FEDERAL COURT OF AUSTRALIA

Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] FCA 813

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding is a citizen of Bangladesh. He is presently in immigration detention on Christmas Island. He has sought a Protection (Class XA) visa. On 4 April 2017 the Minister notified him of an intention to consider refusal of his application under s 501(1) of the Migration Act 1958 (Cth) (the “Migration Act”). It was that letter which apparently spurred the Applicant into action. Judicial intervention was sought.

2    The proceeding presently before this Court was initially commenced in the High Court of Australia.

3    On 9 May 2017, Edelman J dismissed an application seeking an interlocutory injunction and an order of habeas corpus: Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] HCA Trans 98. The Applicant sought to restrain the Minister “from exercising his discretion pursuant to s 501(1) of the Migration Act 1958 (Cth) to refuse the [Applicant’s] application for a protection visa, pending the hearing and final determination of the principal proceedings”. The “urgency” relied upon by the Applicant in support of his interlocutory relief “was said to arise because of the applicant’s fear that he would be returned to his country of origin following the exercise of discretion by the Minister prior to the determination of his originating proceeding”: Plaintiff S111/2017 v Minister for Immigration and Border Protection (unreported, High Court of Australia, Edelman J, 9 May 2017).

4    In dismissing the applications for interlocutory relief, Edelman J concluded that the applicant’s case was “weak”. His Honour was also of the view that the application was “premature”. His Honour remitted the proceeding to this Court pursuant to s 44 of the Judiciary Act 1903 (Cth).

5    The facts have not changed in any significant way since May 2017. Nor has the evidence. The Minister has, as yet, made no decision pursuant to s 501. Albeit views expressed in the context of an interlocutory application, Edelman J’s characterisation of the case sought to be advanced as “weak” remains accurate. The Applicant’s case has got no stronger in the interim.

6    The present application for final relief is to be dismissed and dismissed for the same reasons as those given by Edelman J.

7    Given that the Applicant remains in detention, it is desirable to have reasons published and orders made as soon as practicable. Although the care with which Counsel for the Applicant developed his arguments would in different circumstances have warranted a lengthier exploration of the principles he sought to develop, each of his arguments fail at the outset. It is desirable to address those fundamental deficiencies in his argument sooner rather than later.

The background facts

8    The background facts to the present proceeding are those to be distilled from two affidavits filed by the Applicant in the High Court. No further evidence was sought to be relied upon.

9    The Applicant was born in Bangladesh in 1986 and arrived in Australia a few years later when his father was posted to a position at the embassy in Australia. He married his Australian wife in 2012 and has a four year old daughter.

10    In 2005 and 2008 he was convicted of aggravated robbery and sentenced to four years and five years imprisonment respectively. He was also convicted in 2012 of a variety of driving offences, including drink driving and obstructing and/or resisting a public official.

11    Over the years he has applied for a number of visas.

12    In 2008 he unsuccessfully applied for a business visa. That application was rejected upon the basis that he did not pass the character test set forth in s 501. In 2012 he applied for a spouse visa. But that application was likewise refused.

13    In September 2015 he applied for a protection visa. That application has had a chequered history. The sequence of decision-making, both by the delegate and thereafter by the Administrative Appeals Tribunal, remains a little uncertain. But it would appear that a delegate of the Minister refused the application upon the basis that the applicant was not a refugee under s 36(2)(a) of the Migration Act. That decision was affirmed by the Tribunal. But the Tribunal’s decision was quashed by the Federal Circuit Court and the matter remitted to the Tribunal for reconsideration. A reconstituted Tribunal found that the applicant was a refugee. It was at that stage that the Minister notified the Applicant of his intention to consider refusal of the protection visa application under s 501.

14    A copy of the application made in September 2015, together with any materials or submissions which may have been forwarded with that application, were not before this Court. There was, accordingly, no evidence as to whether or not the Applicant then expressly addressed his prior criminal history and put forward that issue as an issue in need of resolution. Certainly, no reliance was placed before this Court upon any part of the documents that may have formed part of that application as a basis upon which the Minister or his officers were then called upon to address and resolve the potential application of s 501 of the Migration Act. Nor were a copy of the Tribunal’s reasons for decision on either the first or second occasion made available to the Court.

The Migration Act

15    A number of provisions of the Migration Act assume central relevance.

16    Section 36 provides in part as follows:

Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

…

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

…

Section 65 provides (in relevant part) as follows:

Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

…

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

…

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

One of the criteria prescribed by Schedule 2 of the Migration Regulations 1994 (Cth) is Public Interest Criterion 4001. That criterion, found in Schedule 4 of the Regulations, provides in part as follows:

Public interest criteria

4001    Either:

(a)    the person satisfies the Minister that the person passes the character test; or

(b)    the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

(c)    the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

(d)    the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

17    Section 197C of the Migration Act provides as follows:

Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

And s 198 provides (in part) as follows:

Removal from Australia of unlawful non-citizens

Removal on request

(1)    An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

…

18    Section 501 provides in relevant part as follows:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

…

(3)    The Minister may:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

19    Of relevance to these provisions is the need for the Minister to be “satisfied” that an applicant for a protection visa meets the requirements imposed by s 36(2) and the requirement imposed by s 65 for the Minister to be “satisfied” that an applicant meets the “criteria” prescribed by the Act or the Regulations. If so satisfied, the Minister “is to grant the visa”; “if not so satisfied”, the Minister “is to refuse to grant the visa”. Section 501, namely the provision which the Minister has foreshadowed may be invoked in respect to the current Applicant, confers a discretion to “refuse to grant a visa” if an applicant does not satisfy the “character test”.

20    On the facts of the present case, it is common ground that the Applicant does not satisfy the “character test”.

A repetition of the arguments relied upon

21    Before the High Court, the Applicant advanced three arguments. Omitting the Particulars provided, the grounds upon which relief was sought were there expressed as follows:

1.    By the unconscionable way in which the defendant has sought to consider the exercise of his discretion, under s 501(1) of the Act, to refuse the plaintiff’s application for a permanent protection visa, and his conduct in relation thereto, he has induced an assumption on the part of the plaintiff which has caused the plaintiff to act to his detriment, and which has caused detriment to third parties (namely the Australian taxpayer), such that the defendant is estopped from exercising the said discretion adversely towards the plaintiff.

…

2.    By the legally unreasonable and disproportionate way in which the defendant has sought to consider the exercise of his discretion, under s 501(1) of the Act, to refuse the plaintiff’s application for a permanent protection visa, and by the denial to him of procedural fairness, the defendant has fallen into jurisdictional error.

…

3.    By the way in which the defendant has sought to consider the exercise of his discretion under ss 197C, 198 and 501(1) of the Act, and his conduct in relation thereto, the defendant has caused federal court processes to be rendered nugatory, and as such has usurped the judicial power of the Commonwealth contrary to Ch III of the Constitution of the Commonwealth.

…

22    Before this Court, the Applicant sought to re-cast his arguments. Leave was granted on 6 June 2017 for the Applicant to amend his application. As amended, the grounds now relied upon before this Court are expressed as follows (without alteration, and again omitting the Particulars):

1.    By the unconscionable way in which the defendant has sought to consider the exercise of his discretion under s 501(1) of the Act, or has exercised his discretion under s 501(1) of the Act, or pursuant to Schedule 4, Public Interest Criterion 4001 of the Regulations, to refuse the plaintiff’s Applicant’s application for a permanent protection visa, and his conduct in relation thereto, he has induced an assumption on the part of the plaintiff Applicant which has caused the plaintiff Applicant to act to his detriment, and which has caused detriment to third parties (namely the Australian taxpayer), such that the defendant Respondent is estopped from exercising the said discretion adversely towards the plaintiff.

…

2.    By the legally unreasonable and disproportionate way in which the defendant Respondent has sought to consider the exercise of his discretion, under s 501(1) of the Act, or has exercised his discretion, under s 501(1) of the Act, or pursuant to Schedule 4, Public Interest Criterion 4001 of the Regulations, to refuse the plaintiff’s Applicants application for a permanent protection visa, and by the denial to him of procedural fairness, the defendant Respondent has fallen into jurisdictional error.

…

3.    By the way in which the defendant Respondent has sought to consider the exercise of his discretion under ss 197C, 198 and 501(1) of the Act/and/or pursuant to Schedule 4, Public Interest Criterion 4001 of the Regulations, and his conduct in relation thereto, the defendant Respondent has caused federal court processes to be rendered nugatory, and as such has usurped the judicial power of the Commonwealth contrary to Ch III of the Constitution of the Commonwealth.

…

23    Albeit amended, the arguments now sought to be advanced are – as accepted by Counsel for the Applicant – much the same as the arguments previously advanced to the High Court. But the hearing before the High Court, Counsel for the Applicant stressed, was but an interlocutory hearing and an opportunity was sought before this Court to more fully develop the arguments to be resolved. Now relied upon as part of the grounds to be resolved, but not expressly relied upon as a ground before the High Court, was:

    Public Interest Criterion 4001.

Section 197C had previously been relied upon and was described by Counsel for the Applicant during the hearing before Edelman J as “the kicker”: Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] HCA Trans 97. And the relevance of Public Interest Criterion 4001 also formed part of the reasoning of Edelman J: Plaintiff S111/2017 v Minister for Immigration and Border Protection (unreported, High Court of Australia, Edelman J, 9 May 2017).

24    Whatever may be the differences between the arguments as advanced before the High Court and this Court, each of the arguments sought to be relied on have been developed as fully as Counsel desired. But, having considered those arguments, there is no reason to depart from the conclusions and reasons previously expressed by Edelman J.

25    Each of the arguments, it is respectfully concluded, is without merit. The proceeding is to be dismissed with costs.

The estoppel argument

26    Presently left unresolved is whether Australian law has developed to the stage where an estoppel may operate in public law. Although unnecessary to resolve the argument, it may nevertheless be recognised that there are not inconsiderable difficulties in the path of such a doctrine being accepted: e.g., Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 221 per Gummow J. See also: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [71] to [77], [80], (2003) 214 CLR 1 at 23 to 25, 26 to 27 per McHugh and Gummow JJ.

27    It is sufficient for present purposes to accept the principles expressed by Mason CJ in Attorney-General (NSW) v Quin (1990) 170 CLR 1. The Chief Justice there initially set forth the accepted starting point that the Executive cannot bind itself to not perform a duty or exercise a discretion. His Honour expressed this proposition as follows (at 17):

The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power …

So much was accepted by Counsel for the Applicant. But Counsel for the Applicant went on to place reliance upon the following observations of the Chief Justice (at 18) as to “the availability of estoppel against the Executive”, namely:

What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion …

28    Earlier, and in the context of considering the elements to be satisfied if an estoppel could arise in private law, Deane J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 442 to 443 observed:

Instead, it adopted a deliberate policy of going slow to keep its options open but yet retained the executed copy of the lease which had been sent to it only as a step in the process of urgently finalizing a binding agreement. In that context, it is not surprising that the deliberate silence of Waltons caused Mr. Elvy and the Mahers to assume that a binding agreement had been made and that the executed lease, instead of being returned to Nowra, had been retained by Waltons’ solicitor so that it could be lodged for stamping. …

It must have realised that the Mahers had been misled by its silence and inaction and that they believed that a binding agreement for lease had been made. Even then, it said nothing. It took no step to advise the Mahers that the deed of agreement for lease had never been executed by it with the consequence that no binding agreement had been made. Instead, it maintained its deliberate silence and thereby kept open for itself the option of moving into the building which was being constructed to its specification until, in its own good time, it decided that it did not wish to proceed with the lease. Then, and only then, it advised the Mahers that it would not be proceeding and sought to leave them to bear the resulting loss. That was on 19 January 1984, some sixteen days before the nominated date for completion of the building. In the meantime, the Mahers’ belief that they had a binding agreement had led them to demolish a building which they otherwise would not have demolished, to borrow money from their bank on the basis that they had a binding agreement for lease with Waltons and to commence construction of a building which they would otherwise not have built.

These facts suffice to found an estoppel precluding Waltons from denying the existence of a binding agreement for lease. Indeed, these facts call into play the operation of perhaps the clearest emanation of estoppel by conduct, namely, the principle which precludes departure from a representation or an induced assumption (a “representation … by silence”: Laws Holdings Pty Ltd v Short [(1972) 46 ALJR 563 at 571]) of existing fact in circumstances where the party estopped has knowingly and silently stood by and watched the other party act to his detriment.

29    Reliance upon the observations of Mason CJ and those of Deane J as to an “induced assumption”, however, does not assist the Applicant for either of two reasons.

30    First, the “representation” or the “induced assumption” relied upon by the Applicant was that s 501 would not be relied upon when determining the application for the protection visa. In contrast to the earlier decisions that had been made to refuse the application for a business visa in 2008 and the application for a spouse visa in 2012 when reliance was quickly placed upon s 501 on both occasions, the application for a protection visa made in 2015 met with no like rejection at the outset in reliance upon s 501. Indeed, Counsel for the Applicant stressed that the application for a protection visa progressed through at least six stages, namely:

    the application for the protection visa;

    the initial decision of the delegate refusing the application;

    the first decision of the Administrative Appeals Tribunal, with the recommendation then being made for Ministerial intervention pursuant to s 417 of the Migration Act;

    the consideration given by the Minister as to an exercise of the power conferred by s 417;

    the application for judicial review before the Federal Circuit Court; and

    the second decision of the Administrative Appeals Tribunal.

When no reliance was placed at the outset upon s 501 when consideration was being given to the application for a protection visa, the Applicant – so the argument ran – was “induced” to assume that there would be no later reliance upon s 501. That state of assumption, it was further contended, was only reinforced by reference to ss 197C and 198 and the legislative objective of making decisions “as soon as reasonably practicable”. Fragmented decision-making, with possible reliance being placed upon s 501 at the very end of decision-making, rather than at the beginning, was said to run counter to this objective.

31    Notwithstanding the apparent conviction with which the argument was advanced, there certainly remains no express representation that future reliance would not be placed upon s 501 and there remained no clearly expressed basis upon which the Applicant could “assume” that s 501 may not be relied upon at some stage in the future.

32    The “silence” of the Minister or his delegates in 2015 was, on the Applicant’s approach, either transformed into a “representation” or an “inducement” to the Applicant to proceed upon an “assumption” the Applicant had made but not communicated to the Minister or his Department. Neither analysis, with respect, should be accepted. The facts certainly fall well short of establishing any “deliberate silence” as envisaged by Deane J in Waltons Stores.

33    Even if such an “induced assumption” could be distilled from the “silence” of the Minister or his failure to expressly state that he reserved the ability to invoke s 501 at some time in the future, the second difficulty confronting the Applicant is his inability to identify any prejudice arising from any such “induced assumption” or any manner in which he “acted on the representation”.

34    To confront this difficulty, Counsel for the Applicant acknowledged the absence of any evidence from the Applicant as to how he would have acted had he been told at the outset that future consideration could be given to reliance being placed upon s 501. Indeed, there was no evidence that the Applicant had made any “assumption” as to the manner in which his application would be resolved, be it an assumption founded upon any “inducement” emanating from the Minister or his Department or otherwise. But Counsel for the Applicant insisted that there was no need for evidence. On his approach, if potential reliance upon s 501 was foreshadowed at the outset, there were only two available options, namely:

    to abandon any application for a protection visa and to return to Bangladesh; or

    to press on with his application and seek (if necessary) administrative and judicial review in full knowledge that s 501 remained a power which could be exercised at any point of time.

These were the options. The prejudice relied upon was the denial of an opportunity to make a choice as to how he should respond.

35    On the argument advanced on behalf of the Applicant, it was incumbent upon the Minister to either immediately foreshadow when an application is made for a protection visa that reliance may be placed upon s 501; or, on the facts of the present case (arising as they do in the context of (inter alia) the decisions in 2008 and 2012 when reliance was quickly placed upon s 501), it was incumbent upon the Minister to foreshadow as soon as the protection visa application was lodged in 2015 that reliance could be placed upon s 501. If such notice was not then given, the argument was that the Minister was thereafter precluded from placing reliance upon s 501.

36    But that denial of choice, it is respectfully considered, is neither any change of position nor any change of position in reliance upon any “induced assumption”. There was, as accepted by Counsel on behalf of the Applicant, no express or implied limitation evidenced in the Migration Act as to the sequence in which one or other of the statutory powers could be exercised. For example, reliance could be placed on s 501 at the outset: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 at [43] per Bromberg and Mortimer JJ. But there was no legislative imperative to exercise one or other of the relevant powers in any particular order. Nor, on one view of the facts, was there any imperative for consideration to be given to possible reliance upon s 501 at any point of time prior to the second of the two Tribunal decisions. Indeed, after the first Tribunal decision when the Applicant had been found not to be a person to whom protection obligations were owed, that conclusion of itself – if not set aside – would have been sufficient to doom the application to failure. Reliance upon s 501 at that point of time would have been unnecessary. Why it was incumbent upon the Minister to foreshadow at the outset possible reliance upon s 501, either as a general proposition or by reference to the facts of the present case, was not adequately explained.

37    The estoppel argument fails. Edelman J, it may be noted, rejected the like argument at the interlocutory hearing: Plaintiff S111/2017 v Minister for Immigration and Border Protection (unreported, High Court of Australia, Edelman J, 9 May 2017).

38    Even assuming that there had been an “induced assumption” or a “representation” that had been made and “acted on” by the Applicant, left unexplained was how the Minister could grant a visa in circumstances where for the purposes of s 65 he was required “to refuse to grant” the visa. Even if there may be circumstances, as envisaged by Mason CJ in Quin, where what is in issue is “the exercise of the relevant discretion” and where it may be possible “to hold the Executive to a representation” so as to avoid “grave injustice to the individual”, left unexplained is how the Minister may be held to his “representation” where he is simultaneously under a legislative command “to refuse to grant” the visa. Although the Applicant in his written Outline of Submissions contended that the present case was one in which there was “no question of an estoppel forcing the Respondent to act ultra vires”, how that submission was consistent with the mandate imposed by s 65 “to refuse to grant” the visa was not further explained.

Procedural fairness & legal unreasonableness

39    The second of the arguments relied upon is an alleged denial of procedural fairness and unreasonableness.

40    As Counsel for the Applicant candidly acknowledged at the outset, although all three submissions put forth were expressed as discrete arguments each having their own individual merit, the arguments “all meld in together” and so could – and should – be cumulatively considered.

41    The discrete argument as to a denial of procedural fairness overlapped the estoppel argument. It was nevertheless expressed as a proposition that the Minister was obliged to advise the Applicant at the outset of the consideration being given to the protection visa application that reliance could be placed in the future upon s 501 and to then give the Applicant an opportunity to respond. Such an obligation arose, so the argument ran, especially by reason of the 2008 and 2012 decisions and by reason of ss 197C and 198. Again it was submitted on behalf of the Applicant that the fragmentation in the consideration of an application for a protection visa with a determination as to refugee status potentially proceeding separately from a later determination as to the application of s 501 was only productive of delay and was a matter in respect to which the Applicant was entitled to make submissions. Upon such an approach, Counsel for the Applicant submitted that the Minister was obliged to tell the Applicant at the outset that he should not assume that at some future stage reliance would not (or could not) be placed upon s 501 even if he were to be found to be a person to whom Australia owed protection obligations.

42    That argument is also rejected. The opportunity to be heard in respect to any exercise of power under s 501 arises when consideration is being given to the exercise of that power. And such an opportunity is presently being extended to the Applicant. The letter dated 4 April 2017 expressly stated that the Applicant was being given “an opportunity to comment or provide information on whether you pass the character test”. And there is no reason why all of the arguments now being relied upon by the Applicant cannot be made to the Minister – including, should the Applicant see fit, a submission as to the “unfairness” of now relying upon s 501 where no earlier notice of such an intention had been foreshadowed.

43    There has been no denial of procedural fairness.

44    Nor do the facts constitute legal “unreasonableness”. There have been many judicial expressions as to what must be established in order to make out an argument that an administrative decision is so unreasonable that it should be set aside. The formulation as relied upon by Counsel for the Applicant were the following observations of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at 367:

[76]    As to the inferences that may be drawn by an appellate court, it was said in House v The King [(1936) 55 CLR 499 at 505] that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

Although the acceptance or rejection of an argument as to unreasonableness is in many cases not susceptible to detailed reasoning, and is more often than not simply a conclusion based upon an assessment of the competing merits of the arguments presented, no conclusion can be reached in the present case that the consideration now being given by the Minister to the possible application of s 501 can be characterised as conduct which “lacks an evident and intelligible justification”.

45    Although it may readily be accepted that the Minister could have foreshadowed possible reliance upon s 501 at a far earlier stage in the decision-making process, the mere prospect of a different sequence in the administrative decision-making process is not sufficient to render the present process of consideration “unreasonable”. And that is so irrespective of whether or not reliance had more expeditiously been placed upon s 501 in 2008 and 2012. Why consideration was then placed upon s 501 at the outset when making decisions in 2008 and 2012 may, perhaps, be more readily understood if the facts of each decision-making process then undertaken had been exposed to scrutiny in the present proceeding. But there was no attempt to expose the decision-making processes in 2008 and 2012 to any degree of scrutiny; the sole fact relied upon by Counsel for the Applicant was that reliance had then been placed upon s 501 at the outset rather than – as in the present case – consideration being given to s 501 at a far later stage in the decision-making process. Where there is an accepted range of decisions which can potentially be reached, it is difficult to characterise any particular decision as “unreasonable”: Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at 351. French CJ there observed:

[28]    … After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

Hayne, Kiefel and Bell JJ expressed the same conclusion when they observed (at 363):

[66]    This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker.

(Citations omitted)

Just as a decision once reached cannot be characterised as unreasonable where reasonable minds may have reached different conclusions, it is even more difficult to characterise a decision-making process as unreasonable where reasonable minds may well differ as to the administrative sequence in which particular matters should be considered.

The Constitutional argument

46    The Constitutional argument can be briefly stated. The Constitutional validity of s 501, for the purposes of this argument, was accepted by Counsel for the Applicant. No argument was advanced that the Legislature had, in enacting s 501, usurped the judicial power of the Commonwealth.

47    But there was said to be judicial usurpation by the Executive of the judicial power of the Commonwealth when the Executive “sat back” with full knowledge that a decision had been made refusing a protection visa and with full knowledge that the claimant was pursuing both administrative and judicial review and only after that decision-making process had been completed thereafter “usurped” the decision of the Court by then invoking s 501 to reach a conclusion contrary to that reached by the Court.

48    Although it may be highly desirable for the Executive to have foreshadowed at a far earlier point of time its possible reliance upon s 501, the fundamental difficulty confronting the Applicant is the simple fact that once a decision is made in respect to the application of s 501, that administrative decision can then be exposed to judicial scrutiny. There has been no “usurpation” of the functions of the Court. Even an inappropriately belated invocation of s 501 does not involve any Executive action which seeks to “direct” the Courts as to how the judiciary should act or respond in respect to such action: cf. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 36 at 37 per Brennan, Deane and Dawson JJ; Duncan v Independent Commission Against Corruption [2015] HCA 32 at [23] to [24], (2015) 256 CLR 83 at 97 per French CJ, Kiefel, Bell and Keane JJ.

Conclusions

49    Notwithstanding the invitation extended by Counsel for the Applicant for this Court to embrace the principle of an estoppel which operates so as to preclude the Minister giving consideration to s 501, the invitation is refused. The facts of the present case, with respect, fall far short of providing any certain basis upon which the operation of such a doctrine in public law should be explored. Nor was there, with respect, any real assistance provided as to the legal principles which would have needed to be formulated together with their application to the facts. There was, in particular, no real assistance provided as to why any weighing of the need to hold the Minister to some unexpressed representation against the “grave injustice” said to have been suffered by the Applicant would not trespass well into the forbidden zone of merits review rather than judicial review: cf. Kurtovic (1990) 21 FCR 193 at 221 per Gummow J.

50    None of the arguments advanced on behalf of the Applicant have any merit. To the extent that the arguments now advanced may have been more fully developed than when the Applicant was before the High Court, those arguments have been addressed. To the extent that the arguments remain substantially the same as those previously advanced before the High Court, concurrence is respectfully expressed with the reasoning and conclusions of Edelman J.

51    Each of the grounds now relied upon is rejected.

52    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the Respondent.

Associate:

Dated:    20 July 2017