheme of the Migration Act itself recognises the request system. It does so through the bridging visa provisions (see Charlesworth J’s reasons at [210]; Plaintiff S10 at [31]), and also through the text of s 351(7) itself.

126    While they have no statutory force, and are not in that sense binding by operation of statute on departmental officers (cf s 499 of the Migration Act), guidelines such as the 2016 Guidelines are properly seen as instructions to departmental officers: see Plaintiff S10 at [90]. It is not suggested by the Minister that departmental officers could choose not to follow them if they considered there were, for example, cogent reasons to depart from them in an individual case: cf Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 at 645. Therefore, the content of the 2016 Guidelines is to be treated as setting out a system for the administration and consideration of requests for intervention. As Robertson J observed in Jabbour at [91], that system is not one which governs only the conduct of departmental officers, but purports also to prescribe the way in which requests must be made for an exercise of the dispensing powers. The creation of a system for the processing of such request thus is apt to affect the interests of those who seek the exercise of a dispensing power, as Robertson J also pointed out in Jabbour at [91]. If they do not follow the system prescribed, and fall within its terms, the requests will not be considered by departmental officers: see for example section 7 of the 2016 Guidelines and the list of features which will make it “inappropriate” for a request to even be considered by departmental officers. See also section 10, which imposes limits on the way individuals can send documents to be considered by the departmental officers, contemplating that documents sent after a request is lodged may be rejected.

127    That is not the only way that the rights and interests of individuals seeking exercise of the dispensing powers might be affected, as I explain below.

128    Mr Davis’ submissions accept that in Plaintiff S10 (at [91]) the plurality of the High Court stated that it was “within the competence” of the Minister to issue guidelines. Mr Davis’ point, which I accept, is that in neither Plaintiff S10, nor in any subsequent decision except the decision of Moshinsky J in BAQ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 369, has it been necessary to consider whether a particular form of guideline is permissible, and consistent with the Migration Act.

129    There will be limits on what is permissible, Mr Davis contends, because of the personal nature of the power conferred by s 351. I accept that proposition. It is a power which, like the powers in s 48A and s 195 “may only be exercised by the Minister personally”: Plaintiff M61 at [62] (emphasis original).

130    If, in substance or effect, guidelines or policy transfer to departmental officers that which Parliament has given personally to the Minister, those guidelines or policies could have no legal effect, nor could decisions made relying on any such transfer of power. That, on Mr Davis’ argument, is what the screening out aspects of the 2016 Guidelines do.

131    Section 7 contains the relevant instruction given to departmental officers:

Cases which do not meet these guidelines for referral… are inappropriate for me to consider.

132    That section appears under the main heading of “Cases that should not be brought to my attention”.

133    Similar instructions are found under the main heading “How requests for Ministerial intervention will be progressed” and the sub-heading “First requests”:

If the Department assesses that the case does not have unique or exceptional circumstances such as those described in section 4 of these guidelines and is inappropriate for me to consider, as described in section 7 of these guidelines, it will not be brought to my attention.

If the Department assesses that the case does not have unique or exceptional circumstances such as those described in section 4 of these guidelines, and is not inappropriate for me to consider, it will be finalised by the Department without referral to me.

(Section 10.1)

134    It was common ground that, in contrast to the 2009 Guidelines and as Griffiths J points out at [71] and [94]-[95] of his Honour’s reasons, requests which departmental officers decide do not meet the criteria of “unique or exceptional circumstances” as explained in section 4 of the 2016 Guidelines are not referred to the Minister at all. The system established by the 2016 Guidelines contemplates the Minister will never see them, or know of their existence. Replies to individuals are sent by the departmental officers. The system contemplates the Minister will have no opportunity to reflect on whether the Minister agrees with the assessment made by a departmental officer that a person’s circumstances are not “unique or exceptional”.

135    The system under the 2016 Guidelines contemplates the Minister will have no opportunity to think about whether the circumstances of such individuals might make it in the public interest for the Minister to consider whether to exercise the power in s 351, there being no debate that the concept of the “public interest” is not susceptible to definition or confinement, being wider than the express circumstances set out in the guidelines: see, e.g., Plaintiff S10 at [30] (and the authorities there cited) and at [91(ix)].

136    Yet the power in s 351 is a power personal to the Minister.

137    Therefore, contrary to the Minister’s submissions, the 2016 Guidelines go beyond simply providing “assistance” or “advice” to the Minister, or the “acquisition of information and categorisation of requests or cases”. The function performed by departmental officers includes a function of “screening out” requests which, by forming their own opinion on the material in the request, those officers decide do not involve “unique or exceptional circumstances”. That criterion is evaluative, involving a value judgment. So too are some of the examples in section 4 of the 2016 Guidelines about what kind of circumstances will meet this description:

(a)    “strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit”;

(b)    “compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person”;

(c)    “exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia”;

(d)    “circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case”;

(e)    “a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa”.

138    These criteria are replete with several layers of value judgments. If, as the Minister submitted, and this Court agrees, the 2016 Guidelines as a whole are not to be understood as embodying a decision by the Minister to consider whether to exercise a personal power to grant a visa (sometimes called a “procedural decision”) even if the criteria in the guidelines are met, then this supports and strengthens the characterisation of the screening out function performed by departmental officers as one which s 351 intends the Minister, and only the Minister, will perform. This factor suggests there has been a delegation by the Minister to the departmental officers, as if the Minister has said – “you tell me if, having looked at the material submitted, you “think” it is in the public interest, as I have defined it for you, that I consider granting this person a visa. If you do not think so, reject it and you need not tell me you have done so”.

139    I consider there is merit in Mr Davis’ submissions in respect of ground 2 that the system established by the 2016 Guidelines devolves or delegates to departmental officers the function that s 351 intends be performed personally by the Minister. It is the personal nature of the power in s 351 which gives this argument force. Plaintiff M61, Plaintiff S10 and Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 all establish that the personal character of the power or function reposed in the Minister by these dispensing powers includes the personal function or power of deciding whether or not to consider exercising the dispensing power. Insofar as the 2016 Guidelines give to departmental officers a function of deciding, for all practical intents finally, that a person’s request does not raise “unique or exceptional circumstances”, that a request should not be referred to the Minister and that the individual should be informed of a negative outcome, they disable the Minister from forming a different view, when it is the Minister’s view which Parliament has clothed with both stages of the dispensing power. All the more so when the 2016 Guidelines essentially make this process a once-off process for each individual, subject only to very limited exceptions. The 2009 Guidelines had a different and non-disabling effect, because departmental summaries of cases that fell outside the screening criteria imposed in those guidelines were sent to the Minister for review. That suggests a true assistance function.

140    Contrary to [26.1] of the Minister’s further written submissions, this argument presents no jurisdictional issue for this Court. Departmental officers – as officers of the Commonwealth – are amenable to relief granted by this Court in the exercise of its jurisdiction under s 39B of the Judiciary Act 1903 (Cth), just as they would be amenable to relief granted under s 75(v) of the Constitution. Mr Davis’ contention about the invalidity of the 2016 Guidelines is capable of resulting in at least declaratory relief, in the same way as the Court granted declaratory relief in Plaintiff M61. Injunctive relief may also be available if there was a threatened detention or removal of a person who claimed a departmental officer had, on unlawful instructions from the Minister, purported to determine the matter which was left by Parliament to the Minister personally by s 351.

141    Mr Davis’ argument may not be directly precluded by the ratio in any High Court authority, depending on how one understands [91] in Plaintiff S10. For myself, I am prepared to accept Mr Davis’ submissions that [91] in Plaintiff S10 is a general statement of competence and therefore a general statement as to lawfulness, by reference only to the competence and lawfulness of the 2009 Guidelines in issue before the Court in that case. That is reinforced by [46] in Plaintiff S10, to which Robertson J referred in Jabbour at [85] on this matter. I do not consider French CJ and Kiefel J, or the plurality, intended to make some kind of blanket statement that all and any guidelines or instructions issued by the Minister in connection with these dispensing powers would be valid. I take the same view of the statements in [50] of Plaintiff S10 by French CJ and Kiefel J that:

If, on ministerial instructions, certain classes of request or case are not even to be submitted to him or her for consideration, the position in law is unchanged.

142    As senior counsel for Mr Davis submitted, these general statements do not purport to engage with the specific content of any guidelines beyond the 2009 Guidelines before the court in that case.

143    This, I respectfully venture, is the logical difficulty with assuming the conclusions in Plaintiff S10 apply to the present circumstances. On the facts in Plaintiff S10, at least one request of each of the four individuals was referred to the Minister and the Minister personally decided not to consider intervening or declined to intervene: see [7], [8], [16], [20] and [41]. It was this feature, in my respectful opinion, which led to the reasoning of French CJ and Kiefel J at [46]:

In this case the Minister has taken no statutory step equivalent to that taken in the Offshore Processing Case. It was submitted for the Minister and the Secretary that, properly understood, each of the guidelines in this case does no more than facilitate the provision of advice to the Minister in particular cases and otherwise operate as a screening mechanism in relation to any requests which the Minister has decided are not to be brought to his or her attention. The issue of the guidelines itself did not involve a decision on the part of the Minister, acting under the relevant section, to consider the exercise of the power conferred by it. That submission should be accepted.

144    This finding reflected the agreed facts before the Court in all four individual cases decided in Plaintiff S10, and also reflected the state of the 2009 Guidelines as Griffiths J has pointed out in his Honour’s reasons, whereby at least a summary of cases not referred was sent to the Minister for review, so that it was the Minister who could decide what should happen. In other words, on the facts in Plaintiff S10 none of the plaintiffs were screened out before their requests reached the Minister because of an opinion formed by departmental officers about whether their circumstances were sufficiently unique or exceptional – those criteria being a component of the public interest. The Minister determined their fate. That process is entirely consistent with s 351, in my respectful opinion.

145    Therefore, it may be the case that Plaintiff S10 does not, strictly, preclude the validity argument raised by Mr Davis in relation to the 2016 Guidelines. However, I accept there are sufficient dicta in that decision against at least some of the propositions central to Mr Davis’ argument that the Court should be cautious in accepting it.

146    Further, there are two decisions of this Court which more clearly preclude the argument. Robertson J’s decision in Jabbour, a decision about the 2016 Guidelines, is clear in rejecting an argument of the kind now put. More recently, and with full cognisance of the decision in Jabbour, Moshinsky J rejected a similar argument in BAQ21 at [60]-[76]. BAQ21 also concerned the 2016 Guidelines. This included consideration of an argument developed as I have outlined above – namely that Plaintiff S10 did not preclude a contention about a particular form of guidelines other than that considered in Plaintiff S10: see BAQ21 at [60]. Moshinsky J rejected this contention largely because his Honour found it inconsistent with Plaintiff S10: see [65]. At [68] his Honour found there is no relevant difference between the 2009 and 2016 Guidelines, a finding which differs from the view taken by the Court.

147    Moshinsky J also relied on Bedlington v Chong (1998) 87 FCR 75 – a decision where the Full Court found there had been an “advance directive” given by the Minister, and therefore a case more akin to Plaintiff M61 and SZSSJ: see the passages extracted at [71] in BAQ21. After referring also to Raikua v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 370; 158 FCR 510, Moshinsky J then extracted (at [74]) a passage from SZSSJ, and concluded at [75]:

This passage implicitly accepts that it is open to the Minister to lay down guidelines setting out the circumstances in which a request is, or is not, to be referred to the Minister for consideration of the exercise of the power in s 417 and other like provisions. There is no suggestion that the laying down of such guidelines constitutes a delegation of the Minister’s powers or that the officers of the Department who apply the guidelines are exercising the Minister’s powers.

148    As with the previous decisions, in BAQ21, Moshinsky J was not invited to consider whether there are any limits at all on the functions which officers might be instructed to perform by the Minister in making assessments of requests for intervention, in aid or in support of the dispensing powers in provisions such as s 351 or s 417. Submissions of that kind were put on behalf of Mr Davis on the appeal and at a level of principle I accept there are limits, because the executive action is connected with, and undertaken for the purpose of specific statutory powers, which have particular characteristics, such as their personal nature. For example, a question of invalidity might arise if the Minister were to instruct departmental officers to form an opinion whether they think it is in the public interest for any case to be referred to the Minister, thus duplicating the criterion in s 351(1) but reposing the opinion and function entirely in the officers rather than in the Minister.

149    After Plaintiff S10, it appears established that these kinds of guidelines are not “advance procedural decisions” and officers’ functions are therefore not performed “under and for the purposes of” the Migration Act (see SZSSJ at [56]). But it is unclear whether the effect of decisions such as BAQ21 is that there are no limits whatsoever on the functions departmental officers can be instructed to perform for the Minister in circumstances such as the present.

150    In Jabbour, Robertson J referred to two decisions refusing special leave to appeal to the High Court as authorities also supporting the validity of the guidelines. While these may not have any direct precedential effect, they are of course entitled to careful consideration by an intermediate appellate court. In Plaintiff S330/2018 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] HCATrans 28, Gageler J observed:

First, the plaintiff says that the Minister cannot delegate the exercise of his powers under ss 417 and 48B. So much cannot be doubted. But the Minister has not purported to delegate either of his powers in this case. Neither power has been sought to be exercised. The departmental officer in this case decided only not to refer the plaintiff’s request to the Minister. And it is not the case that either s 417 or s 48B requires the Minister personally to consider every request submitted to the Department for intervention under those provisions.

151    In 2018, his Honour had made a similar statement in Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168:

The first ground is that the Minister cannot delegate the exercise of his powers under sections 417 and 48B of the Act. It is true that both the Minister’s power to substitute for a decision of the Tribunal a decision that is more favourable to an applicant and the Minister’s power to determine that the restriction in section 48A of the Act does not apply to an applicant can only be exercised personally. But neither power has been exercised, or has been purported to be exercised, in relation to the plaintiff. Indeed, the Minister’s statutory powers have not been engaged at all. All that has happened here is that an officer of the Department has decided not to refer the two requests from the plaintiff to the Minister. If the plaintiff, by this ground of the application, seeks to argue that the Minister must personally consider every request for intervention under either of those sections, such an argument is unavailable in light of prior decisions of the Full Court of this Court.

152    The Court was invited by the submissions made on behalf of Mr Davis to conclude that BAQ21 was wrong. In light of the present state of authority, that submission cannot be accepted.

153    The present authorities in the High Court establish that a dispensing power such as s 351 can have two stages or aspects: a decision whether or not to consider exercising the power, and then, if affirmative, a decision whether or not to exercise the power. It is not apparent on the face of such provisions that the power can only be exercised in two stages, since s 351(1) is not broken down in this way. The Minister could for example simply decide to exercise the power having seen media reports about a particular individual and on inquiry being persuaded a visa should be granted. Rather, the characterisation given by the High Court stems from the presence of s 351(7) and its perceived consequence for the nature of the power in s 351(1). In Plaintiff S10, a system with close analogies to the one in the 2016 Guidelines was held not to constitute the first stage or aspect of the dispensing power in s 351(1). That is why, as I understand it, in the special leave extracts Gageler J found that the statutory power has not been engaged “at all”: cf SZSSJ and Plaintiff M61.

154    Therefore, what event is it that does not engage the dispensing power “at all”? It is the opinion and conclusion of the departmental officer that there are no “unique or exceptional circumstances”, as the guidelines instruct that officer to understand that phrase. Yet this criterion is a public interest criterion, or at least part of it; otherwise the guidelines would have a different legal difficulty in that they would be directed to a matter extraneous to the statutory power the execution of which they were designed to aid.

155    In my respectful opinion, the approach in the present authorities is troubling, and difficult to reconcile as between them, and in principle. However, I accept the present state of authority, read as a whole, can be described as precluding the argument Mr Davis seeks to raise by ground 2. For that reason, although I would grant leave to raise it, and although in my respectful opinion it may have some merit, present authorities preclude it being accepted at intermediate appellate Court level.

THE PROCESS UNDER THE 2016 GUIDELINES

156    Charlesworth J describes some features of the 2016 Guidelines at [265]-[268] and [284] of her Honour’s reasons. Griffiths J also describes some of their features at [93] and [95] of his Honour’s reasons. I wish to add some observations about the process under the 2016 Guidelines.

157    In relation to the responsive new arguments by Mr Davis that the 2016 Guidelines constitute a procedural decision by the Minister of the kind found to exist in Plaintiff M61 and SZSSJ, I would emphasise the following matters.

158    The 2016 Guidelines are specific to ss 351, 417 and 501J. They do not deal with s 195A.

159    Thus, all three provisions share certain important characteristics. Each arises at the end of a process or processes under the Migration Act concerned with applications for visas, refusal, grant and/or cancellation. They operate on individuals who have been through the merits review processes for which the Migration Act provides, and who have had access to judicial review as provided by the Migration Act. In that sense, individuals who need to rely on these provisions are at the end of the processes for which the Migration Act provides. That is in contrast to those to whom s 46A applies, who are seeking permission to commence a visa application process, having had no access at all to the legislative scheme and no assessment of their claims of protection. That was the situation in Plaintiff M61. The present features – being those at the end of the processes of the Migration Act – were noted by the plurality in Plaintiff S10 at [99(viii)]. That may well be one of the explanations for the finding by French CJ and Kiefel J in Plaintiff S10 (at [51]) that the officers’ decision-making functions were not conditioned by any obligations of procedural fairness. I note, as senior counsel for Mr Davis submitted, that the plurality made no such finding: see Plaintiff S10 at [92]-[94]. Rather, at [100] the plurality found the dispensing powers themselves were not conditioned with any such obligation:

Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness.

Cf SZSSJ at [48].

160    The factual situation in SZSSJ was quite distinct. That situation arose because of policies put in place after what was described as a “data breach”, which released identifying information about large numbers of protection visa applicants. People affected by the data breach were at various stages of the processes under the Act. Therefore the policy response had to deal with all the dispensing powers in the Migration Act which might cover the various stages that people’s applications had reached. But like Plaintiff M61, the instructions given to departmental officers applied to all individuals in those situations.

161    The 2016 Guidelines are not a policy response in the same way as the guidelines in Plaintiff M61 or SZSSJ were. They are promulgated to provide a system to manage requests for the exercise of these dispensing powers. As I have explained by reference to the reasons of French CJ and Kiefel J in Plaintiff S10, requests are the ‘practical reality’ of the existence of dispensing powers like this when people have otherwise exhausted the processes under the Migration Act. And they are expressly contemplated by s 351(7).

162    The content of the 2016 Guidelines makes it clear they do not provide instructions which exhaust the universe of situations in which the three dispensing powers might arise for consideration. They deal primarily if not only with requests, and how requests are to be managed. That is apparent from the following.

(a)    At section 2, the 2016 Guidelines describe requests for intervention being referred to the Assistant Minister.

(b)    Section 3 includes a statement about the Minister’s expectations of people who are “requesting my intervention”.

(c)    I accept section 4 describes “cases that may be referred to me” and does not in its terms turn on a request, but that must be read in the context of sections 8, 9 and 10 which wholly concern the making of requests for intervention.

(d)    Section 8 contemplates that the Minister’s department may initiate a request, including (but it would seem not limited to) where a case is referred for the Minister’s attention by a review tribunal.

163    However it is section 12 which indicates the 2016 Guidelines do not encompass the universe of situations in which the dispensing powers might be considered, and/or exercised:

My powers to intervene in an individual case, where I believe it is in the public interest to do so, exist whether or not the case is brought to my attention in the manner described above, as long as a decision has been made by a relevant review tribunal and that decision continues to exist (for example, the review tribunal decision has not been overturned by a court). I may consider intervening in cases where the circumstances do not fall within the unique or exceptional circumstances as described in section 4 of these guidelines, if I consider it to be in the public interest. Where I believe it is appropriate, I will seek further information to help me to determine whether to consider intervening in a case.

164    This section makes it clear the Minister has intended, as a matter of policy and outside the instructions given to departmental officers, to retain an ability to consider the exercise of any of the three dispensing powers without a request, of the Minister’s own motion and untrammelled by the criteria in section 4, but rather more broadly thinking about what is in the public interest.

165    That being the case, it is not possible to characterise the 2016 Guidelines as an exercise of the Minister’s power under s 351(1) to determine in advance “the circumstances in which the Minister wishes to be put in a position to consider exercise of the discretionary powers by the advice of department officers”: Plaintiff S10 at [91]. However, these features may strengthen the invalidity argument, if it were not precluded by authority.

BRIEF FURTHER OBSERVATIONS ABOUT REVIEW OF NON-STATUTORY EXECUTIVE POWER

166    Without seeking at all to depart from the analysis of Robertson J on this matter in Jabbour, I would respectfully add some observations of my own.

167    Through s 75, and s 75(v) in particular, the High Court has a “constitutional function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution”. There are two limbs to that statement by Gleeson CJ in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [6], the first being relevant to s 61 of the Constitution. The High Court, and any Chapter III Court invested with the same jurisdiction through s 39B of the Judiciary Act, has a constitutional function of protecting the subject against any violation of s 61, where such protection is warranted because of the way in which an exercise of s 61 affects the rights and interests of an individual.

168    It might be said, as Stephen J did in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 204, that statutory powers will “seldom if ever be conferred in gross, devoid of purposes or criteria, express or implied, by reference to which they are intended to be exercised”. The same is true of non-statutory executive powers, located as they are within a federal compact that is the Constitution, a “charter of the respective powers of the Commonwealth and the States” (Kruger v Commonwealth [1997] HCA 27; 190 CLR 1 at 42), and one framed on the rule of law: Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193. As the authorities reveal, the purposes for which the powers are exercised may bring the exercise of the powers within subject matter appropriate for judicial review (affecting individual rights and interests), or may render the powers less appropriate to any such review – for example executive power exercised in the conduct of international relations at a policy level – see Petrotimor v Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3; 126 FCR 354; Toohey at 219.

169    In cases such as the present, there is a singular, causal and close connection between (on the one hand) the non-statutory executive power exercised by departmental officers to decide to screen out individuals like Mr Davis and DCM20 because their circumstances are not sufficiently “unique or exceptional” to warrant the Minister’s attention, and (on the other) the statutory power exercised by the Minister personally to grant a visa if the Minister thinks it is in the public interest. Both relate to assessments of the circumstances of individuals who have interests affected by the exercise of those powers, including their future liberty and their ability to remain lawfully in Australia. If, as is not disputed, the usual implications of rationality and reasonableness apply to the Minister’s exercise of personal statutory power under s 351, it would give s 61 of the Constitution an irrational operation to suggest that in making the choices they are instructed to make, departmental officers could act arbitrarily, illogically, and in a way no reasonable officer would act, with impunity from supervision by a Chapter III Court, including the High Court. Where non-statutory executive power is exercised in the maintenance and execution of the laws of the Commonwealth, then making the same implication of reasonableness and rationality which attends the powers conferred by those laws of the Commonwealth (subject to any clear statutory intention) would seem a modest proposition.

170    Writing extra-judicially, Sir Gerard Brennan said:

Judicial review, under our system, is and is intended to be a fetter on the Executive’s pursuit of its policies; it is intended to make the courts the arbiter of legal propriety in the processes of administration. Ours is a system of inevitable, if not intended, inefficiency. Some inefficiency in achieving the objectives of the Executive is the price we pay for assigning to the courts the function of declaring and applying the law as well to government as to the citizen. But we do not assign the exercise of executive power to the courts and we would not accept the straitjacketing of executive power so that its exercise is made to conform with the court's view of what is correct or preferable.

(Brennan G, ‘The purpose and scope of judicial review’ (1982) 2 Australian Bar Review 93 at 94)

171    Recognising that distinction at a basic level of principle, circumstances such as those which gave rise to these appeals also fall into the category described by Bowen CJ in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 277:

The increasing activities of government affecting citizens has led to a situation where ministerial responsibility is not able to reach down far enough to supervise the detailed dealings of government with members of the public. As a consequence the courts have increasingly been brought in to resolve disputes arising between aggrieved members of the public and the administrative arm of the government or its servants. The role of the courts has not been that of substitute decision-making. Their role has been to maintain an oversight of legality and fairness in the decision-making process.

172    What the appellants in this case seek, and what Robertson J in Jabbour upheld, is no more than the kind of oversight of which Bowen CJ spoke. See also the Chief Justice’s conclusion on reviewability at 278, and Sheppard J’s observations at 281. At 304, Wilcox J said:

The critical matter is the nature and effect of the relevant decision. Nature and effect involve two elements: justiciability in the sense described by Lord Diplock in CCSU and, if the decision is justiciable, whether it contains some feature — for example, a relationship to national security or to international relations — which makes judicial review inappropriate in the particular case.

173    To like effect are the observations of Gummow J in Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 369-370, and the opinion of Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [20]-[22] and [45].

174    Where non-statutory executive power is as closely and causally connected to statutory power as the screening out decisions of departmental officers in the present case, then that connection supplies a principled basis to characterise powers which have s 61 as their source as subject to common law minimum conditions of a correct understanding and application of the law, rationality and reasonableness.

CONCLUSION

175    I agree with the orders proposed by Griffiths and Charlesworth JJ, save for the refusal of leave to Mr Davis to rely on proposed ground 2 in his appeal.

Associate:

Dated:    23 November 2021

REASONS FOR JUDGMENT

CHARLESWORTH J

176    The appellants, Mr Martin John Davis and DCM20, are non-citizens. They each made an application for a visa under the Migration Act 1958 (Cth) and in each case the application was refused by a delegate exercising powers of the Minister then responsible for administering the Act. Those decisions were affirmed on review by the Administrative Appeals Tribunal (AAT) and the formerly-named Migration Review Tribunal (MRT) respectively in the exercise of review powers conferred under s 349(2)(a) of the Act.

177    At relevant times s 351(1) of the Act provided that the Minister may substitute a more favourable decision for that made by the MRT (in the case of Mr Davis) or the AAT (in the case of DCM20) if the Minister thinks it is in the public interest to do so. The power to intervene under s 351 may only be exercised by the Minister personally:  s 351(2). The Minister does not have a duty to consider whether to exercise the power in respect of any decision, whether he or she is requested to do so or in any other circumstances:  s 351(7).

178    Section 351 is extracted at [204] below. It is cast in similar terms to other interventionist powers, including those conferred under s 48B (a power to lift a statutory bar to the making of a valid protection visa application) and s 195A and s 417 (each a power to grant a visa). As the High Court confirmed in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, each section “confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar”, French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ (at [53]): and see Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (at [70]).

179    In March 2016, the Minister issued Guidelines in relation to a number of intervention powers, including that conferred by s 351 of the Act. The Guidelines are directed to officers employed within the now-named Department of Home Affairs. They define the circumstances in which requests for intervention under s 351 are to be referred to the Minister for “possible consideration”.

180    The appellants each made repeated requests for intervention under s 351 of the Act (intervention requests). The identity of the persons who assessed the requests differs in each case. For present purposes it is convenient to refer to them generically as the Departmental officers.

181    The Departmental officers did not refer the intervention requests to the Minister because, in their respective assessments, the requests did not fulfil the conditions for referral as set out in the Guidelines.

182    The appellants each commenced an application in this Court for relief under s 39B(1) of the Judiciary Act 1903 (Cth). Among other things, they argued that the assessments were amenable to judicial review on the ground of legal unreasonableness. As to the availability of judicial review on that ground, the appellants relied on the judgment of Robertson J in Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438. The respondents contended that Jabbour had been wrongly decided, but acknowledged that the decision should be followed by another single judge of the Court, unless shown to be plainly wrong. The primary judge in each case proceeded from the premise that the assessments were amenable to review, but dismissed the applications on the basis that legal unreasonableness had not been established in the particular case:  Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791 and DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022.

183    The appellants appeal from the respective judgments. The appeals may be referred to as the Davis appeal (VID399/2020) and the DCM20 appeal (NSD831/2020). The first respondent to the Davis appeal is the now-titled Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The relevant Departmental officers are joined as respondents in each case.

184    The proceedings raise common issues concerning the availability and ambit of judicial review including the utility of the remedies sought and discrete issues concerning the application of principle to the facts of each case.

185    For the reasons that follow, each of the appeals should be dismissed.

ISSUES

Notices of appeal

186    The grounds of appeal in each case allege that the primary judge erred in failing to find that the decision not to refer the intervention request to the Minister was legally unreasonable and (in the case of DCM20) in failing to find that the relevant Departmental officer misconstrued the Guidelines. The grounds of appeal presuppose the amenability of the decisions to judicial review for legal unreasonableness and the competency of this Court to determine the issues.

187    In addition, Mr Davis seeks leave to introduce a new argument, embodied in a proposed second ground of appeal, expressed as follows:

In the alternative to Ground 1 of the appeal, Federal Court at first instance erred in not finding that the actions of the Second or Third Respondents were beyond their power or jurisdiction.

PARTICULARS

(a)    The Minister had a personal power, which he could not delegate, under section 351 of the Act, to consider or not to consider whether to substitute a more favourable decision than that of the Administrative Appeals Tribunal. He therefore could not issue Guidelines with the intention that they would prevent referral to him of requests for him to exercise his power under section 351 of the Act.

(b)    The Second and Third Respondents, despite the Guidelines, which are not a Direction under section 499 of the Act, had no power or warrant to determine that the request should not be referred to the Minister for him personally to determine whether to consider that request, but on the contrary they were obliged to refer the request to the Minister.

Notices of contention

188    The respondents have filed a notice of contention in each appeal. Each notice contains two contentions.

189    The first contention is to the effect that the primary judge ought to have dismissed the application for judicial review on the basis that the “so-called ‘decision’” not to refer the relevant request to the Minister was not amenable to review on the grounds alleged at first instance. In response to that contention, Mr Davis advances an argument concerning the characterisation of the Guidelines that was not raised at first instance. It is different to that sought to be raised by his proposed second ground of appeal. It will be necessary to consider whether Mr Davis should have leave to raise the new argument.

190    The second contention concerns the availability and utility of relief sought at first instance and on the appeals. As expressed in the amended notice of contention filed in the Davis appeal on 21 October 2020, it contends that the Court could not lawfully (or, alternatively, should not):

2.1.    issue a writ of mandamus to require an officer to ‘consider and determine’ the appellant’s request because:  (i) no officer was under a duty enforceable at the suit of the appellant to do so; and (ii)  in the absence of any duty of the Minister to consider the exercise of power under section 351 there was no utility in granting mandamus;

2.2.    issue a writ of certiorari to quash the so-called ‘decision’ because:  (i) the so-called decision had no legal effect or consequences; and (ii)  in the absence of any relevant duty there was also no utility in granting certiorari;

2.3.    issue a writ of prohibition, or an injunction, to prevent the respondents from ‘giving effect to’ the so-called ‘decision’ not to refer the appellant’s request to the Minister because the so-called decision had no legal effect;

2.4.    make a declaration that an officer ‘erred in law’ in making the so-called ‘decision’ not to refer the appellant’s request to the Minister because:  (i) no legal right or interest of the appellant (or any of the parties) was affected by the so-called ‘decision’; and (ii) it would not have been appropriate for the Court to issue a bare declaration, not declaratory of any right, and amounting (at most) to an acknowledgment of a past infringement of some constraint of reasonableness in the exercise of executive power.

Constitutional issues

191    The appellants have each served notices pursuant to s 78B of the Judiciary Act identifying a matter arising under the Constitution. The notice filed in the DCM20 appeal expressed the issue as “whether a provision of the Constitution, such as s 61 or s 75, affects consideration of whether the officer’s decision or action is amenable to judicial review and, if so, the scope or grounds of that review”. As expressed in the Davis appeal, the issues are expressed by reference to steps in the reasoning of Robertson J in Jabbour.

192    It is necessary to determine the issues arising on the respondents’ notices of contention and the s 78B notices before turning to the grounds of appeal.

THE NOTICES OF CONTENTION

193    The respondents seek to draw from the authorities a number of related propositions which are said to foreclose a conclusion by this Court that the assessments were amenable to judicial review on any ground, including on the ground of legal unreasonableness. The propositions may be broadly summarised as follows:

(1)    the Departmental officers had not exercised statutory powers and no statutory processes had otherwise been engaged at the time that the assessments were made;

(2)    the assessments against the Guidelines did not affect the appellants’ rights or interests so as to attract judicial review, including because neither the Act nor the Guidelines could be a source of rights giving rise to the particular remedies sought in each proceeding;

(3)    the classification of the assessments as “non-statutory” has the consequence that there is no implied obligation (enforceable by an application for judicial review) to act within the bounds of reasonableness of the kind that might attend the exercise or performance of a statutory power or function; and

(4)    no obligation to act within the bounds of reasonableness can otherwise be sourced in the law, nor can the content of any such obligation be identified outside of a statutory context.

194    Each of those propositions must be tested against the factual and legal framework in which the impugned assessments were made.

Legal framework

The Constitution

195    The starting point is Chapter II of the Constitution. Its purpose is “to establish the Executive Government as a national responsible government in light of constitutional history and the tradition of the common law”:  Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, Gageler J (at [138]).

196    Section 61 of the Constitution provides:

61. Executive power

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

197    The respondents accept that the authority of the Departmental officers to conduct the assessments could be sourced in s 61.

198    Section 64 of the Constitution provides that the “Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.”

199    From these two provisions it may be seen that departments of State expressly form a part of the institutions of the executive government, as do the officers (Ministers) appointed to administer those departments. Ministers and other officers engaged within departments of State have (at least) the two functions expressed in s 61:  the maintenance of the Constitution and the execution of the laws of the Commonwealth. In Plaintiff M68/2015, Gageler J approved (at [129]) the “profound opinion” expressed by the first Attorney-General Alfred-Deakin that Commonwealth executive power “is administrative, as well as in the strict sense executive; that is to say, it must obviously include the power not only to execute laws, but also to effectively administer the whole Government”:  Deakin, “Channel of Communication with Imperial Government:  Position of Consuls:  Executive Power of Commonwealth”, in Brazil and Mitchell (eds), Opinions of Attorneys-General of the Commonwealth of Australia, Volume 1; 1901-14 (1981) 129 at 130, 131.

200    The term “laws of the Commonwealth” is a reference to statute law “for the only power to make Commonwealth law is vested in the Parliament”:  Western Australia v Commonwealth (1995) 183 CLR 373, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 487). The execution of the laws of the Commonwealth means the doing of something authorised by those laws. Already it can be seen that the expression “non-statutory” invites questions. The line between statutory and non-statutory powers is not necessarily drawn by s 61 of the Constitution.

The Act

201    For the purposes of the Act, the “Minister” is the Minister responsible for administering the Act:  Acts Interpretation Act 1901 (Cth) (AI Act), s 19. The Hon Peter Dutton, was appointed by the Governor-General to the office of Minister for Immigration and Border Protection on 23 December 2014 and was the author of the Guidelines.

202    A reference in the Act to the “Department” is a reference to the department of State administered by the Minister:  AI Act, s 19A. By an Administrative Arrangement Order made on 30 September 2015 the Governor-General specified the matters to be dealt with by the Department of Immigration and Border Protection to include “Entry, stay and departure arrangements for non-citizens”.

203    Section 13 and s 14 of the Act define the circumstances in which a non-citizen is to be regarded as a lawful non-citizen or an unlawful non-citizen respectively. A non-citizen in the migration zone who does not hold a visa is an unlawful non-citizen. The classification of a person as an unlawful non-citizen has the consequence that the person is liable to be detained in immigration detention and removed from Australia:  s 189 and s 198 respectively, subject to recent amendments affected by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). In the exercise of review powers under Pt 5 of the Act, a decision not to grant a non-citizen a visa may be reviewed by the AAT.

204    Section 351 of the Act is contained in Pt 5. It is necessary to extract it in full:

351 Minister may substitute more favourable decision

(1)    If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

(2)    In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

(3)    The power under subsection (1) may only be exercised by the Minister personally.

(4)    If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

(a)    sets out the decision of the Tribunal; and

(b)    sets out the decision substituted by the Minister; and

(c)    sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

(5)    A statement made under subsection (4) is not to include:

(a)    the name of the applicant; or

(b)    if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.

(6)    A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

(a)    if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b)    if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

(7)    The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

205    The power in s 351(1) may only be exercised if the Minister thinks that it is in the public interest to do so. The expression “public interest” has no fixed or precise content. It involves a value judgment, often to be made by reference to matters that are not clearly defined:  Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, Gummow, Hayne, Crennan and Bell JJ (at [99(v)]); see also O’Sullivan v Farrer (1989) 168 CLR 210, Mason CJ, Brennan, Dawson and Gaudron JJ (at 216). Such a power, “like any other form of statutory power, can only be understood in the context of the Act in which they appear”:   Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336, Hayne J (at [62]).

206    The legal effect of the exercise of the substantive power in s 351(1) is the avoidance or relaxation of the statutory regime that would otherwise be determinative of the review applicant’s status as an unlawful non-citizen. Subsections (4) to (7) impose upon the Minister an obligation to disclose to the Parliament the reasons why the substitution of the decision was thought by the Minister to be in the public interest. Those provisions recognise the extraordinary nature of the Minister’s power to dispense with any part of the detailed regime that Parliament otherwise intends should apply.

207    Subsection (7) contemplates that a non-citizen may make a request to the Minister for the exercise of the substantive power in subs (1) in his or her favour. As mentioned earlier in these reasons, the High Court has confirmed that the power in s 351 includes a procedural power to decide whether or not to consider any such request, and a substantive power to substitute a decision that is more favourable to the non-citizen.

208    Section 474(7)(a) of the Act (considered elsewhere in these reasons) puts beyond doubt that a privative clause decision includes a decision of the Minister not to consider the exercise of the power under s 351. It recognises that the Minister may decide to consider (or decide not to consider) a request for the exercise of the substantive power under s 351. It reflects the circumstance that the Minister has a discretion to consider the exercise of the substantive power, even though there is no duty to do so. Where a decision not to consider the exercise of the power is made, that statutory decision is amenable to judicial review, although not in this Court (s 476A) and not in the Federal Circuit Court of Australia (FCC) (s 476(2)).

209    The effect of s 351(2) is to expressly displace a presumption that would otherwise arise that the Minister is bound by the rules of procedural fairness in the exercise of the substantive power. Section 351(2) otherwise confirms that in exercising the power, the Minister is “bound by all other provisions of this Act”.

The Regulations

210    Where a person makes a request to the Minister to substitute a more favourable decision under s 351, and the person has not previously made such a request, the person fulfils an essential criterion for the grant of a bridging visa:  Migration Regulations 1994 (Cth), Sch 2, cl 050.212(6).

The Guidelines

211    As earlier mentioned, in March 2016, the Minister issued Guidelines in relation to the power conferred under s 351 of the Act and other intervention powers contained in ss 48B, 195A and 417. Guidelines having similar (although not identical) content have been issued or adopted by the Minister responsible for administering the Act from time to time. They take the form of mandatory instructions issued directly from the Minister and are expressed in the first person.

212    The Guidelines are to be interpreted as a whole. The words and expressions emphasised in bold below are particularly relevant to the task of characterisation to be undertaken later in these reasons. The added emphasis is my own.

213    Clause 1 of the Guidelines states that their purpose is to:

•    explain the circumstances in which I may wish to consider intervening in a case

•    explain how a person may request that I consider intervening in their case

•    explain when my Department should refer a case to me

•    confirm that if a case does not meet these guidelines I do not wish to consider intervening in that case.

214    Clause 2 contains a description of the Minister’s intervention powers, including (correctly):

What is and what is not in the public interest is for me to determine.

My power to intervene is personal and non-compellable. This means that although the powers are available to me under the Act, I do not have a duty to use or consider using any of the powers.

215    Clause 3 contains a statement of the Minister’s expectation that a person requesting intervention is to continue to make arrangements to leave Australia “while their request is being progressed”. The clause concludes with a statement of the Minister’s expectation that the person will leave Australia “if the request is unsuccessful”.

216    There follows a heading “Cases that should be brought to my attention”. Clause 4 is titled “Unique or exceptional circumstances”. It states that “[c]ases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers”. The listed circumstances include the following:

•    strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

•    compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person

•    exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

…

217    Clause 5 instructs that “for all cases referred” to the Minister under the Guidelines, the Department will provide information on “any other relevant issues”. A non-exhaustive list of other information is provided.

218    Clause 9 states that requests must be made in writing and that all information relevant to the request must be provided at the time that the request is made. It instructs the Department to “assess the request” based on the information provided at the time that it is made. Clause 10 states that the Department “will assess requests against these guidelines and will progress them as described below”. Clauses 10.1 and 10.2 are titled “First requests” and “Repeat requests”. They should be set out in full:

10.1 First requests

A request is a ‘first request’ if I or another Minister (current or previous) have not previously received a request to intervene in the person’s case (whether for the present or any previous visa decision) under any of the powers covered in these guidelines.

If the Department assesses that the case has unique or exceptional circumstances such as those described in section 4 of these guidelines, it will be brought to my attention in a submission. I may consider intervening if I think it is in the public interest to do so.

If the Department assesses that the case does not have unique or exceptional circumstances such as those described in section 4 of these guidelines and is inappropriate for me to consider, as described in section 7 of these guidelines, it will not be brought to my attention.

If the Department assesses that the case does not have unique or exceptional circumstances such as those described in section 4 of these guidelines, and is not inappropriate for me to consider, it will be finalised by the Department without referral to me.

If I do not wish to intervene or consider intervening in the case, whether or not it has been referred to me, the Department will reply on my behalf to the person or their authorised representative that I do not wish to intervene or consider intervening in that case.

10.2 Repeat requests

A request is a ‘repeat request’ if I or another Minister (current or previous) have previously received a request to intervene in the person’s case (whether for the present or any previous visa decision) under any of the powers covered in these guidelines.

I do not wish to consider repeat requests. Where I or another Minister (current or previous) have declined to intervene or consider intervening in a case, I expect the person concerned to leave Australia.

In limited circumstances, a repeat request may be referred to me if:

•    the Department is satisfied there has been a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request; and

•    the Department assesses that these new, substantive issues fall within the unique or exceptional circumstances described in section 4 of these guidelines.

Otherwise, the Department should reply on my behalf to the person or their authorised representative that I do not wish to consider intervening in the case.

(emphasis added)

219    Clause 11 contains a statement to the effect that if the Minister chooses to consider intervening, he may still choose not to intervene to grant a visa. It concludes with the following:

If a case is brought to my attention, the person or their authorised representative will be advised in writing of the outcome of their request.

If I choose not to intervene or consider intervening, I expect any person who is the subject of the request to leave Australia.

(emphasis added)

220    Clause 12 contains this statement:

Where I believe it is appropriate, I will seek further information to help me to determine whether to consider intervening in a case.

(emphasis added)

221    In Plaintiff S10/2011, the plurality (Gummow, Hayne, Crennan and Bell JJ) considered the application of guidelines previously issued in connection with the Minister’s interventionist powers. The plurality said that the term “guidelines” was apt to mislead, their content being in the form of directions by the Minister. That observation applies equally to the Guidelines under consideration in the present cases. They are not directions issued under s 499 of the Act, but they are nonetheless mandatory in their terms.

Previous Guidelines

222    The Court has been provided with guidelines (described on their face as “policy instructions”) issued by the Minister for Immigration and Citizenship (the Hon Chris Evans) on 14 September 2009 (Previous Guidelines). The Court was informed that the Previous Guidelines were those under consideration by the High Court in Plaintiff S10/2011. Some similarities and differences should be noted.

223    The Previous Guidelines are similar to the Guidelines in that they:

    contained instructions for the processing of requests;

    instructed the Department to classify requests against broad evaluative criteria including an assessment as to whether the request gives rise to unique or exceptional circumstances;

    distinguished between initial and repeat requests;

    contained a requirement that a person making a repeat request demonstrate a significant change in circumstances; and

    contained a statement that every person whose case was brought to the Minister’s attention was to be “advised of the outcome of their request”.

224    The Previous Guidelines differ from the Guidelines in respect of the consequences that follow from the classification of an initial request as not falling within the evaluative criteria. They relevantly provided that:

    requests fulfilling the criteria were to be brought to the Minister’s attention in the form of a submission “so that I may consider exercising my power”; and

    requests not fulfilling the criteria were to be brought to the Minister’s attention in the form of a submission “so that I may indicate whether I wish to consider the exercise of my power”.

(emphasis added)

225    In each class of case, the Previous Guidelines stated:

If I do not wish to exercise, or consider exercising my power, the department should reply on my behalf that I do not wish to exercise my power.

226    In respect of repeat requests, the Previous Guidelines specified that requests that raised new, substantive issues not previous considered and that otherwise fulfilled the qualifying criteria were to be brought to the Minister’s attention. They went on to instruct:

For other cases, the department should reply on my behalf that I do not wish to consider exercising my power.

Consideration

227    The appellants seek to have the judgments at first instance set aside. They seek substituted orders in the same terms as those sought on their originating applications. This Court may make orders that the Court at first instance could have made:  Federal Court of Australia Act 1976 (Cth), s 28(1)(b). In the exercise of its appellate jurisdiction, the Court must observe the constraints on its original jurisdiction.

228    The issue to be determined is not only whether the assessments are amenable to review on the ground of legal unreasonableness. It must also be established that the assessments are amenable to review on that ground in this Court. The Court must determine for itself whether the appeals are competent:  Re Macks; Ex parte Saint (2000) 204 CLR 158 (at [53]). Subject to what is said below about the agreement of facts, jurisdiction cannot be conferred by the consent of the parties:  Bunbury v Fuller [1853] 156 ER 47; Mason v Ryan (1884) 10 VLR (L) 335 (at 339).

229    Section 39B(1) of the Judiciary Act confers original jurisdiction upon this Court with respect to any matter in which a writ of mandamus, prohibition or an injunction is sought against an officer or officers of the Commonwealth. Section 476A of the Act provides that, despite any other law (including s 39B of the Judiciary Act and s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act)), this Court has original jurisdiction “in relation to a migration decision” if, and only if, one or more of the conditions in s 476A(1)(a) to (d) are fulfilled. None of the conditions is fulfilled in the present cases. Accordingly, before relief can be granted on the appeal it is necessary to be satisfied that the controversy before the Court is not “in relation to a migration decision”.

230    In the context of s 476A, the words “in relation to” have a narrow meaning. They directly connect the particular relief sought in a proceeding to the impugned migration decision:  SZSSJ at [60]. They do not, for example, capture collateral challenges to a migration decision in the context of a tortious claim such as false imprisonment:  Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 (at [7]).

231    The expression “migration decision” is defined in s 5 of the Act to include a “privative clause decision”, a “purported privative clause decision” and a “non-privative clause decision”. The expression “privative clause decision” is defined in s 474(2) to mean (relevantly) “… a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act …”.

232    A personal decision of the Minister to consider (or not to consider) the exercise of the power under s 351 of the Act is a separately defined “privative clause decision”:  Act, s 474(7)(a). It is a decision that the High Court (and only the High Court) has jurisdiction to review in the exercise of the power conferred upon it under s 75(v) of the Constitution:   SZSSJ at [69] – [71]; and see (in respect of the FCC) s 474(7) and s 476(2) of the Act.

233    Administrative action taken under the Act that is preparatory to the making of a substantive decision by the Minister under s 351 of the Act is conduct falling within the definition of a “migration decision”, as is a failure or refusal to make a decision:  s 474(3)(h) and (j) respectively. Such conduct is reviewable by the FCC in the exercise of powers conferred under s 476 of the Act (SZSSJ at [66] – [71]) but is not reviewable by this Court.

234    At first instance in both cases it was common ground that a Departmental officer’s decision not to refer a relevant request to the Minister was not a migration decision and so was not affected by the ouster of jurisdiction in s 476A of the Act. More specifically, it was not disputed that the relevant act of non-referral was done in the exercise of non-statutory executive power and so did not amount to a decision made, proposed to be made or required to be made “under” the Act. The respondents did not object to the competency of the applications for judicial review, premised as they were on the jurisdiction conferred under s 39B(1) of the Judiciary Act in relation to decisions or actions that did not fall within the definition of a “migration decision”.

A new argument

235    Mr Davis’s new argument is expressed in written submissions as follows:

23    … the Guidelines may be regarded as a ‘determination in advance of the circumstances in which the Minister will consider exercising his powers to intervene – that is, ‘I am prepared to consider exercising my power in the circumstances set out in the Guidelines’. Thus, the Guidelines contain ‘criteria to distinguish between requests which will not be referred and those that may be referred to the Minister for consideration whether to exercise the relevant power. The majority in Plaintiff S10 accepted a submission advanced by the Minister that the effect of the adoption of the Guidelines by the Minister was, relevantly, that ‘if a case is assessed as not meeting the guidelines, the Minister does not wish to consider the exercise of the dispensing power, and if a case is assessed favourably then the Minister does not wish to consider that exercise”.

24    It might be thought from that description that the adoption of the Guidelines by the Minister may even support a finding of fact that the Minister had made a procedural decision to consider the exercise of his powers to intervene in cases of the kinds identified in the Guidelines – including where there are ‘unique and exceptional circumstances’ as set out in Section 4 of the Guidelines.

(original emphasis)

236    Counsel for Mr Davis acknowledged that by advancing that new argument, a risk arose that the appeals may be found to be incompetent, particularly because the assessments of the Departmental officers may fall within the wider definition of a “migration decision”.

237    The respondents oppose the grant of leave, including for the reason that the argument departs from the joint position of the parties at first instance about the non-statutory nature of the assessments. The respondents also submit that they are prejudiced in an evidentiary sense by the introduction of the argument, because the intention of the Minister is a subject capable of being informed by oral evidence. It was submitted that the Minister might have adduced evidence going (at least) to “the prevalence of the practice of the Minister deciding not to consider” cases that had been brought to his attention under the Guidelines.

238    In my view, leave should be granted to advance the argument for four reasons.

239    First, the argument turns upon the interpretation of the text of the Guidelines. The argument will either be upheld by reference to that text or it will not. Its resolution is not aided by the subjective views of the Minister as to what the words in the document were subjectively intended to mean, nor by statistics concerning the ultimate fate of requests that have in fact been brought to the Minister’s attention. I am not satisfied that the respondents would suffer any material prejudice in an evidentiary sense should leave be granted. If I am wrong in suggesting no additional evidence may legitimately bear on the topic, there is no unfairness occasioned, having regard to the outcome.

240    Second, it is significant that the argument is responsive to the notice of contention filed by the respondents on the Davis appeal. The task of interpreting and characterising the Guidelines necessarily arises because of the nature of the issues advanced on the notice of contention. If the argument sought to be advanced is supported by the ordinary meaning of the Guidelines, it is difficult to see how that ordinary meaning could be ignored or supplanted with some other meaning when resolving the remaining issues. Notably, the characterisation now sought to be given to the Guidelines is not inconsistent with a submission made by the Minister in Plaintiff S10/2011 by reference to the Previous Guidelines (and accepted by the plurality in that case). The characterisation is not inarguable.

241    Third, in characterising the powers exercised by the Departmental officers, this Court must examine the particular instructions contained in the Guidelines as they apply to the two cases at hand. Whilst earlier authorities decided by reference to the Previous Guidelines may inform the task, the question is one of fact that must turn on the Guidelines in their present form. As will be seen, the assistance to be found in the decided cases is further limited by the discrete and different questions there decided, with particular regard to the challenged and unchallenged evidence, and the arguments that were and were not put.

242    Fourth, whilst in the ordinary course it may be open, and indeed desirable, for the parties to agree some common factual assumptions from which their competing arguments may proceed, the difficulty in this proceeding is that the relevant fact (namely whether the Guidelines constitute an advance decision by the Minister of a particular kind) is one that goes to the Court’s jurisdiction to decide all of the remaining issues.

243    Mr Davis’s application for leave to advance a further new argument by way of his second ground of appeal is in a different category. I take a different attitude to it, as explained later in these reasons.

244    The following analysis proceeds from an assumption that the Court’s jurisdiction to grant relief is not ousted by s 476A of the Act. It will be necessary to return again to the question of competency having regard of that analysis.

Rights and duties

245    These appeals do not call for an examination of the limits of this Court’s powers of judicial review in their application to non-public forms of executive power. Nor does any issue of justiciability arise. The particular kind of administrative action presently under consideration was described by Robertson J in Jabbour (at [92]) in terms that I respectfully adopt:

The nature of the administrative action, the relevant exercise of power, does not take it out of the mainstream of government actions either by reference to subject matter or as involving a matter of political judgment. These characteristics of the present non-statutory administrative action do not distinguish it from a statutory discretion. Although involving the exercise of a non-statutory power, the circumstances are ‘more closely related to justice to the individual than with political, social and economic concerns’:  South Australia v O’Shea (1987) 163 CLR 378 at 387 per Mason CJ. That the basis of review may be narrower than for government action under a statute does not have the consequence that judicial review is unavailable.  …

246    Section 75(v) of the Constitution provides that the High Court shall have original jurisdiction “in all matters … in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”. Section 39B(1)(a) of the Judiciary Act vests in this Court the equivalent jurisdiction, subject to limitations such as that in s 476A of the Act. This Court’s jurisdiction is vested in it by a law made under s 77 of the Constitution and is hence conditioned by the same requirement that there be a “matter”.

247    The word “matter” draws attention to the subject matter of the controversy before the Court. It is distinct from the legal proceeding in which the controversy is sought to be adjudicated. As the High Court said in Re Judiciary Act 1903-1920, & Navigation Act 1912-1920 (1921) 29 CLR 257 (at 265), “there can be no matter ... unless there is some immediate right, duty or liability to be established by the determination of the Court”;  see also Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, Gaudron and Gummow JJ (at 405). The question as to whether there exists a right, duty or liability cannot be separated from the question as to whether there is an available remedy. As Gaudron J said in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 (at [49]):

Absent the availability of relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the Court’s determination. Similarly, if there is no available remedy, there is no administration of the relevant law. Thus, as Gleeson CJ and McHugh J pointed on in Abebe v Commonwealth, ‘[i]f there is no legal remedy for a ‘wrong’, there can be no ‘matter’’.

(citation omitted)

248    And as Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 (at 35), “[j]udicial review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of administrative or executive power”.

249    The requirement that there be a “matter” demands close attention to the remedies sought in the two proceedings and the asserted rights that are sought to be enforced by them.

250    At first instance, Mr Davis sought a declaration to the effect that the relevant Departmental officer “erred in law” in deciding that his intervention request for ministerial intervention did not meet the guidelines for referral to the Minister, and a further declaration to the effect that his request “was not finalised”. In addition, he sought an order quashing the decision, a writ of mandamus (directed to the Departmental officer) “to consider and deal with” the request according to law and a writ or prohibition or an injunction preventing all of the respondents from giving effect to or relying on the decision. The Minister was joined as the third respondent at first instance (as now on the Davis appeal).

251    The first and second respondents in the DCM20 proceedings were the Secretary of the Department and the Assistant Director, Ministerial Intervention, Department of Home Affairs. The Minister was not joined as a party. DCM20 sought a declaration to the effect that the decision of the Assistant Director not to refer her request to the Minister “was legally unreasonable and not made according to law”. In addition, she sought an order quashing the decision, a writ of mandamus directing the Assistant Director “to consider and deal with” the request in accordance with the law and an injunction requiring the Secretary, the Minister or their agents from giving effect to the Assistant Director’s decision.

252    The remedies may be fairly understood as directed to the enforcement of (at least) an asserted right to have the intervention requests assessed in accordance with the Guidelines which obligation is said to include a requirement to act within the bounds of legal reasonableness. Implicit in the claims for relief is an acceptance that the Guidelines (if complied with) provide a source of authority in a Departmental officer to not bring an intervention request to the Minister’s attention. That acceptance accords with the conclusions I draw below.

253    The respondents submitted that the assessments against the Guidelines were “non-statutory” and so could not be the source of any right in the appellants to have their requests brought to the Minister’s attention. They submitted that the non-referral left the legal position of each appellant unchanged. The expression “non-statutory” in its attachment to the Guidelines may be accepted, if what is meant by that phrase is that they are neither a statute, nor a binding direction made pursuant to a statute (such as may be issued under s 499 of the Act). But ascribing the label “non-statutory” to the Guidelines does not provide a complete answer to the question of whether the appellants have a right that is enforceable by the remedies they seek.

254    In Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528, Sheppard J discussed the danger of looking at policies or guidelines as a source of rights (at 540 – 541). In that case, it had been argued that policy guidelines concerning sponsorship approval for a business related visa had been misconstrued or misapplied. The primary judge had accepted that submission and made an order under s 16 of the ADJR Act mandating the approval of the sponsorship. On appeal, Sheppard J (with whom Beaumont and Burchett JJ agreed) said (at 541):

… there is no ground for elevating the guidelines here to the status of law. That is why I think that his Honour fell into error in making a declaration that the application for sponsorship was within the policy guidelines issued by the respondent for the grant of temporary entry permits. Wide though the provisions of s 16 of the Act are, they do not in my opinion authorise the making of a declaration unless what is being declared is a right in the true sense of the word. The guidelines themselves conferred no rights. They operated only to indicate to those administering the Act and to those who might be concerned to apply for the temporary entry of entertainers the manner in which the application for a temporary entry permit would usually be dealt with.

See also Broadbridge v Stammers (1987) 16 FCR 296.

255    In Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510, Lindgren J (at [64]) held that an administrative determination in accordance with a guideline issued by the Minister was not a determination provided for under the Act, did not of itself affect legal rights and was not amenable to judicial review.

256    What emerges from the cases is not a universal rule, but a requirement to characterise the policy or guidelines in light of the statutory scheme in the particular case.

257    In Bedlington v Chong (1998) 87 FCR 75, Black CJ, Kiefel and Emmett JJ said that the Minister was competent to issue the guidelines there under consideration in connection with the intervention power conferred under s 48B of the Act. Their Honours said (at 80 – 81):

So long as the Secretary was acting in accordance with the guidelines, she had no duty to refer Ms Chong’s application to the Minister. In reaching that conclusion, of course, we should not be understood as saying that, if the Secretary was not acting in accordance with the guidelines, Ms Chong was entitled to any relief. That is not a matter before us. However, insofar as Ms Chong’s application for relief is based solely on the Secretary’s failure to bring Ms Chong’s application to the attention of the Minister or on any failure on the part of the Minister at this stage to consider her application, it should be dismissed.

(emphasis added)

258    The question illuminated by that passage is whether there exists a duty in a Departmental officer to bring an intervention request to the Minister’s attention in the absence of any lawful instruction from the Minister authorising the officer not to do so. The role of the Guidelines may be illustrated by examining that question:  that is, by identifying the legal position of a person who has made a request for intervention in circumstances where no Guidelines have issued at all. The respondents submit the person making the request has no legal right to have the request considered by the Minister. So much must be accepted.

259    However, it does not follow that a Departmental officer has no duty to bring the existence of a request addressed personally to the Minister to the Minister’s attention. To my mind, the interception of an intervention request (without lawful authorisation) would amount to a purported exercise of a discretion not to consider the request, that being a discretion that can only be exercised by the Minister personally.

260    The legislature could not have contemplated that a request directed to the personal attention of the Minister could be intercepted by an officer within the Department and its existence not brought to his attention, at least in the absence of a lawful instruction from the Minister for that to occur. The conferral of the procedural discretion upon the Minister necessarily contemplates that the Minister is to be made aware that an occasion for exercising the procedural power has arisen.

261    It is the personal and discretionary nature of the procedural power that gives rise to a duty in the Departmental officer to bring the request to the Minister’s attention, in the absence of lawful authority not to do so. The imposition of that duty on the Departmental officer is not inconsistent with the non-compellable nature of the Minister’s procedural or substantive power.

262    In the absence of the Guidelines I consider the duty just identified to be one that may be enforceable by a writ of mandamus. To the extent that it is necessary to express the legal position in the language of a “right”, the right is one to have it made known to the Minister that there is subject matter in respect of which the Minister may exercise his procedural power, should he wish to do so.

263    The legal effect of the Guidelines must be considered against that pre-existing landscape.

264    It is of course competent for the Minister to issue mandatory instructions to the Department to not bring requests falling within a particular class to his attention. The Guidelines presently under consideration are plainly intended to do just that. They establish criteria for classifying requests and they contain instructions about what to do with the request, according to its classification. Only two outcomes are possible:  the bringing of the request to the Minister’s attention, or the finalisation of the request without bringing it to the Minister’s attention. As the Full Court said in Bedlington, so long as the Departmental officer acts in accordance with the Guidelines, there is no duty to bring the request to the Minister’s attention.

265    Contrary to Mr Davis’s new argument, the classification of a request as one that should be brought to the Minister’s attention does not give rise to a right to have the request considered by the Minister, nor do the Guidelines evidence an advance decision by the Minister to that effect. That conclusion arises from the words of the Guidelines themselves, particularly the emphasised portions at [213] – [220] above. They expressly state that qualifying requests are to be brought to the Minister’s attention for possible consideration. They contain express statements confirming that the Minister has no duty to consider any referred request at all. The mere bringing of the existence of an intervention request to the Minister’s attention does not engage the Minister’s statutory power, whether in relation to a procedural decision to consider the request or in relation to a substantive decision under s 351. Even in cases where a request is brought to the Minister’s attention, no statutory process has been embarked upon.

266    When a request is classified as one that should be referred to the Minister, there nonetheless remains a potential for the Minister to exercise his non-compellable discretion as to whether or not to consider it. That is a potential that would exist in every case if the Guidelines had not been issued. It is a potential that arises by virtue of the Act and the fact of the request. It is not created by the Guidelines.

267    When a request is classified as one that should not be brought to the Minister’s attention, that potential is lost. The legal position of the person making the request changes because their request for intervention is thereafter dealt with on the basis that the Minister does not wish to have it brought to his attention. It is only in “screened out” cases that the Departmental officer may be understood as implementing a decision made in advance. That is apparent from the word “confirm” in clause 1 (see [214] above). That particular statement of purpose is missing from the Previous Guidelines, as are like statements evidencing a prior decision not to consider certain requests.

268    It is the Guidelines that confer the necessary authority to not refer the request. As discussed below, the same Guidelines define the scope of that authority.

269    The decisions in Conyngham, Broadbridge and Raikua were all considered by Robertson J in Jabbour. His Honour distinguished those cases by reference to the character and practical operation of the particular guidelines on the particular rights of the applicants before him. His Honour said (at [91]):

…  Relevantly, the nature of that administrative action is informed by the guidelines. Although those guidelines take the form of instructions to officers of the Minister’s Department, that is not their only character. The instructions are promulgated and, amongst other things, set out how to make a request and how requests for Ministerial intervention will be progressed. The interests and potential rights of the applicants were affected by the administrative action. The guidelines provided a purpose and set out criteria or considerations.

270    I respectfully agree with that characterisation. If the Guidelines are to be understood as an exception to the statutory requirement that the existence of a request be brought to the Minister’s attention (as I consider they should be), then prima facie, a writ of mandamus may issue to compel compliance with their outer limits.

271    It remains necessary to consider whether anything said in the preceding paragraphs is precluded by anything said by the High Court in SZSSJ or Plaintiff S10/2011.

272    In SZSSJ, Departmental officers conducted International Treaties Obligations Assessments (ITOA) for the purposes of assessing whether Australia’s non-refoulement obligations were engaged in respect of visa applicants whose confidential details had been wrongly released by the Department. The assessments were undertaken pursuant to an instruction relating to the Minister’s personal non-compellable powers under s 195A and s 417 (to grant a visa) and s 48B (to lift a statutory bar on the making of a visa application). An instruction contained in a policy manual required that no person subject to the assessment should be removed from Australia.

273    The appellants in SZSSJ each sought injunctive relief against the Minister and the officer who had conducted the ITOA on the grounds that the assessments were procedurally unfair. The applications were dismissed, including on the basis that they were (in one case) premature and (in the other) beyond the jurisdiction of the FCC. The Full Court determined that the matters were not beyond the jurisdiction of the FCC, allowed the appeals and set aside the orders. The Full Court substituted declarations that the ITOA process was procedurally unfair. In one of the proceedings, the Full Court granted an injunction restraining the Secretary from removing the affected person from Australia until the ITOA process was complete.

274    There were three issues before the High Court:  whether the FCC had jurisdiction, whether the rules of procedural fairness applied in the ITOA process and (if so) whether procedural fairness was afforded (at [39]). To resolve the first two questions it was necessary to “characterise the ITOA process in terms of the Act” (at [40] and [57]). The principles to be applied were those drawn from Plaintiff M61/2010E and Plaintiff S10/2011, namely:

53    First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions:  a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.

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

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

275    As to the facts, the High Court observed (at [33]):

As a step in reasoning to the conclusion that the ITOA process was a statutory process in which procedural fairness was required, the Full Court made an important factual finding which is not challenged in this Court. That finding was to the effect that the inference to be drawn from the totality of the evidence before it was that the Minister had personally decided to consider whether to exercise the powers conferred by ss 48B, 195A and 417 of the Act in respect of applicants for visas affected by the Data Breach.

276    That unchallenged finding informed everything that followed. Its immediate consequence was that the ITOA process was to be understood as one by which the Department assisted the Minister in his actual consideration as to whether to exercise the substantive power (at [56]). It was a process “undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417 of the Act” on the premise that there had in fact been a procedural decision to consider the request. Two further consequences followed.

277    First, it was concluded that the FCC had jurisdiction to review the ITOA assessments, because the assessments fell within the extended definition of the word “decision” in s 474(3)(h): it was conduct preparatory to the making of a substantive decision under the Act by the Minster. On the proper construction of s 474 as a whole, that jurisdiction was not excluded by s 474(2)(h) (at [69] – [71]).

278    Second, the factual characterisation of the process gave rise to a displaceable presumption that the rules of procedural fairness applied, by the application of a well-established common law principle of statutory construction (at [74] – [75]):  see Kioa v West (1985) 159 CLR 550, Brennan J (at 619). In cases where the Minister had made the anterior procedural decision to consider the exercise of the substantive power, the presumption was attracted because the exercise of the power was “apt to affect the interest of an applicant in the actual or potential relaxation of a legal prohibition on his or her continued presence in Australia” (at [76], citing Plaintiff S10/2011 at [69]). In cases where a process of assessment occurs after the Minister has made the procedural decision, the exercise of the power was also “apt to affect the interest in liberty of an applicant whose immigration detention is prolonged by that process (at [76], citing Plaintiff M61/2010E at [76] – [77]). The presumption was not displaced by the statutory scheme, such that procedural fairness was required in the ongoing process of the assessment (at [79]). Given the unchallenged factual premise on which argument proceeded, the ratio of the judgment affects neither the reasoning nor the conclusion of Robertson J in Jabbour.

279    The earlier judgments in Plaintiff S10/2011 approached the characterisation of the assessment process differently. Heydon J did not consider it necessary to characterise the process at all, his Honour being of the view that howsoever the process was characterised, the rules of procedural fairness could not apply, by virtue of the nature of the Minister’s powers to which the Previous Guidelines related. French CJ and Kiefel J proceeded from a different characterisation of the Previous Guidelines than that of the plurality (Gummow, Hayne, Crennan and Bell JJ). The plurality judgment may well be considered to be a majority judgment, at least on the factual question of whether the Minister had made a decision to consider the requests in issue in that case. That question fell to be determined by reference to the Previous Guidelines.

280    French CJ and Kiefel J accepted the Minister’s submission that the Minister’s act in issuing the Previous Guidelines “did not involve a decision on the part of the Minister, acting under the relevant section, to consider the exercise of the power conferred by it” (at [46], and see [52]). That is the same conclusion I have drawn in relation to the Guidelines presently in issue in respect of “screened in” cases. Their Honours went on to reject the proposition that the processes followed under the Previous Guidelines were “steps towards the exercise of the ministerial powers” (at [52]). Accordingly, the rules of procedural fairness were not attracted even at a prima facie level.

281    In contrast the plurality said (at [91]):

The terms of the guidelines provide criteria to distinguish between requests which will not be referred to the Minister and those which may be referred to the Minister for consideration whether to exercise the relevant power. By these directions the Minister has determined in advance the circumstances in which he or she wishes to be put in a position to consider exercise of the discretionary powers by the advice of department officers. It was within the competence of the Minister to do so. The effect, as the Commonwealth Solicitor-General put it in oral argument, is that the adoption of the guidelines by the Minister represents decisions by the Minister that if a case is assessed as not meeting the guidelines, the Minister does not wish to consider the exercise of the dispensing power, and if a case is assessed favourably then the Minister does wish to consider that exercise.

(citation omitted, emphasis added)

282    Accordingly, there existed a statutory context in which the principles of construction concerning the rules of procedural fairness could directly apply. The consequence of the finding was that it was unnecessary to consider the plaintiffs’ submission that the source of the assessment power was that identified in s 61 of the Constitution, nor was it necessary to consider whether an obligation to afford procedural fairness attended the exercise of such powers (at [92]).

283    The respondents submit on these appeals that the Court is bound to apply the ratio of the judgment in Plaintiff S10/2011. The ratio is that where the particular guidelines under consideration constitute or evidence an advance decision by the Minister to consider requests that are referred to him, the assessment process is to be understood as undertaken within a statutory process. Where, on the facts, there is no advance decision to consider a referred request, no statutory process is engaged. That is consistent with the High Court’s judgment in SZSSJ, the unchallenged fact in that case bringing the case within the first category. It is also consistent with the earlier judgment in Plaintiff M61/2010E, the procedural decision to consider requests there being evidenced by a prior announcement by the Minister (at [70]).

284    In the present cases, the facts are such that the Minister has not made any advance procedural decision to consider requests referred to him under the Guidelines. Hence, the assessment process is not to be regarded as having been undertaken in circumstances where a statutory process of consideration had begun. It was not put by any party on these appeals that, in the absence of a prior decision to consider, the assessment could be regarded as statutory in nature, nor that the assessments ought to be regarded as preparatory to any “decision”. The most that could be said is that in the case of a properly “screened out” request, the role of the Departmental officer was to implement a prior decision of the Minister not to have the request brought to his attention.

The right to claim relief under s 75(v)

285    The notices of contention each challenge the claim for relief in similar terms. By reference to the notice filed in the Davis appeal, the contentions and their answers are as follows.

286    The principal contention concerning relief is that the Court “could not lawfully or alternatively should not” issue a writ of mandamus to require an officer to “consider and determine Mr Davis’s request”. That contention may be accepted to the extent that the relief is intended to compel the Departmental officer to do anything other than apply the Guidelines within the bounds of legal reasonableness. It is otherwise rejected. Mandamus may lie to compel compliance with discernible and inviolable restraints on the power as defined below.

287    The contention that certiorari cannot issue to quash the “so-called decision” must also be rejected. The writ may issue to quash an assessment that is affected by legal unreasonableness if that ground be available and made out. Certiorari would have utility in ensuring that the writ of mandamus operates on the request subject to the impugned assessment, and so prevents that request from being categorised as a new request under the Guidelines.

288    The contention that a writ of prohibition or an injunction cannot be directed toward the Departmental officers must also be rejected. The writ would have utility in ensuring that the appellants are not to be wrongly regarded as persons in respect of whom the Minister made a personal procedural decision not to consider their requests, such that they would no longer qualify for a bridging visa under the Regulations. It is consistent with the possibility that the requests may ultimately be considered favorably by the Minister. Whether these remedies may be directed to the Minister is a different question that, in the outcome, is unnecessary to decide.

289    A declaration may be made, provided that it is declaratory of the particular rights or duties identified in these reasons, and provided that it can be shown to have additional utility to that achieved by the other remedies.

Competency

290    At this juncture it is necessary to reflect on whether the acceptance or rejection of arguments concerning the characterisation of the process affects this Court’s jurisdiction to grant any relief to which the appellants may be entitled.

291    The question of this Court’s jurisdiction to grant the claimed relief is not without its conceptual difficulties. I am nonetheless satisfied that the assessments in the present cases did not, of themselves, constitute a decision “under the Act”, including by reference to the expanded definition of a “decision”. In particular, I do not consider the assessments to have been preparatory or otherwise advisory to a substantive decision under s 351 of the Act. Nor do I consider the assessments to have been preparatory to the exercise of any personal procedural power to decide whether or not to consider the requests. That is because of the distinction to be drawn between the role of the Department in bringing the existence of requests to the Minister’s attention, and the Minister’s discretion to give the content of the request no consideration at all.

Defining the limits of non-statutory power

292    As an implied condition on the exercise of a statutory power, the requirement of legal reasonableness arises by a common law principle of statutory construction. As Gaudron J said in Abebe v Commonwealth (1999) 197 CLR 510 (at [116]):

As with the rules of procedural fairness, it is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.  …

293    The unsurprising proposition that Parliament is taken to have intended that a statutory power be exercised reasonably was confirmed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at [123]) and in each of the three judgments of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, French CJ (at [26] and [29]), Hayne, Kiefel and Bell JJ (at [63]), Gageler J (at [88] – [91]); see also Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 (at [15]) and Kruger v The Commonwealth (1997) 190 CLR 1, Brennan CJ (at 36). As Gageler J said in Li (at [92]), the obligation is not to be implied as a condition of validity if its implication is inconsistent with the statutory text or with the nature or context of the statutory power or duty. His Honour continued:

…  The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or of the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed.

See also Minister for Home Affairs v DUA16 [2020] HCA 46, 385 ALR 212, Kiefel CJ, Bell, Keane, Gordon and Edelman JJ (at [26]).

294    The statute supplies not only the implication of the obligation, but its practical content in the particular case. Discerning the content is important, as the limits of statutory power and the limits of the Court’s supervisory jurisdiction are inextricably linked. As Allsop CJ said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1:

7    …  There is ‘an area of decisional freedom’ of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness.  …

8    The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality:  Li at [30], [66] and [105].

295    As can be seen, the body of principle concerning “legal unreasonableness” has developed as a judicial response to statutory problems. It is a body of judge-made law concerned with the interpretation of statutes. However, as Allsop CJ explained, as a limitation on power, legal unreasonableness has its foundations in the principles and values of the common law, including the value of reasonableness and, I would add, rationality. Robertson J plainly had the same values in mind when he said in Jabbour (at [101]):

If it be necessary to find a conceptual underpinning for the role of this Court in judicial review of governmental action under non-statutory powers, the Court having jurisdiction under s 39B of the Judiciary Act, reflecting relevantly the jurisdiction of the High Court under s 75(v) of the Constitution, I would find it in the common law. The matter is discussed by Professor Fiona Wheeler in ‘Judicial Review of Prerogative Power in Australia:  Issues and Prospects’ (1992) 14 Sydney Law Review 432 at 461ff and by Ms Amanda Sapienza in ‘Judicial Review of Non-Statutory Executive Action:  Australia and the United Kingdom’ (2018) 43 University of Western Australia Law Review 67. It would seem to me to be incongruous to have in the common law a principle of statutory interpretation implying reasonableness as a condition of the exercise of a discretionary power conferred by statute, but not to have in the common law any such principle existing outside statutory interpretation. The creation of ‘islands of power immune from supervision and restraint’ or ‘distorted positions’, referred to in Kirk by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [99], would thereby be avoided. The second respondent is of course an officer of the Commonwealth within s 75(v) and s 39B.

296    The respondents argue that Robertson J’s analysis is erroneous. They submit that the rule of statutory construction that supplies the implied obligation of legal reasonableness is not a free-standing rule, but rather is limited to discerning the intention of Parliament. In respect of non-statutory executive power, the respondents submit, the statutory foothold for the application of the principles discussed and applied in cases such as Li and SZMDS is missing.

297    These submissions tend to misapprehend the reasoning in Jabbour. Robertson J did not purport to directly apply a common law rule of statutory interpretation in a non-statutory context. Rather, his Honour said that the body of law that supplied the rule of statutory construction (the common law) also supplied a principled answer to the question before him.

298    Robertson J identified a principle “existing outside statutory interpretation” from which a restraint on the exercise of non-statutory powers may be identified and its contours defined. His Honour went on (at [102]) to describe the content of the condition as at least equivalent to that discussed in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (at [47]), “that is, reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the administrative action”. His Honour said that legal unreasonableness may also be established by reference to the result, that is, by demonstrating that no reasonable decision-maker would have refused to refer the intervention request to the Minister, thus adopting the test referred to in Abebe extracted at [292] above. Neither approach required the limits of the power to be discerned by direct reference to the scope or purpose of a statute. His Honour said that “the guidelines and characteristics of the power” in the Ministerial intervention cases nonetheless performed a function comparable to the scope and purpose of a statutory power. To the extent that the respondents submitted that Robertson J erroneously applied a body of law solely concerned with statutory interpretation to a non-statutory context, that submission must be rejected. The reasoning in Jabbour is more nuanced than that.

299    For my part, I consider it unhelpful to examine the executive power exercised in the present cases in a way that assumes a strict “statutory” or “non-statutory” dichotomy. All powers exercised by officers of the Commonwealth have the Constitution (itself a statute) as their ultimate source. The respondents have not suggested that statutory powers have outer limits, but non-statutory powers do not.

300    The High Court’s jurisdiction under s 75(v) of the Constitution is not, in terms, limited to the supervision of power conferred by statute. In discerning the outer limits of the power in issue in a particular case (and likewise the limits of the Court’s supervisory jurisdiction) it is of course necessary to have regard to the nature of the power, the legal context in which it is exercised and the factual subject matter upon which it operates. The factual subject matter in the present cases is plainly justiciable. There is no risk that the issue of the Constitutional writs would impermissibly interfere with a purely political field of activity.

301    When proper consideration is given to the legal framework in which the Guidelines exist, two layers of “statute” may be seen, depending on the lens used. Their identification results in the implication of an obligation of legal reasonableness notwithstanding that the non-referral decisions were not made “under” the Act in the direct sense.

302    Viewed narrowly, the legal framework is one in which the Act forms an integral part. As explained earlier, the Guidelines furnished the Departmental officers with the authority to do what otherwise could not lawfully be done. The circumstance that decisions made by reference to the Guidelines are not made “under” the Act for the purposes of the statutory “migration decision” definition should not obscure the obvious statutory framework in which the Guidelines were issued and their terms implemented. In the legal context, a condition of legal reasonableness attending the implementation of the Guidelines may be seen as a means of supervising the limits of the statutory duty that otherwise arises by reference to the Act:  the obligation to make the Minister aware of the fact the request had been made (see [261] and [270] above) that would otherwise exist had the Guidelines not been issued. An excess of authority in implementing the Guidelines has the legal consequence that the non-referral “decision” lacks any form of lawful authority at all.

303    Adopting a wider view, the Departmental officers are seen as members of the Commonwealth executive, a branch of government having powers conferred by and described by (at least) s 61 and s 64 of the Constitution. There is no reason to suppose that the principles of the common law that have developed in response to problems concerning the limits of powers directly conferred by laws of the Commonwealth cannot also inform the limits of other powers having their source more directly in the Constitution. The limits on such powers are to be discerned from the structure and text of the Constitution itself, the common law suppling a body of principles against which the Constitution may be interpreted:  Plaintiff M68/2015, Gageler J (at [138]).

304    As Gaudron J said in Abebe (at 116) (in a statutory context), if the statute conferring a decision-making power is silent on the question, “it is difficult to see why” the statute should not be construed as imposing a condition of reasonableness as a default position. Given the arguments now raised by the respondents, it is necessary to ask why that implication should arise so readily. The answer is that to act irrationally, arbitrarily or capriciously in the exercise of a statutory power will be to act contrary to the purpose for which the power is conferred, that is, to act in a way removed from any objective the legislature might conceivably have had in mind when conferring it.

305    In Jabbour, Robertson J said that it would be incongruous to have in the common law a principle of statutory interpretation implying reasonableness as a condition of the exercise of a discretionary power conferred by statute, but not to have in the common law any such principle existing outside the realm of statutory interpretation. I respectfully agree.

306    The respondents’ submission that it is impossible to define the outer limits of the power in question absent a statute must also be rejected. In the legal context discussed above, the practical application of the principle of legal unreasonableness is as follows. The power exercised by the Departmental officers is derived from s 61 and s 64 of the Constitution. The Minister’s administrative power to make the Guidelines is that vested in him by the Governor-General under s 61. The Department is established by the Governor-General under s 64. The Minister is appointed to administer the Department under s 64. The purpose of those devolutions of executive power is plain from the Constitutional text: the execution and maintenance of a law of the Commonwealth, namely s 351 of the Act. As identified earlier in these reasons, the power in s 61 of the Constitution (as devolved upon the Minister under s 64) extends to the administration of the whole of government. It could hardly be supposed that officers of a Department administered by the Minister (having responsibility for the execution of an Act within the bounds of legal reasonableness), should be held to a lower standard in the performance of their non-statutory powers or the discharge of their duties than that which applies to the Minister himself. As is the case with powers directly conferred by statute, the exercise of non-statutory powers in that way is apt to undermine the purpose for which the powers are conferred by (or via) the Constitution, and the role of those powers in the Constitutional framework.

307    In my view, Robertson J was correct to say that the guidelines there under consideration served a comparable function to a statute when discerning both the availability of the unreasonableness ground for judicial review and its practical content. That was the approach adopted by the primary judge in each of the present cases by reference to the Guidelines now in force. There was no appealable error in adopting that approach.

308    It remains to determine the grounds of each appeal on their merits.

THE DAVIS APPEAL

309    Mr Davis is a citizen of the United Kingdom. He arrived in Australia in 1997 on a working holiday visa. After that visa expired, Mr Davis remained here as the holder of an Electronic Travel Authority (subclass 976) visa. When that visa expired in November 1998, he remained in Australia without holding a visa. For about 16 years Mr Davis had a mistaken belief that he had been granted permanent residency as a result of having lodged a partner visa application.

310    In November 2014 Mr Davis encountered difficulties with immigration officials at an airport upon returning from a visit to the United Kingdom. He was granted a tourist visa to re-enter Australia so that he could resolve his immigration status, and was later granted a Temporary Work (subclass 457 visa). Whilst on that visa, he made an application for a partner visa. In May 2017, the subclass 457 visa was cancelled under s 116 of the Act. In June 2018, the partner visa application was refused by a delegate of the Minister on the basis that the necessary sponsorship for that visa had been withdrawn. The AAT affirmed the delegate’s decision to refuse to grant the partner visa.

311    Mr Davis made a request for intervention on 11 February 2019. His request stated that the circumstances of his case were unique and exceptional because, as summarised by the primary judge (at [21]):

(1)    He has been living and working in Australia for twenty years. He has built a life in Australia, is integrated into the Australian community, and has added net economic growth to the Australian economy through the purchase of multiple properties and materials and payment of taxes.

(2)    He has a successful small business, which contributes net economic growth to the Australian economy, including in regional Victoria. He has employed many Australians as tradespeople and subcontractors on his projects, and his departure will cause hardship to Australian subcontractors.

(3)    He is an accomplished and experienced tradesman, with extensive skills, knowledge and commitment to the building industry. The quality and superiority of his work was supported by statutory declarations. The building industry and the community would be worse off should he be required to depart Australia.

(4)    His departure from Australia would have a severe emotional effect on many Australian citizens he has formed close relationships with, in particular, one Lynette Giddins, a 73-year-old Australian citizen who has almost total reliance on him for physical and emotional support.

312    On 8 May 2019 the Assistant Director concluded that the request did not meet the Guidelines for referral. That outcome was communicated to Mr Davis by email on 10 May 2019, advising that the Department had “finalised this request without referral”. The reasons for that outcome, extracted from the reasons of the primary judge, were as follows:

(1)    The applicant is one of several trustees of the Davis Family Trust and there is no information provided as to whether the other trustees have a family connection to him or not.

(2)    The applicant’s decision to purchase property in 2017/2018 was his own personal choice knowing he did not have an entitlement to remain in Australia permanently. He can either sell his properties or rent them out before departing Australia.

(3)    The applicant’s investment and business ties were obtained in full knowledge that he did not have the right to remain in Australia permanently. He can sell his business and use any proceeds to re-establish himself in his home country.

(4)    The applicant provides no evidence of support from the wider community or that any Australian citizen, permanent resident or Australian business will suffer hardship as a result of his departure, and his integration claims for the most part rely on his business ties.

(5)    Claims relating to length of time in Australia are not meritorious under the guidelines, particularly where a significant period of his time in Australia was spent as an unlawful non-citizen.

313    By his representative, Mr Davis wrote to the Department and the Assistant Director on 15 May 2019 complaining that various aspects of his submissions had not been considered and urging the Department to “thoroughly consider” the Guidelines. The Assistant Director treated that letter as a “repeat request” for the purposes of the Guidelines. In a letter to Mr Davis, the Assistant Director stated:

The Minister’s guidelines indicate that the Minister does not wish to consider repeat requests unless the Department is satisfied that there is a significant change in circumstances which were not provided before or considered in a previous request and which present unique or exceptional circumstances as described in the guidelines.

The Department has assessed that this request does not meet the guidelines for referral to the Minister.

314    The reasons for that assessment were set out in a minute dated 20 May 2019. It relevantly stated:

On 8 May 2019, Mr Davis’ first request under section 351 of the Act was finalised by the Department after it was assessed as not meeting the guidelines for referral. The Department considered claims related to his immigration history and significant length of time in Australia, his business ties to Australia, media interest in his circumstances most notably by ‘The Project’ (Channel 10 news and current affairs program), and that he had integrated into the Australian community.

The Department noted that other than support letters from his friends, and his accountant in Australia, he provided no other evidence of support from the wider community, and his integration claims for the most part relied on his business ties, and the Department considered that claims relating to length of time are not in themselves meritorious under the guidelines, particularly where a significant period of almost 16 years of his total time in Australia was spent as an unlawful non-citizen.

The Department also considered that his investment and business ties to Australia, were obtained in the full knowledge that he did not have the right to remain in Australia permanently, that they are the ordinary result of his latter periods spent in Australia on temporary work and bridging visas, and they do not present as unique or exceptional meriting referral to the Minister under the guidelines. There was also no evidence that any Australian citizen, permanent resident, or Australian business, would suffer hardship as a result of his departure.

In this current repeat request, he reiterates previously considered claims relating to longevity in Australia, his business in Australia, that he would have difficulty establishing himself in the UK, and that he has formed close relationships with a range of people. While he claims to remain in contact and have formed a bond with a 73 year old Australian citizen who although he does not live near anymore, he accompanies her to medical appointments, there is no evidence that no other person in the community such as relatives, friends, or community support services, are unable to provide any support to this elderly Australian citizen which it is claimed she receives from Mr Davis.

In relation to his business in Australia, the Department notes that it is registered under a family trust which has several trustees, and there is no evidence that the other trustees cannot run the business on his return to the UK. There is also no evidence that any funds generated by the Trust cannot be remitted to him in the UK.

This repeat request will not be referred to the Minister because the department is satisfied there has not been a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request and which would now present unique or exceptional circumstances.

How this request will be finalised

The Minister’s guidelines provide that the department should reply to the person or their authorised representative that the repeat request has not been referred and that the case is finalised.

Reasons of the primary judge

315    At first instance, the third ground for judicial review alleged that the decision not to refer the intervention request to the Minister was made “unlawfully due to a misconstruction of the Guidelines”. The particulars of that ground were as follows:

a.    It is to be inferred that the [Secretary, Department of Home Affairs] considered that the case did not have unique or exceptional circumstances such those described in clause 4 of the Guidelines when in fact the case did have unique or exceptional circumstances that were the same as or similar to those described in clause 4 of the Guidelines. In the premises, the [Secretary, Department of Home Affairs] misconstrued the Guidelines. Furthermore, it was legally unreasonable for the [Secretary, Department of Home Affairs] to conclude, as a matter of evaluation or judgment, that the Applicant's case did not present unique or exceptional circumstances and did not meet the Guidelines.

b.    Clause 12 of the Guidelines directed consideration by the [Minister] and [Secretary, Department of Home Affairs] of whether it was in the public interest for the Minister to consider intervening in a case, even if the circumstances did not fall within the unique or exceptional circumstances described in clause 4 of the Guidelines. It is to be inferred that even if the [Secretary, Department of Home Affairs] erroneously considered whether the case was like those described in clause 4, the [Secretary, Department of Home Affairs] did not go on to consider whether it was in the public interest for the [Minister] to intervene in the case even if it fell outside the examples in clause 4 and should be considered anyway, under clause 12. In the premises, the [Secretary, Department of Home Affairs] misconstrued the Guidelines and the [Minister] has not yet considered whether it is in the public interest for the [Minister] to intervene in the case.

c.    Whether or not the case is brought to the [Minister’s] consideration in accordance with clauses 1 to 11 of the Guidelines, the [Minister] may consider intervening in cases where circumstances do not fall within the unique or exceptional circumstances in clause 4 of the Guidelines but the [Minister] considers it to be in the public interest.

316    The primary judge emphasised that it formed no part of the Court’s role to express its own view about whether Mr Davis had or had not demonstrated unique or exceptional circumstances (at [39]). His Honour said that it was necessary for Mr Davis to demonstrate some true irrationality in the Assistant Director’s process of reasoning (at [40]) in order for his application to succeed. The correct question was whether a decision-maker could reasonably come to the relevant conclusion (at [41]). The primary judge said that there was nothing unreasonable in the Assistant Director’s evaluation that Mr Davis’s case did not meet the Guidelines, nor did the reasoning disclose any apparent misapprehension of the meaning of the Guidelines (at [43]). The primary judge said it was open to the Assistant Director to treat the letter of 15 May 2019 as a “repeat request” and, in any event, Mr Davis’s reference to that request could not assist him because in that request he had made the same submissions as to why his case was “unique and exceptional” (at [46]). It was readily apparent, the primary judge said, that the Assistant Director had considered those circumstances and was not satisfied that they presented unique and exceptional circumstances (at [46]). It is implicit in his Honour’s reasoning that it could make no difference whether the circumstances were considered in a first request or a repeated request, as the substantive outcome in either case would be the same.

The first ground of appeal

317    The first ground of appeal is to the effect that the primary judge erred in failing to find that the Assistant Director’s determination that the request for intervention did not meet the criteria for referral in the Guidelines was “a decision that no reasonable decision-maker could have made”. The particulars to this ground raises three issues.

318    The first relates to whether the request “did present unique or exceptional circumstances that were the same as or similar to those described in clause 4 of the Guidelines” such that the decision not to refer the request was made “for reasons that lacked an evident justification”.

319    The issue raised in the second particular is whether the Assistant Director failed to consider whether the request should be referred to the Minister under clause 12 of the Guidelines, which directed consideration of the question of whether it was in the public interest for the Minister to consider intervening in the case, even if the circumstances did not meet the criterion in clause 4.

320    The issue raised in the third particular is whether the Assistant Director’s characterisation of the letter of 15 May 2019 as “a repeat request”, was lacking in an evident justification. That may be referred to as the repeat request issue.

321    The three particulars in combination are said to support a conclusion that the Assistant Director “unreasonably misconstrued or applied the Guidelines” with the result that the request had not been referred to the Minister “for him to have the opportunity to consider whether to exercise his power” under s 351 of the Act.

Submissions

322    Counsel for Mr Davis submitted that the reasons for the initial refusal to refer the intervention request evidenced that the decision-maker had completely overlooked the supporting letter of Ms Giddins in which she expressed that the deportation of Mr Davis would have a serious impact on her life and that “it would be like losing a son”. Counsel referred to the absence of any consideration at all to the impact on Ms Giddins in the reasons provided and, in particular, the absence of any explanation for the conclusion that Mr Davis’s claims concerning her did not amount to a strong compassionate circumstance that, if not recognised, would result in serious ongoing and irreversible harm to an Australian citizen. Counsel also pointed to the reasons later provided on the so-called “repeat request” which stated that on his first request for intervention there was “no evidence that any Australian citizen, permanent resident, or Australian business would suffer hardship as a result of his departure”.

323    Counsel submitted that the primary judge had erred in concluding that proof of any failure to consider the impact on Ms Giddins could not assist Mr Davis, because the reasons provided on the “repeat request” evidenced that the asserted impact on her had been assessed as not warranting referral.

Consideration

324    The submission that the Assistant Director did not have regard at all to the impact upon Ms Giddins when the request for intervention was first made should be accepted. The failure to consider that impact is made plain in the reasons given in response to the “repeat request”, which contained an unqualified statement that there was “no evidence that any Australian citizen, permanent resident, or Australian business, would suffer hardship” had previously been provided. Plainly, evidence of that kind had previously been provided. The Assistant Director was wrong to state otherwise.

325    Given the role of the Guidelines identified earlier in these reasons, Mr Davis was entitled to have his assertions concerning Ms Giddins assessed against their criteria on his initial request for intervention. When Mr Davis complained that the initial assessment was flawed because of that failure, his complaint ought not to have been characterised as a “repeat request”. It could not be so characterised because although the asserted impact on Ms Giddins had previously been raised, it had not previously been considered.

326    However, notwithstanding the erroneous characterisation of Mr Davis’s letter of 15 May 2019 as a “repeat request”, the Assistant Director in fact went on to substantially consider the asserted impact upon Ms Giddins by reference to the materials provided. The Assistant Director did not refuse to consider the issue on the basis that the information asserted in the complaint did not amount to a changed circumstance. Rather, the Assistant Director gave the issue active consideration under the Guidelines as though the issue had not previously been considered. The Assistant Director concluded that there was no evidence that there was no other person in the community able to provide support to Ms Giddins of the kind that she claimed to receive from Mr Davis. That substantive conclusion was open to the Assistant Director to make.

327    Whilst I am satisfied that it was disingenuous of the Assistant Director to treat the latter correspondence as a repeat request, it does not follow that the refusal to refer the request to the Minister was affected by legal unreasonableness. The central task of the Assistant Director was to assess the evidence in relation to Ms Giddins against the highly evaluative “compassionate circumstances” criteria. That task was ultimately performed as a matter of substance. The evaluation itself was not irrational, nor was it affected by legal unreasonableness in any other sense. The wrongful description of the 15 May 2019 letter as a “repeat request” did not make it so, and did not otherwise have a material effect on the outcome.

328    The primary judge was correct to conclude that the demonstration of error in treating that letter as a “repeat request” could not assist Mr Davis on the application for judicial review, for the reasons that his Honour gave.

329    It follows that the first ground of appeal is not established.

The proposed second ground of appeal

330    This proposed ground is to the effect that the Guidelines constitute an impermissible delegation by the Minister of his personal procedural power under s 351 of the Act, with the consequence that the Departmental officers could not make any lawful assessment of the request in accordance with the instructions contained in them. As explained earlier in these reasons, Mr Davis did not advance any such argument at first instance. He requires leave to raise the argument now.

331    The argument sought to be raised is not in accordance with authority. As Gummow, Hayne, Crennan and Bell JJ said in Plaintiff S10/2011 (at [91]), it was competent for the Minister to issue the Previous Guidelines. That same conclusion must apply to the Guidelines presently under consideration. The argument cannot be sustained in light of the text of the Guidelines extracted earlier in these reasons.

332    In addition, the argument appears to attribute to the Departmental officers a decision that would fall within the definition of a “purported migration decision” of a kind that only the High Court may review. It is unnecessary to express a concluded view on that jurisdictional question. Leave to introduce the argument for the first time on appeal should be refused on the basis that it has no merit.

333    It follows that this appeal must be dismissed.

THE DCM20 APPEAL

334    DCM20 is a citizen of Fiji of Indian ethnicity. She has resided in Australia continuously since arriving with her family in the early 1990’s. In 1997, the Refugee Review Tribunal affirmed a decision not to grant DCM20 a protection visa. DCM20 made a request for Ministerial intervention under s 417 of the Act. In June 1997, DCM20 was notified that the Minister had decided not to intervene.

335    On 27 August 2013 the MRT affirmed a decision of a delegate not to grant DCM20 a Resolution of Status (subclass 851) visa. DCM20 has made three unsuccessful requests for Ministerial intervention under s 351(1) of the Act with respect to that decision, the first by letter dated 29 August 2013, the second by letter dated 22 June 2016, and the third by letter dated 20 December 2019.

336    A Departmental submission in relation to the first request stated the following:

(a)    The Minister may wish to consider granting a Permanent – Former Resident (Subclass 151) visa and that a temporary visa option had not been offered as, on the available information, it was considered unlikely that Ms [DCM] would meet the requirements for the grant of a further visa onshore;

(b)    ‘[b]oth Mr and Ms [DCM] claim to provide essential care for their elderly and frail Australian citizen parents’, as well as providing assistance for their sister’s children whose father had passed away (I note that the reference here to Mr [DCM] is a reference to the applicant’s brother who was also making a request for Ministerial Intervention under s 351(1) at this time on the basis of similar claims));

(c)    Ms [DCM] ‘claims that she cares for her elderly and frail citizen parents … [who] are entirely dependent on her for all household chores and she frequently accompanies them to medical appointments. Ms [DCM] has advised that her mother has diabetes and walking difficulties (no evidence regarding her parents medical conditions or frailty has been provided)’; and

(d)    Ms [DCM] was working part-time at an aged care centre 34 hours per week, but had not indicated who cared for her family members when she was working.

(original emphasis)

337    The Minister declined to exercise the power under s 351(1) on 17 March 2016.

338    The content of the second request (made by letter dated 22 June 2016), is summarised by the primary judge as follows (at [8(3)]):

…  In the letter, the applicant stated, among other things, that ‘[a]s my parents are elderly aged 74 and 72 years, they can’t live without me and my brother who both have been asked to depart’, and her mother had medical problems, panic attacks and serious anxiety as a result of their impending departure. She also said that with her qualifications in aged and disability care, she had been providing her mother ‘all the medical support in terms of looking after her’ and that her ‘sick mother requires these support on an ongoing basis from me. My departure will create undue hardship to my sick mother’. She further submitted that her qualifications and facility in different language dialects placed her in a position to contribute to the community at large in the provision of aged care and disability services.

339    That request was not referred to the Minister following assessment under the Guidelines. It may be referred to as the 2016 request.

340    The third request for intervention was the subject of the proceedings before the primary judge. It will be referred to as the 2019 request.

341    By the 2019 request, DCM20 (by her migration agent) requested that the Minister exercise his power to substitute a more favourable decision so as to grant her a three month visitor visa that would enable her to then apply for a cares visa. The 2019 request was accompanied by statutory declarations from family members and medical documentation relating to DCM20’s parents.

342    Among other things the 2019 request stated that DCM20 was currently providing full-time care and support for her incapacitated mother, that her father was also of old age and suffering from a number of ailments and that DCM20 lived with her parents who depended upon her for their day to day care. The request asserted that there were unique and exceptional circumstances that did not exist at the time that the previous requests were made, namely:

… the Applicant’s personal characteristics which arise from her being a single female of Indian descent provides a sound basis for believing that there is a significant threat to her personal security, human rights and human dignity if she returns to Fiji. This is due to the high likelihood of sexual violation of single Indian females without male support in Fiji and the intense animosity towards the Indian minority from the native Fijian majority in the country.

The Applicant notes that when she was living in Fiji with her family prior to their arrival in Australia in 1993, her familial home was broken into by native Fijians who targeted them due to their Indian ethnicity. After breaking into their home, the group of native Fijians not only violently threatened her family to leave Fiji and return to their ancestral home India, but also threatened to take their money. After this incident, native Fijians have repeatedly attempted to sexually assault the Applicant in the past; while the Applicant’s family was around to protect her when they were still living in Fiji, they have since settled in Australian have become Australian citizens.  …

If the applicant [returns] to Fiji as a single woman of Indian descent with no family or friends, no place of residence and no employment, she is more vulnerable than ever before to violent abuse, including sexual assault.

343    It is not in issue that the 2019 request was a repeat request for the purposes of the Guidelines.

344    On 10 January 2020 the Assistant Director signed a minute titled “Assessment of repeat request for intervention in accordance with the Minister’s guidelines on ministerial powers (sections 351, 417, 501J)” (the Minute). The effect of the Minute was that the 2019 request would not be referred to the Minister because it did not fulfil the requirements in the Guidelines for referral of a repeat request. The reasons for that assessment were expressed as follows:

Current Ministerial intervention request

In this current third repeat request, Ms [DCM] reiterates claims which were previously considered, although she provides evidence of qualifications which were not provided previously. She now claims to care for her parents full time and is no longer working but provides medical documentation which does not indicate any significant deterioration in her parents’ health. There is … also no evidence of a significant change in the circumstances of her sister, niece and nephew who all reside together as a family unit. The previous assessment of Australia’s international obligations remains current despite the elapse of 3 years.

As Australian citizens, her parents, sister, brother, niece and nephew are entitled to services available to all Australian citizens. Her parents reside with her sister and children, and the children remain in the care of their mother. There is no evidence that Ms [DCM]’s return to Fiji would breach any international obligations.

…

While Ms [DCM] claims to fear harm on return to Fiji, these claims do not fall within the ambit of the section 351 or section 417 guidelines. She has had earlier protection claims finally determined and she was found to not be owed Australia’s protection obligations. It remains open to her to make a request under section 48B of the Act where any claims related to Australia’s non-refoulement obligations can be assessed.

…

This repeat request will not be referred to the Minister because the department is satisfied there has not been a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request and which would now present unique or exceptional circumstances.

345    As the primary judge noted, the reference in the reasons to s 417 of the Act was inapt, as no request for intervention under that section had been made.

Grounds for judicial review

346    At first instance, each of the two grounds for judicial review alleged that the decision not to refer the 2019 request to the Minister was legally unreasonable.

347    The primary judge summarised the principles to apply in respect of both grounds in orthodox terms. The primary judge continued (at [24]):

It follows from these principles that the fact that another decision-maker might disagree, even strongly, with the Assistant Director’s ‘decision’ is irrelevant to the question of whether it is legally unreasonable:  see above at [19]; see also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [74] (Griffiths J), [92] (Wigney J). Nor does the fact that Ms [DCM], her parents and her family will no doubt suffer hardship if she is required to return to Fiji provide a basis on which the Court may interfere. As Gageler J also cautioned in Minister of Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [52] while the test may be expressed in various ways, ‘[e]xpression of the standard of legal reasonableness in terms of the minimum to be expected of any ‘reasonable repository of the power’ in the circumstances of the impugned decision or action has the benefit of emphasising both the ‘extremely confined’ scope and context-specific operation of the limitation it imposes’ (emphasis added; citations omitted).

(original emphasis)

348    The primary judge identified (at [22] – [23]) that the decision-maker was under no obligation to provide a written statement of reasons setting out the findings on material facts and reasons for the decision:  Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Gleeson CJ (at [5]), Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554, the Court (at [50]). Her Honour said that the approach to reasons that are provided in the absence of an obligation to do so was that explained in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 (at [25]), namely:

It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, ‘jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power’; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate’s letter is ‘not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.

(citations omitted, original emphasis)

The first ground of review

349    The first ground concerned the decision-maker’s conclusion that the medical information DCM20 had provided did not indicate any significant deterioration in her parents’ health. It was submitted that the medical evidence provided in support of the repeat request clearly demonstrated a deterioration in the health of DCM20’s mother in the period following the 2016 request. It was submitted that letters from the mother’s general practitioner in 2016 and 2019 demonstrated that she suffered from significant medical conditions that were not present at the time that the 2016 request was made, including mobility restrictions requiring a higher level of care. It was submitted that the decision-maker was not medically qualified to form an opinion that there had not been significant deterioration in the mother’s health. It was submitted that the decision-maker fundamentally misunderstood that the nature of the health conditions constituted a significant change in circumstances, and so fundamentally misunderstood the request.

350    The primary judge identified that the focus of the challenge in the first ground of review was the decision-maker’s statement that the applicant “now claims to care for her parents full-time and is no longer working but provides medical documentation which does not indicate any significant deterioration in her parents’ health”. The primary judge concluded that the statement had not been shown to be illogical or irrational, because:

(1)    (at [40]) Whether there had been a significant deterioration in the mother’s health and/or a significant change in her circumstances was plainly a matter about which the decision-maker was required to be persuaded:  XA v Minister for Home Affairs (2019) 274 FCR 289, Thawley J (at [170]) (citing Plaintiff M64/2015, Gageler J (at [64]).

(2)    (at [41]) The submission that the decision-maker was not medically qualified to form an opinion as to whether there had been a significant deterioration in the mother’s health was untenable. Assessments of that kind were undertaken every day by administrative decision-makers on the basis of expert evidence before them. The Guidelines did not stipulate that any medical expertise was required to be possessed by the decision-maker before reliance could be placed on such material.

(3)    (at [42]) It was clear that the decision-maker understood that DCM20 “now” claimed to be her mother’s “full-time” carer and that the decision-maker understood that to be a change in DCM20’s circumstances. The decision-maker had referred to the circumstances advanced in the 2016 request to the effect that at that time she was employed in the aged care sector as well as providing “essential care” (with her brother) for her aged mother, and so may be taken to have understood that the care provided in 2016 was not full-time care.

(4)    (at [43]) Whether the need to provide the mother with full-time care amounted to a significant change of circumstances raising unique or exceptional circumstances was a matter for the evaluative judgment of the decision-maker. The broad and subjective nature of the function was a “virtually insuperable hurdle” in establishing that the decision lacked an evident and intelligible justification. That was especially so where there was no obligation on the decision-maker to provide a statement of reasons, such that the principles allowing for drawing of inferences where there is such an obligation do not apply.

(5)    (at [44] – [45]) Relatedly, the circumstance that the decision-maker had not elaborated upon her reasons for the view that there had been no significant deterioration in the mother’s health does not demonstrate irrationality, there being no obligation to provide reasons. It could not be inferred from the absence of an explanation of each step in the decision-maker’s reasoning process that there was no evident or intelligible foundation for the opinion.

(6)    (at 46]) It followed that DCM20 could only succeed if the decision-maker’s assessment was explicable only on the basis of some irrationality or misconception of the Guidelines. The evidence fell far short of establishing any such error.

(7)    (at [47] – [53]) It was plainly open to the decision-maker to conclude that the mother’s health had not significantly deteriorated by reference to the brevity and inconclusive nature of the report by the mother’s general practitioner provided in 2019, which the primary judge considered in some detail.

(8)    (at [54]) The exclusive focus on the decision-maker’s opinion about the medical report was itself misconceived. It was apparent that the decision-maker took into account other family circumstances including the care and support services available to the mother. It was apparent that the decision-maker not only formed the view that there had been no significant change in circumstances of the mother since the 2016 request, but was also not satisfied that new substantive issues had been raised which “would now present unique or exceptional circumstances”. Those aspects of the decision emphasised the broad evaluative judgment lying exclusively with the decision-maker, and had not been the subject of challenge.

The second ground of review

351    The second ground concerned the treatment of DCM20’s claims to fear harm as a single woman of Indian ethnicity should she be returned to Fiji.

352    The primary judge observed that clause 4 of the Guidelines provided that “unique and exceptional circumstances” may include a significant threat to personal security, human rights or human dignity arising by reason of a person’s particular circumstances or personal characteristics, but that was subject to a qualification that the mistreatment must not “meet the criteria for the grant of any type of protection visa”. Section 48B of the Act authorised the Minister to “lift the bar” in s 48A which would otherwise prohibit the making of a second protection visa application where a prior protection visa application had been refused. The primary judge observed that the Minister had issued guidelines about the referral of matters to him for possible consideration of the exercise of the s 48B power.

353    It was submitted that the decision-maker’s finding that it remained open to make a request under s 48B was legally unreasonable because the decision-maker had mischaracterised the claims and failed to consider the claimed threat of harm as being a relevant consideration under clause 4 of the Guidelines, and because there was no intelligible justification for ignoring or disregarding the claims of significant personal threats. As the primary judge identified, those arguments depended on a proposition that the claim to fear harm was not a claim that would meet the criteria for the grant of a protection visa.

354    The primary judge held that the decision-maker had not disregarded this aspect of the request for intervention and had formed the view that it was a circumstance falling outside those contemplated by clause 4 of the Guidelines. It was common ground, her Honour said, that the claims were of such a nature that, if accepted, would satisfy the criteria for the grant of a protection visa. Her Honour concluded (at [62]):

Thirdly, it was at least open to the Assistant Director to construe the qualification to unique and exceptional circumstances in s 4 of the s 351/417 Guidelines as being designed to ensure that, where the mistreatment alleged could not meet the criteria for a protection visa, the mistreatment could constitute unique and exceptional circumstances for the purposes of determining whether the case should be referred to the Minister. This construction would leave cases where the mistreatment alleged is of a kind apt to meet the criteria for a protection visa (if well founded), to be dealt relevantly by a request under the s 48B Guidelines for the Minister to lift the bar in s 48A so as to allow a further application for a protection visa. That being so, the Assistant Director’s position in the Minute to this effect was not a ‘radical’ misconstruction or misapplication of the s 351/417 Guidelines (see above at [20]-[21]). To the contrary, it is a reasonable and logical construction of the policy. Indeed, were it necessary, I would find that this was the preferable construction. As such, the applicant has not established that the Assistant Minister’s ‘decision’ is legally unreasonable on the basis alleged in ground 2.

(original emphasis)

355    There are two grounds of appeal.

Ground 1

356    On its terms, the first ground of appeal re-agitates the same arguments advanced at first instance in respect of the changed circumstance concerning the health of DCM20’s mother. The ground otherwise alleges (without particulars) appealable error on the part of the primary judge in rejecting those arguments.

357    The written submissions in support of this ground raise an additional complaint in respect of the non-referral decision that was not argued (and so not decided) at first instance. The argument is that the decision-maker did not consider a proposal that had been advanced in the 2019 request that DCM20 be granted a three month visitor visa which would enable her to apply on shore for a carer visa, on the basis of her status as her mother’s full-time carer. That complaint does not find expression in the grounds of appeal. It has nonetheless been answered by the respondents and so will be considered and determined.

358    As Counsel for the Minister submitted, the decision-maker was plainly aware of the claim that DCM20 has become the full-time carer for her mother. That was the claimed change in circumstance that fell to be evaluated, and it was in fact evaluated. In the decision-maker’s evaluation, that circumstance did not fulfil the criteria in the Guidelines, including because of other supports available for the mother, who then resided with other members of DCM20’s family. It is implicit in those conclusions that the request for intervention should not be referred to the Minister, including for the purpose of facilitating DCM20’s intention to apply for a visa founded on her status as her mother’s full-time carer.

359    To the extent that the first ground of appeal otherwise alleges appealable error on the part of the primary judge in rejecting all of the arguments underpinning the first ground for judicial review, that bare allegation has not been particularised in written submissions, nor has the reasoning of the primary judge otherwise been shown to involve error in any particular respect. Given the lack of particularity in argument, I do not consider it necessary to repeat all that was said by the primary judge in rejecting the contention that the decision was affected by legal unreasonableness. To the extent that the same arguments were repeated on the appeal, I would reject them for the same detailed and considered reasons expressed by the primary judge, which I gratefully adopt.

Ground 2

360    The second ground of appeal alleges appealable error by the primary judge in rejecting the second ground for judicial review. It is relevantly expressed as follows:

The second respondent misconstrued the Guidelines in dealing with the Sexual Assault Claim. For example, on the proper construction of sections 4 and 10 of the Guidelines, a request that ‘raises claims only with respect to Australia’s non refoulement obligations’ did not meet the guidelines for referral to the Minister. However, where a request for Ministerial intervention under ss 351 or 417 of the Act includes a claim in relation to Australian’s non refoulement obligations, as well as other claims which might involve unique or exceptional circumstances, the claim in relation to Australia’s non refoulement obligations cannot be excluded by a decision-maker in the position of the second respondent in determining whether the request should be referred to the Minister. Perry J, at [55]-[60] of the Judgment, dismissed this ground of challenge to the decision of the second respondent. Perry J erred in dismissing this ground.

361    The written submissions in support of this ground contain an acknowledgment that the claimed fear of harm was one that had been present for many years. In the request for intervention, it had not been suggested that there had been any recent development that had increased the risk.

362    It was submitted that even if the claim formed a part of DCM20’s earlier application for a protection visa, the claim had not been considered in any of the previous requests made under s 351 of the Act. The submissions otherwise repeated the arguments that had been advanced at first instance in support of the second ground for judicial review. The submissions do not demonstrate error in the substantive disposition of those arguments by the primary judge, particularly the approach her Honour took to the construction of the Guidelines in the passage at [62] of her Honour’s reasons (extracted at [354] above).

363    I am not satisfied that there is appealable error in the approach of the primary judge. Her Honour was correct to find that the Guidelines were not misconstrued by the original decision-maker, at least not in a way that would give rise to a finding that the decision not to refer the request to the Minister was legally unreasonable. To the extent that it is necessary to express any concluded view as to the proper construction of the Guidelines, I respectfully share the view of the primary judge.

364    To the extent that it was submitted that the claimed fear of harm was not so as to attract Australia’s non-refoulement obligations (which is somewhat unclear), that argument is a departure from the common ground on which the arguments at first instance were founded. As the primary judge said (at [61]), such a submission could not be sustained having regard to the manner in which the claim was expressed in the 2019 request. As alleged, the claims were clearly of a kind that (if accepted) would fulfil one or both of the alternate criteria for a protection visa. Properly construed, the Guidelines permitted the rejection of the request on the basis that the proper course was for DCM20 to request intervention under s 48B of the Act to enable her to make another protection visa application after previously being refused. The circumstance that a request under s 48B may be denied on the basis that it was repetitive of earlier protection claims does not evidence legal unreasonableness in rejecting the request made under s 351 of the Act.

365    It follows that this appeal must be dismissed.

Associate:

Dated:    23 November 2021