FEDERAL COURT OF AUSTRALIA
XAD (by her Litigation Guardian XAE) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 495
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Within seven days, the parties provide any agreed minute of proposed orders to give effect to these reasons and in relation to costs.
2. If the parties cannot agree on such orders, within 14 days each party file and serve a minute of proposed orders to give effect to these reasons and in relation to costs, together with written submissions in support of those orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MOSHINSKY J:
Introduction and summary
1 The applicant is a two-year-old girl who was born in Australia. Her father and mother, who are citizens of Sri Lanka, arrived in Australia by boat in 2012 and 2013 respectively. The applicant has an older sister who was born in Australia.
2 In September 2018, the applicant's representative requested Ministerial intervention to 'lift the bar' on the applicant making an application for a visa, so that the applicant could apply for a protection visa. Although the applicant was born in Australia, she falls within the definition of "unauthorised maritime arrival" in the Migration Act 1958 (Cth) because her parents are "unauthorised maritime arrivals" for the purposes of the Act. The applicant is therefore subject to the 'bar' on making an application for a visa in s 46A(1) of the Act. Under s 46A(2), the relevant Ministers have the power to 'lift the bar' and enable a person in the applicant's position to apply for a visa.
3 The applicant's representative's request for Ministerial intervention noted that the other members of the applicant's family had previously put forward claims for protection and these were of relevance to the applicant's claims. The request went on to state that, in addition to those claims, the applicant had claims that went beyond those that had been considered in the context of the protection visa applications of the other members of her family. It was submitted that the applicant had a very strong claim based on events that had occurred since the determination of the other family members' protection visa applications.
4 Also in September 2018, in the context of a "pre-removal clearance" process for the purposes of involuntarily removing the applicant's family to Sri Lanka, a Departmental officer considered whether Australia had protection obligations in respect of the applicant's father. The Departmental officer found that "there is new information in this case that warrants further assessment" and that there was "a risk that [the applicant's father's] involuntary removal to Sri Lanka may breach Australia's international non-refoulement obligations". The Departmental officer recommended that the case warranted further assessment against Australia's non-refoulement obligations.
5 In mid-May 2019, the then Minister for Immigration, Citizenship and Multicultural Affairs (the Minister for Immigration), through his senior adviser, requested the Department to prepare a "full brief" on the applicant's family.
6 On 24 May 2019, the Department of Home Affairs (the Department) provided the Minister for Immigration with a submission in relation to the applicant's family (the May 2019 Submission), including recommendations that the Minister exercise the powers to lift the applicable bars to enable the applicant's family to apply for protection visas. The applicable bars were under s 46A(1) (in respect of all members of the applicant's family) and under s 48A (in respect of the applicant's parents and sister).
7 The Minister for Immigration did not make any formal decision in respect of the May 2019 Submission. He did not circle either "agreed" or "not agreed" in respect of the recommendations that he exercise his powers to lift the applicable bars. In late May 2019, the submission was returned to the Department to be finalised "NFA" (No Further Action).
8 On 24 July 2019, the applicant's family's case was discussed at a meeting between the Minister for Home Affairs and the Secretary of the Department, Michael Pezzullo.
9 In late July 2019, a pre-removal clearance was requested in respect of the applicant's father. On 2 August 2019, a Departmental officer completed a pre-removal clearance assessment in relation to the applicant's father, concluding that his removal to Sri Lanka did not raise concerns relating to Australia's non-refoulement obligations.
10 In mid-August 2019, a Departmental officer carried out a protection obligations assessment in relation to the applicant (the August 2019 Assessment). This was completed on 21 August 2019. The Departmental officer concluded that the applicant's claims did not engage Australia's protection obligations.
11 On or about 3 September 2019, the Department prepared a Ministerial submission in relation to the applicant (the September 2019 Submission). The submission was addressed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. There had been a change in portfolio titles following the May 2019 federal election. It will be convenient to refer to the Minister with this portfolio description also as the "Minister for Immigration". The submission contained a recommendation that the Minister indicate whether he wished to consider exercising the power in s 46A(2) in respect of the applicant. The Minister for Immigration circled "not consider" and signed the submission on 3 September 2019.
12 On 12 September 2019, the applicant's representatives lodged an application for a Safe Haven Enterprise visa (a form of protection visa) on her behalf. This was rejected as an invalid application.
13 Against that background, the applicant relies on two contentions in this proceeding:
(a) The applicant's first contention relates to a determination made by the then Minister for Immigration and Border Protection under s 46A(2) on 26 July 2017 (the July 2017 Determination). Broadly, the determination related to certain children of unauthorised maritime arrivals, and provided that the bar in s 46A(1) did not apply to an application by such a child for a Temporary Protection (Class XD) visa or a Safe Haven Enterprise (Class XE) visa if three specified criteria were satisfied. The applicant's contention raises an issue of construction of the July 2017 Determination. The applicant submits that it is sufficient if the criteria set out in the July 2017 Determination were satisfied on the date when the determination was made (26 July 2017). The applicant contends that, as she satisfied the criteria as at 26 July 2017, her September 2019 visa application was valid. The respondents, on the other hand, submit that whether the criteria are satisfied falls to be determined on an application by application basis, as at the time of the making of an application (here, 12 September 2019). The respondents contend that, as the criteria were not satisfied as at 12 September 2019, the applicant's visa application was invalid.
(b) The applicant's second contention, which is in the alternative to her first contention, is that one of the relevant Ministers – either the Minister for Immigration or the Minister for Home Affairs – made a decision to consider exercising the power to lift the bar to enable the applicant to apply for a protection visa. In making this contention, the applicant relies on a series of High Court decisions that have established that there is a distinction between: (i) a decision to consider exercising the power to lift the bar (referred to as a personal procedural decision); and (ii) a decision to lift the bar (referred to as a substantive decision). Those cases establish that where the Minister has made a decision to consider exercising the power to lift the bar, processes undertaken by the Department to assist in the Minister's consideration of the possible exercise of the power will be characterised as having a statutory basis. It follows, the cases establish, that the rules of procedural fairness apply to the process if it affects the person's rights or interests. The applicant contends that either the Minister for Immigration (in or before May 2019) or the Minister for Home Affairs (in July 2019) made a personal procedural decision to consider exercising the power to lift the bar in respect of the applicant and that, accordingly, the August 2019 Assessment had a statutory basis. The applicant contends that the rules of procedural fairness applied to that process and that she was not afforded procedural fairness. The respondents dispute that either Minister made a personal procedural decision to consider exercising the power to lift the bar. They also dispute other aspects of the applicant's second contention. However, there is no real dispute between the parties that, if the rules of procedural fairness applied, the applicant was not afforded procedural fairness in the conduct of the August 2019 Assessment.
14 The following is a summary of my conclusions:
(a) I reject the applicant's first contention. For the reasons set out below, I consider the respondents' construction of the July 2017 Determination to be correct. It follows that the applicant's September 2019 visa application was not a valid application.
(b) In relation to the applicant's second contention, I reject the applicant's contention that the Minister for Home Affairs made a personal procedural decision to consider exercising the power to lift the bar in respect of the applicant. I do not consider the evidence sufficient to support an inference that he made such a decision. However, for the reason set out below, I find that the Minister for Immigration did make a decision, in mid-May 2019, to consider exercising the power to lift the bar in respect of the applicant. I consider that an inference to this effect arises from the material before the Court, including the terms of the May 2019 Submission. It is to be inferred that, in the days following 14 May 2019, the Minister for Immigration requested the Department to prepare a full brief on the applicant's family, including the option that the Minister exercise the powers to lift the applicable bars to enable them to apply for protection visas. Thus, the Minister decided to consider exercising the power to lift the bar in respect of the applicant. Further, for the reasons set out below, I conclude that the relevant processes undertaken by the Department, including the conduct of the August 2019 Assessment, had a statutory basis. I also conclude that the processes affected the applicant's interests, and so the rules of procedural fairness applied. I conclude that the applicant was not afforded procedural fairness in the conduct of the August 2019 Assessment and that a declaration should be made to this effect.
15 The balance of these reasons will be structured under the following headings:
(a) Procedural matters.
(b) Evidence.
(c) Key legislative provisions.
(d) The applicant's first contention.
(e) The applicant's second contention.
(f) Conclusion.
Procedural matters
16 This proceeding was commenced in the Federal Circuit Court of Australia and subsequently transferred to this Court. The respondents to the proceeding are the Minister for Immigration, the Commonwealth of Australia, the Minister for Home Affairs and the Secretary of the Department.
17 On 19 September 2019, an interlocutory injunction was granted, restraining the respondents from removing the applicant from Australia pending the hearing and determination of the proceeding: XAD by her Litigation Guardian XAE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1550.
18 Following a case management hearing in December 2019, orders were made for the filing of pleadings and the matter was listed for hearing on 21 and 25 February 2020. Outlines of submissions were filed by the parties in advance of the hearing. In the outline of submissions filed on behalf of the applicant, two contentions were advanced: first, that the applicant had made a valid visa application (on the basis that the July 2017 Determination had lifted the bar in s 46A(1) in respect of the applicant); and, secondly, in the alternative, that either or both of the relevant Ministers had decided to consider exercising the power to lift the bar, that the August 2019 Assessment had a statutory basis, and that the rules of procedural fairness applied. In connection with the second contention, the applicant submitted that such a decision had been made, in or before May 2019, by the Minister for Immigration, relying on recently discovered documents. In the respondents' outline of submissions, they objected to that submission on the basis that it went beyond the pleaded case. At the outset of the hearing on 21 February 2020, the parties indicated that they had resolved the pleading issue on the basis that the respondents would withdraw their objection to the applicant's submission, the respondents would file further evidence in relation to the applicant's submission, and the hearing of the applicant's second contention would be deferred until the second day listed for the hearing of the matter. Accordingly, on the first day of the hearing the parties made oral submissions in relation to the applicant's first contention, and the hearing of the applicant's second contention was deferred until the second day of the hearing.
19 Another matter raised at the outset of the hearing was an application by the applicant for leave to amend her statement of claim to delete [19] of that document. This application was made by an interlocutory application dated 19 February 2020. In the context of the discussion described in the preceding paragraph, I raised with the applicant's counsel whether the applicant's statement of claim should also be amended to better reflect the applicant's second contention as set out in her outline of submissions. I also raised whether the originating application should be amended to reflect the fact that the proceeding had been transferred from the Federal Circuit Court to this Court. Orders were made for the applicant to provide a draft amended statement of claim and a draft amended originating application, and for the respondents to provide a draft amended defence. On the second day of the hearing, the parties were granted leave to file those documents. Accordingly, the final versions of those documents were: the amended originating application filed on 25 February 2020; the applicant's amended statement of claim filed on 25 February 2020; and the respondents' amended defence filed on 26 February 2020. In addition, the pleadings include the applicant's reply filed on 2 December 2019 and the respondents' reply (or rejoinder) filed on 13 December 2019.
Evidence
20 The applicant relies on a bundle of documents referred to as the applicant's tender bundle and a supplementary bundle of documents.
21 The applicant relies on affidavits of Carina Ford, the solicitor acting for the applicant, dated 13 September 2019, 17 September 2019, 9 December 2019, 10 February 2020 and 20 February 2020.
22 In addition, the applicant relies on a number of affidavits filed by the respondents in the proceeding. These affidavits were filed in connection with the applicant's application for an interlocutory injunction or in support of claims by the respondents that public interest immunity or legal professional privilege applied to certain discovered documents (or parts of those documents). The affidavits filed by the respondents that are relied on by the applicant are as follows:
(a) an affidavit of Luke Mansfield, the First Assistant Secretary of the Refugee, Humanitarian and Settlement Division in the Department, dated 11 September 2019;
(b) an affidavit of Malisa de Lourdes Golightly, the Deputy Secretary of the Immigration and Settlement Services Group in the Department, dated 24 January 2020;
(c) affidavits of David John Wilden, the First Assistant Secretary, International Policy Division in the Department, dated 31 January 2020 and 17 February 2020;
(d) an affidavit of Bryce Hutchesson, Ambassador for People Smuggling and Human Trafficking in the Department of Foreign Affairs and Trade, dated 3 February 2020; and
(e) affidavits of Marian Otigwoheh Agbinya, the Principal Legal Officer in the AAT and Removals Injunction Section of the Migration and Citizenship Litigation Branch in the Legal Division of the Corporate Group in the Department, dated 3 February 2020, 16 February 2020 and 17 February 2020.
23 In relation to Ms Agbinya's affidavits, it should be noted that the 17 February 2020 affidavit is described as an amended affidavit and in effect amends the affidavit dated 16 February 2020. Further, the underlined words in [12] of the 17 February 2020 affidavit were not relied on by the respondents when the affidavit was initially read at an interlocutory hearing relating to discovery, and are not part of the applicant's tender of this affidavit.
24 The respondents rely on a bundle of documents and on the following affidavits:
(a) an affidavit of James Louis Copeman, Regional Commander, Australian Border Force, dated 12 February 2020;
(b) an affidavit of Jodi Stubbs, the Director of the Ministerial Intervention section of the Status Resolution Branch in the Immigration Integrity and Community Protection Division of the Department, dated 24 February 2020; and
(c) an affidavit of Ross Ian Macdonald, a senior adviser to the Minister for Immigration, dated 23 February 2020.
25 Ms Stubbs's and Mr Macdonald's affidavits relate to the applicant's second contention. Both Ms Stubbs and Mr Macdonald were cross-examined during the second day of the hearing. There was no challenge to the evidence of Ms Stubbs, and I accept her evidence. In relation to Mr Macdonald, as discussed below, he had little recollection of the relevant events. I accept his evidence, save to the extent indicated later in these reasons.
Key legislative provisions
26 Under s 5AA(1A) of the Migration Act, a person is an "unauthorised maritime arrival" if: the person is born in the migration zone; a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival; and the person is not an Australian citizen at the time of the birth. It is common ground that the applicant falls within this definition. Both her mother and her father were "unauthorised maritime arrivals" and the other elements of the definition are satisfied.
27 Section 46A, which is relevant to both of the applicant's contentions, provides as follows:
Visa applications by unauthorised maritime arrivals
(1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
(a) is in Australia; and
(b) either:
(i) is an unlawful non-citizen; or
(ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(1A) Subsection (1) does not apply in relation to an application for a visa if:
(a) either:
(i) the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or
(ii) the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and
(b) the application is for a visa prescribed for the purposes of this paragraph; and
(c) the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
(2A) A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
(2B) The period specified in a determination may be different for different classes of unauthorised maritime arrivals.
(2C) The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3) The power under subsection (2) or (2C) may only be exercised by the Minister personally.
(4) If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination, the determination as varied or the instrument of revocation; and
(b) sets out the reasons for the determination, variation or revocation, referring in particular to the Minister's reasons for thinking that the Minister's actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the unauthorised maritime arrival; or
(b) any information that may identify the unauthorised maritime arrival; or
(c) 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 or any information that may identify that other person.
(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination 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 (2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
28 A decision under s 46A(2) is commonly referred to as a decision to "lift the bar", that is, to lift the bar on making a valid application for a visa imposed by s 46A(1). It will be convenient to adopt this terminology at times in these reasons, but it is important to keep in mind that it is merely a shorthand reference and not to be equated with the statutory text.
29 Section 48A of the Migration Act relevantly provides that, subject to s 48B, a non-citizen who, while in the migration zone, has made an application for a protection visa, where the grant of the visa has been refused, may not make a further application for a protection visa. In that context, s 48B, which is also referred to as a lifting the bar power (in this case, the bar imposed by s 48A), provides as follows:
48B Minister may determine that section 48A does not apply to non-citizen
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
(2) The power under subsection (1) may only be exercised by the Minister personally.
(3) If the Minister makes a determination 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 determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.
(4) A statement under subsection (3) is not to include:
(a) the name of the non-citizen; or
(b) any information that may identify the non-citizen; or
(c) 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 or any information that may identify that other person.
(5) A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.
30 I will deal in turn with each of the applicant's contentions.
The applicant's first contention
31 As noted above, the applicant contends that her application for a Safe Haven Enterprise visa was valid on the basis that the bar was lifted in respect of her by the July 2017 Determination. The issue raised by this contention is one of construction of the July 2017 Determination. In summary, the applicant submits that it is sufficient if the three criteria set out in the July 2017 Determination were satisfied on the date when the determination was made (26 July 2017). The respondents, on the other hand, submit that whether the criteria (or conditions) are satisfied falls to be determined on an application by application basis, as at the time of the making of an application (here, 12 September 2019).
32 The July 2017 Determination was in the following terms:
DETERMINATION UNDER SUBSECTION 46A(2) OF THE MIGRATION ACT 1958 PERMITTING THE MAKING OF A VALID APPLICATION FOR A TEMPORARY PROTECTION (CLASS XD) VISA AND A SAFE HAVEN ENTERPRISE (CLASS XE) VISA
Pursuant to subsection 46A(2) of the Migration Act 1958 (the Act), and thinking that it is in the public interest to do so, I hereby determine that subsection 46A(1) of the Act does not apply to an application by a person who is an unauthorised maritime arrival because of subsection 5AA(1A) of the Act, for a Temporary Protection (Class XD) visa and Safe Haven Enterprise (Class XE) visa, if:
(a) a determination has been made under subsection 46A(2) in relation to a parent of the unauthorised maritime arrival, allowing an application for a Temporary Protection (Class XD) visa and Safe Haven Enterprise (Class XE) visa; and
(b) any application by a parent of the unauthorised maritime arrival pursuant to a determination of the kind mentioned in (a) is made before 1 October 2017; and
(c) a parent of the unauthorised maritime arrival has not made an application for a protection visa, within the meaning of section 35A of the Act, which has been refused and is finally determined within the meaning of the Act.
33 Earlier, on 21 May 2017, the Minister for Immigration and Border Protection announced that all illegal maritime arrivals yet to lodge an application for a Temporary Protection visa or a Safe Haven Enterprise visa were required to do so by 1 October 2017.
34 The materials before the Court include the submission to the Minister for Immigration and Border Protection dated 12 July 2017 in support of the making of the July 2017 Determination (the July 2017 Submission). The submission referred to the "Fast Track cohort of 24,500 illegal maritime arrival (IMA) legacy caseload" and noted that the Minister had exercised the "bar lift power" for the entire Fast Track cohort, other than a small group of 21 IMAs. The submission stated at [4]:
To date, the Department has referred babies born to IMAs in Australia for your consideration to intervene and lift the bar, as they become known to the Department. By signing the decision instruments at Attachment C and Attachment E and the Statements to Parliament at Attachment D and Attachment F, you would lift the bar for these babies as a class of people, contingent on their IMA parents lodging temporary protection applications before 1 October 2017.
Attachment C to the submission was a draft of the July 2017 Determination.
35 The July 2017 Submission also stated at [18]-[22]:
Children born to IMA parents
18. Under the Act, a child born in Australia to IMA parents is also taken to be an IMA and is therefore barred from making a valid application for a visa in Australia. This means that for a child who is an IMA at birth, you are required to make a determination to lift the section 46A(1) application bar to allow them to make a valid application for any visa, including a TPV or SHEV, even if the parent is already the subject of a determination.
19. To date, the Department has referred IMA babies for your consideration as they become known to the Department. This usually occurs when their parents lodge an application that includes their newborn child.
20. To remove the need for you to make individual determinations and ensure babies can be easily included in their parents application ahead of the 1 October 2017 deadline, the Department has prepared section 46A bar lift instruments, with ongoing effect to allow any child born in Australia who is an IMA at birth to apply for a TPV or a SHEV, if you have previously allowed their parent to do so and they have lodged an application before 1 October 2017.
21. Children born onshore to transitory persons require both the section 46A bar and the section 46B bar to be lifted before they can be processed with their parents. As these instruments cover children born onshore to transitory persons (Rudd returnees), instruments for consideration of your power to lift the section 46A and 46B bar, are at Attachment C and Attachment E and the Statements to Parliament at Attachment D and Attachment F.
22. These generic determinations will not apply to children whose parents' application for a protection visa has been refused both by the Department and at merits review. The Department believes it appropriate for you to continue considering those children, on a case by case basis, to allow you to make an assessment of their individual circumstances before allowing an application where the child's parents have exhausted their claims.
36 The applicant submits that, on the date of the making of the July 2017 Determination:
(a) criterion (a) was satisfied – a determination had been made under s 46A(2) in relation to the applicant's mother, allowing her to apply for a Temporary Protection (Class XD) visa and Safe Haven Enterprise (Class XE) visa;
(b) criterion (b) was satisfied – the applicant's mother had applied for a Safe Haven Enterprise (Subclass 790) visa on 23 November 2016 (and thus before 1 October 2017); and
(c) criterion (c) was satisfied – the applicant's mother's application for a Safe Haven Enterprise (Subclass 790) visa (being a protection visa mentioned in s 35A) had not been "finally determined" within the meaning of ss 5(9) and 5(9A) because the Immigration Assessment Authority was still considering her case. (The Immigration Assessment Authority made a decision in respect of the applicant's mother – determining the application adversely to her – on 28 August 2017).
37 The applicant's submissions can be summarised as follows:
(a) The Court should find that a determination takes effect when it is made by the Minister, and not upon the making of a visa application. Any other construction obliterates the role of s 46A(2C).
(b) Section 46A works so as to permit the Minister to determine that any current or future visa application made by a person is not barred by s 46A(1). There is nothing in the text or structure of s 46A that suggests that the determination only has legal effect once a visa application is in fact made or lodged. Rather, the provision works by changing the status of a person under s 46A(1) for the purpose of the Act, which change in status becomes relevant immediately. The person knows that they may now make a valid visa application if they otherwise meet the remaining criteria of validity. It is the change in status that happens upon the making of the determination, whether or not the person makes an application at all. When the visa application is lodged, all that happens is that it is not forbidden by s 46A(1).
(c) Thus, on the applicant's case, the bar under s 46A(1) was relaxed in respect of her on 26 July 2017, and that position had not changed when she lodged a Safe Haven Enterprise visa application on 12 September 2019. Accordingly, the Minister must consider this application by dint of s 47 of the Migration Act and reach a decision upon it under s 65. Indeed, this must be so because the operation of s 46A(2C) presumes that there has been an exercise of power, but no visa application.
(d) The applicant's mother's Safe Haven Enterprise visa application was finally determined on 28 August 2017, which on the text of the determination might be thought to put the applicant outside of criterion (c) of the July 2017 Determination, as at the date of the applicant's own Temporary Protection visa application. However, that is not so because a determination under s 46A cannot have an ambulatory operation of that kind. It may be possible, consistently with the terms and structure of s 46A, for the Minister to make a class-based determination which is ambulatory (or conditional) in its terms in respect of the lifting of the bar (i.e. the initial change of status). But, once the bar is lifted, the bar may not be lowered otherwise than in accordance with the procedures for lowering the bar set out in s 46A. That is, even though the initial lifting of the bar may be "ambulatory" or "conditional", the conditions thereof cannot work to change a person's status again by lowering the bar except in compliance with the procedure set down by s 46A. The one caveat is s 46A(2A), which expressly permits the lowering of the bar upon the expiry of a "time period" specified in the determination itself. This is not relevant in this case.
(e) Section 46A(2C) expressly provides the mechanism by which a determination under s 46A(2) may be varied or revoked. The Minister must think that the variation of revocation is in the public interest – a state of mind that must be formed as at the time of the variation or revocation. The variation or revocation must also be in writing, and tabled in Parliament with reasons (s 46A(4)). The Minister must afford procedural fairness to a person prior to variation or revocation: CLM18 v Minister for Home Affairs (2019) 373 ALR 147 (CLM18). This establishes an Anthony Hordern limitation in respect of the power to vary or revoke a determination – the procedure required by s 46A(2C) impliedly limits the ability to lower the bar, such that the only way that variation or revocation can take place – or put another way, the only way that a determination may cease to be in force in respect of a person – is in accordance with the requirements of s 46A(2C): see Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (Anthony Hordern); Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 (Plaintiff S4/2014) at [43]. If it were otherwise, the procedure required by s 46A(2C) could be written out of the Migration Act by Ministerial determination.
(f) Criterion (a) had an immediate effect at the date of the July 2017 Determination, but also ambulatory effect or conditional effect into the future. It would be engaged where a child had a parent who answered that description as at the date of the determination, or where a child comes to have a parent answering that description after the date of the determination. Its operation is limited to a lifting of the bar and does not have any capacity (on its terms) to work in a way that could lower the bar.
(g) Criterion (b) had an immediate effect at the date of the July 2017 Determination, and a limited ambulatory effect or conditional effect into the future (to 1 October 2017) but, again, its operation is limited to a lifting of the bar, and does not have any capacity (on its terms) to work in a way that could lower the bar.
(h) Criterion (c) is complicated. It could have had an immediate effect to raise the bar at the date of the July 2017 Determination, as it did for the applicant. On one reading, that is the end of the matter: criterion (c) excludes children who fell afoul of that qualification as at the date of the determination and otherwise did not have any effect into the future. That reading is to be preferred. But it is not denied that criterion (c) is capable of tolerating a construction that would permit it to work in a way that led to a lowering of the bar after the bar had been raised (the ambulatory construction). On the ambulatory construction, a child born in Australia who met (a), (b) and (c) on one day, might cease to meet (c) on a later day in circumstances where that person has no control over (c) (e.g. when the Immigration Assessment Authority makes a decision in their parent's case). Given that a construction of criterion (c) is open on the text of the determination that gives it meaningful work to do and better fits with s 46A, the Court should prefer the applicant's construction of criterion (c). That is especially the case in the absence of evidence to indicate an ambulatory intention by the Minister. Further, the ambulatory construction is unlikely on the face of the determination because it is ungrammatical with the chapeau of the determination. The chapeau is cast in the present tense ("I hereby determine" that s 46A "does not apply"), indicating that the Minister thought that he was exercising power on 26 July 2017, in respect of a definite class of children.
(i) The allowance of extra time to meet criterion (b) following the date of the determination is explained by the context of the wholesale lowering of the bar on 1 October 2017 discussed in CLM18. The primary concern of criterion (b) is the making of an application; the date of that application – before 1 October 2017 – is secondary. It is secondary because the action discussed in CLM18 meant that it was impossible for any unauthorised maritime arrival parent to have made a visa application after 1 October 2017 in any event (subject to the actual date when that took effect). The mention of a date in criterion (b), then, was subsidiary to the requirement that the parent make a visa application (before a date that was already made a condition of the parent making a valid visa application). Thus, although the applicant's construction of the determination results in some grammatical awkwardness between criterion (b) and the chapeau, it is more harmonious than the ambulatory construction of criterion (c).
38 The respondents submit that whether the criteria (or conditions) in paragraphs (a) to (c) of the July 2017 Determination are satisfied falls to be determined on an application by application basis, as at the time of making the application. If this construction is correct, there is no issue that the applicant's application did not meet the criteria at the date when her application for a Safe Haven Enterprise visa was lodged (12 September 2019). I note for completeness that the respondents do not rely on the reference in s 46A(2) to the giving of written notice. In other words, no point is taken that the applicant's contention fails due to the non-provision of such notice.
39 In my view, for the reasons that follow, the respondents' construction is correct.
40 First, the statutory context and the text of the determination indicate that it is concerned with the validity of applications rather than (as the applicant submits) a person's status. Section 46A(1) refers to an "application" for a visa not being a "valid application". Section 46A(2) refers to subsection (1) not applying to "an application" by the unauthorised maritime arrival. And s 46(1)(e)(ii) refers to s 46A as a provision going to the invalidity of a visa application. Further, the chapeau of the July 2017 Determination states that s 46A(1) does not apply to "an application" by a person who is an unauthorised maritime arrival because of s 5AA(1A) (in general terms, a child of an unauthorised maritime arrival), indicating that the determination operates by reference to applications rather than affecting the status of the child. Thus, the statutory context and the text of the determination support the view that it is focussed on the validity of an application rather than a person's status.
41 Secondly, paragraph (b) of the July 2017 Determination indicates that the criteria are to be applied when an application is made rather than as at the date of the determination. Paragraph (b) of the determination requires that any relevant visa application by a parent of the child "is made before 1 October 2017". This criterion, self-evidently, may be satisfied by an event (the making of a relevant visa application by the parent) that takes place after 26 July 2017. This indicates that the criteria are to be applied as at the date when an application is made.
42 Thirdly, the respondents' construction is supported by the object or purpose of the July 2017 Determination. As explained in the July 2017 Submission, the practice of the Department had been to refer "IMA babies" to the Minister for consideration on a case by case basis as they became known to the Department; this usually occurred when their parents lodged an application that included a newborn child; to remove the need for the Minister to make individual determinations "and ensure babies can be easily included in their parents['] application ahead of the 1 October 2017 deadline", it was proposed to lift the bar "with ongoing effect". This object is better achieved by reading the July 2017 Determination as setting out criteria to be satisfied at the time when an application is made rather than as at 26 July 2017. For example, if a visa application were lodged by a parent, and a child was included in the application, between 26 July 2017 and 1 October 2017, the child may be covered by the July 2017 Determination without the need to refer the individual case to the Minister for exercise of the power given by s 46A(2).
43 Fourthly, while the opening lines of the July 2017 Determination are expressed in the present tense, I do not consider this matter to be an indicator one way or the other. It is not unnatural to use the present tense in this context, even if the criteria are to be assessed at the time of the child's visa application. In any event, as referred to above, the determination expressly refers to "an application".
44 Fifthly, while there is perhaps some awkwardness in the language of paragraph (c), in that it uses both the words "has been refused" and "is finally determined", that awkwardness is present whichever construction is adopted. There is no practical difficulty applying the test in paragraph (c) at the time when the child lodges a visa application.
45 Sixthly, the applicant's reliance upon the Anthony Hordern principle and variation or revocation under s 46A(2C) is misplaced. Section 46A(2C) is concerned with the revocation of a determination (such that it no longer exists in force) or the variation of a determination (so that it continues in force but in amended form). The July 2017 Determination does neither of these things. Rather, it identifies the domain of application of the determination. That does not trench upon s 46A(2C).
46 Having regard to these matters, I consider it reasonably clear that all three criteria set out in the July 2017 Determination are to be assessed at the time when the child lodges his or her visa application and not as at the date when the determination was made. This construction is, in my view, the natural way to read the determination in the context in which it was made.
47 For these reasons, I consider the respondents' construction of the July 2017 Determination to be correct. There is no dispute that the applicant's visa application did not satisfy the criteria in the July 2017 Determination at the time when the application was lodged. Accordingly, I reject the applicant's first contention.
The applicant's second contention
48 The applicant's second contention, which is in the alternative to her first contention, is premised on the applicant not having a valid visa application on foot. The applicant's second contention relates to a request made on her behalf, initially in September 2018 and reiterated in November 2018 and May 2019, that the power conferred by s 46A(2) be exercised. There is no issue that in August 2019 an officer of the Department carried out the August 2019 Assessment. The applicant contends that this assessment was carried out following a personal decision by one of the relevant Ministers (or both) to consider exercising the power to lift the bar in respect of the applicant. The applicant puts her case in two particular ways:
(a) First, it is contended that, in or before May 2019, the Minister for Immigration decided to consider whether to exercise the power under s 46A in favour of the applicant. The applicant submits that this is to be inferred from the terms of a draft brief dated around late May 2019 and prepared by officers of the Department for the Minister's consideration of whether to exercise the power under s 46A in favour of the applicant on a substantive basis.
(b) Secondly, the applicant contends that, on or about 23 July 2019, the Minister for Home Affairs decided to consider whether to exercise the power under s 46A in favour of the applicant. The applicant submits that this is to be inferred from the circumstance of a meeting between the Minister for Home Affairs and the Secretary of the Department, Mr Pezzullo, in or around late July 2019, the meeting brief prepared by officers of the Department for Mr Pezzullo for the purposes of that meeting, and the circumstance of the conduct of the August 2019 Assessment.
49 The applicant further contends that: the August 2019 Assessment had a statutory basis; the assessment affected the applicant's rights or interests, such that the rules of procedural fairness applied; and she was denied procedural fairness in connection with the August 2019 Assessment. There is no real dispute between the parties that, if the rules of procedural fairness applied, the applicant was not afforded procedural fairness in relation to the August 2019 Assessment (T44, T103).
Applicable principles
50 The relevant principles have been discussed in a series of cases in the High Court of Australia and the Full Court of this Court. The lines of cases comprises: Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 (the Offshore Processing Case); Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 (Plaintiff S10/2011); Plaintiff S4/2014; SZSSJ v Minister for Immigration and Border Protection (2015) 234 FCR 1 (SZSSJ (FFC)); Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (SZSSJ (HC)); and CLM18. The relevant principles may be summarised as follows.
51 First, the power given by s 46A(2) may only be exercised by the Minister personally: s 46A(3). The exercise of the power given by s 46A(2) is constituted by two distinct steps: first, a decision to consider exercising the power to lift the bar; secondly, a decision whether to lift the bar: see the Offshore Processing Case at [70] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Plaintiff S4/2014 at [44] per French CJ, Hayne, Crennan, Kiefel and Keane JJ; see also SZSSJ (HC) at [43], [53] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. In SZSSJ (HC), in the context of ss 48B, 195A and 417 of the Migration Act, but also applicable, in my view, to s 46A, the Court stated at [53]:
… 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.
52 Secondly, where the Minister decides to consider exercising the power to lift the bar, processes undertaken by the Department to assist the Minister's consideration of whether to exercise the power, will have a statutory basis: Offshore Processing Case at [70], [73], [77], [78], [103]; SZSSJ (HC) at [54]. In such circumstances, a protection obligations assessment is subject to the established principles that govern the way in which the assessment is to be conducted, including the rules of procedural fairness (where applicable): Offshore Processing Case at [73]. On the other hand, where the Minister has not made a decision to consider exercising the power to lift the bar, processes undertaken by the Department will not be characterised as statutory, and the principles of procedural fairness will generally not apply: see Plaintiff S10/2011 at [41], [45]-[46], [50] per French CJ and Kiefel J; SZSSJ (HC) at [41], [47], [54]. In SZSSJ (HC), the Court stated at [54]:
… 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.
53 Thirdly, whether the Minister has made a decision to consider exercising the power to lift the bar in a particular case, or in a class of cases, is a question of fact: see SZSSJ at [55]. In the present context, the onus is on the applicant to establish, on the balance of probabilities, that such a decision was made.
54 Fourthly, where a process with a statutory basis affects a person's rights or interests, the rules of procedural fairness will apply to the conduct of the assessment: Offshore Processing Case at [75]; Plaintiff S10/2011 at [64]-[69]; SZSSJ (HC) at [54], [75], [77]; CLM18 at [29]-[30]. A person's rights or interests will be affected where the decision to consider exercising the power to lift the bar, with the consequential need to make inquiries, prolongs the person's detention: Offshore Processing Case at [76]; SZSSJ (HC) at [54], [76], [77]; see also Plaintiff S4/2014 at [27], [39]-[41].
55 Fifthly, because s 46A states that the Minister does not have a duty to consider whether to exercise the power given by the section, mandamus will not issue to compel the Minister to consider or reconsider exercising the power, and there will be no utility in granting certiorari to quash recommendations in an assessment: Offshore Processing Case at [99]-[100]. Nevertheless, it may be appropriate to make a declaration that an assessor failed to observe the requirements of procedural fairness in carrying out an assessment: Offshore Processing Case at [103]; CLM18 at [29]-[30].
Examples of cases where a finding was made
56 As noted above, whether the Minister has made a decision to consider exercising the power to lift the bar is a question of fact. In some cases, there may be direct evidence (eg, in a document) that the Minister has made such a decision. However, in other cases, there may be no direct evidence, and the question arises whether such a decision is to be inferred from the evidence or material before the Court.
57 For example, in the Offshore Processing Case, the Court noted at [37] that on 29 July 2008 the Minister announced that the Government had decided to strengthen and enhance the Refugee Status Assessment (RSA) process, and that this announcement followed an earlier announcement by the Government that asylum claims of future unauthorised boat arrivals would be processed on Christmas Island. Following the announcement of 29 July 2008, the Department developed two procedural manuals (as described in [38] and [39]). The adoption of those procedures, the High Court said at [40], could only be understood as implementing the announcements. Further, if the power to remove offshore entry persons from Australia was not to be used, the only statutory powers that could be engaged to avoid breaching Australia's international obligations were the powers under ss 46A and 195A. The High Court outlined the RSA process and the merits review process at [41]-[49]. Although these processes were described as "non-statutory" in the manuals, the Court noted that the source of the power to carry them out was not identified. Under the RSA and merits review processes, if the conclusion was that the person was not a person to whom Australia had protection obligations, no submission would go to the Minister (at [44], [49]).
58 One of the key issues was: what power was being exercised when a Departmental officer undertook a RSA and then an independent contractor reviewed that assessment (see [52], [61]). The Court stated at [62] that six considerations bore on the issue of power. Of these, the second consideration was that the assessment and review were made in consequence of a ministerial direction. The Court referred at [65] to the need to seek a statutory foundation in order to accommodate the provisions governing detention and its duration, with what was done in relation to the possible exercise of power under ss 46A and 195A. The Court continued at [66]:
In these cases, that foundation is revealed by recognising the significance of the second matter that has been identified: that the inquiries that are made for the purposes of both the RSA and IMR processes are made in consequence of the decision announced in July 2008. There would otherwise appear to be an irreducible tension between the exercise of a statutory power to detain in a way that prolongs detention, because inquiries are being made, and those inquiries having no statutory foundation. This tension does not arise if the decision to establish and implement the RSA and IMR procedures, announced by the Minister, is understood not just as a direction to provide the Minister with advice about whether power under s 46A or s 195A can or should be exercised, but as a decision by the Minister to consider whether to exercise either of those powers in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations.
(Emphasis added.)
59 In this way, the Court inferred that the Minister had made a decision to consider exercising the relevant powers. That factual finding was reiterated at [78], where the Court stated: "The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers."
60 Another example is provided by SZSSJ (FFC). In that case, the Full Court identified at [75] that whether the Minister had made a decision to consider exercising the relevant powers (in that case, ss 48B, 195A and 417) was a factual question. In circumstances where the primary judge had not made a factual finding on this matter, it was necessary for the Full Court to do so. The Full Court set out the relevant evidence at [75] and then noted at [76] that there were two possible characterisations of those facts: either the Minister had decided to consider whether to exercise the relevant powers in relation to SZSSJ and the International Treaties Obligations Assessment (ITOA) was being conducted by the Department to assist him in that process, or the Minister had not decided to consider whether or not to exercise the dispensing powers. On that latter view, it was not clear why the ITOA process was being conducted or on whose instructions, or how the continued immigration detention of persons involved in that process was lawful. The Full Court examined the applicable procedures manual. The Full Court then referred to two contextual matters, one specific and one general. The specific matter was that in that case the Secretary of the Department had written to the 9,258 people affected by the data breach to tell them that their position would be reviewed (at [80]). The Full Court reasoned at [80]-[82]:
80 … Given the magnitude of the event from an administrative perspective, the Secretary's decision, as stated in his letter of 12 March 2014, to have the Department assess any implications for each of those people personally 'as part of its normal processes', the very considerable budgetary expense in conducting 9,258 such reviews, their continuing detention for a period of six months until the making of the decision to use an ITOA process to conduct those reviews, the significance of Australia's international obligations in respect of the 9,258 persons affected by the Data Breach and the ITOA processes which were then instigated, we consider it unlikely that the Minister is not personally aware of the Data Breach and the processes contemplated in the Secretary's 12 March 2014 letter.
81 This, then, is not one of those cases where an ITOA has been commenced under PAM 3 in circumstances of which the Minister is personally ignorant.
82 Granted that the Minister is personally aware of the ITOAs, it seems an unavoidable inference that he has already decided to consider these 9,258 matters under his dispensing powers. If he has not decided to consider the non-refoulement claims, why has he suffered the ITOA process to be carried out on his behalf? Further, given that, in a case such as the present, Australia's international obligations relating to non-refoulement can only be given expression under domestic law through the exercise of the Minster's own personal powers in ss 48B, 195A and 417, we would hesitate to conclude that the Minister has put in place a structure in which persons making claims relating to non-refoulement were not given the opportunity to have the only officer of the Commonwealth who can vindicate those claims under Australian law consider them. It seems to us that such a state of affairs would be a breach by Australia of its non-refoulement obligations.
61 The Full Court also considered a more general consideration at [83]-[85]. The Full Court noted the Minister's argument that the ITOA process was directed to an endpoint in which the Minister was not to be informed of negative ITOA outcomes, with the "hoped for consequence that no refusal decision [was] ever made by him which could render the ITOA process reviewable" (at [83]). The Full Court rejected this analysis, with reference to the model of Ministerial responsibility upon which Ch II of the Constitution rests. The Full Court stated at [85]:
Viewed through that wider lens, it will be seen that, in the circumstances of these appeals, there can be no such thing as an ITOA which has been prepared to assist the Minister in considering whether to lift the bar under his discretionary powers which does not proceed from an exercise of his own authority. The more this must be so because of the impact of the conduct of the ITOAs on the personal liberty of those who continue to be held in immigration detention in order that that process can be completed. If an ITOA is being conducted, it is because lawful instructions have been given that it should be. That state of affairs both implies, but also reveals, a decision by the Minister that the non-refoulement question in SZSSJ's case is to be examined, that is to say, that the second stage identified in M61 has been reached: Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 232 [27]-[29].
62 The Full Court also stated, at [86]:
Indeed, it is difficult to discern how the Minister would be able to remain at the first stage in a non-refoulement case without, first, breaching Australia's international obligations to assess claims of this kind and, secondly, at the very least in an accessorial capacity the imperative command of s 198. He either considers the claims, so that international law is complied with (and the ITOA process is reviewable because he has arrived at the second stage), or the decision is not reviewable (because he has not considered the claim at all), in which case Australia will be in breach of its international legal obligation to assess non-refoulement claims and every officer who detains one of the 9,258 persons affected by the Data Breach does so in contravention of s 198. Unless the Minister is personally willing to swear that, as the only official in the country with the power to consider SZSSJ's non-refoulement claims, he is not considering doing so and that Departmental officials apparently doing so under the ITOA process are doing so without his authority, it is impossible to conclude that he has not arrived at the second stage.
63 Thus the Full Court found, as a fact, that the Minister had made a decision to consider exercising the relevant powers in respect of the applicants for visas affected by the data breach (at [87]). On appeal to the High Court, this finding was not challenged: see SZSSJ (HC) at [33]. (Although the judgment of the Full Court was overturned by the High Court, this related to another part of the judgment.)
64 These cases demonstrate that whether the Minister has made a decision to consider exercising the power to lift the bar may be a matter of inference rather than direct evidence. They also provide examples of modes of reasoning in connection with the drawing of such an inference.
Factual findings
65 I now turn to the facts of the present case. I will first outline the facts in chronological order, including evaluating the evidence where it was challenged during cross-examination, and then consider whether either of the relevant Ministers made a decision to consider exercising the power to lift the bar.
66 I note that some of the documents referred to below have parts redacted on the ground of public interest immunity (PII) or legal professional privilege. Where I refer to officers of the Department, in some cases I will use their first names only.
67 On 5 March 2018, the applicant's family (that is, the applicant's father, the applicant's mother, the applicant's older sister and the applicant) were detained and placed in immigration detention. Prior to this, both the applicant's father's application for a Protection (Subclass 866) visa and the applicant's mother's application for a Safe Haven Enterprise (Subclass 790) visa had been refused.
68 In September 2018, steps were taken by the Department towards the involuntary removal of the applicant's family to Sri Lanka. In this context, and in circumstances where certain new information had arisen, a pre-removal clearance assessment was carried out in relation to the applicant's father. A minute dated 19 September 2018 was prepared by a case officer of the Department (Farrah). Key elements of the minute have been redacted on PII grounds. Farrah's conclusion was that:
Ultimately, I find that there is new information in this case that warrants further assessment and that there is currently a risk that [the applicant's father's] involuntary removal to Sri Lanka may breach Australia's non-refoulement obligations.
Accordingly, I recommend that this case warrants further assessment against Australia's non-refoulement obligations and that this case be referred for consideration under section 48B of the Act.
(Bold emphasis in original.)
This conclusion was agreed with by Lauren Cassidy, Assistant Director, International Obligations and SHP Section in the Department and by Debra Radjenovic, Director, International Obligations & SHP Section.
69 On 20 September 2018, Ms Cassidy sent an email within the Department attaching the minute dated 19 September 2018. After noting her agreement with Farrah's assessment that the applicant's father's involuntary removal from Australia may be in breach of Australia's non-refoulement obligations, Ms Cassidy noted that the assessment had implications for his wife and family "who also can no longer be considered available for removal". Ms Cassidy's email stated in relation to the applicant:
… Lastly, the youngest child born in Australia has never had the … s46A bar lifted and therefore has never had her claims for protection assessed and cannot be considered available for removal.
We are recommending that this family be referred to the Minister under section 48B and 46A to lift the bars so they can lodge a TPV/SHEV application to fully assess these new claims.
(Emphasis added.)
70 In response to that email, Ms Radjenovic sent an email dated 20 September 2018 stating: "I note you will now liaise with Amanda's team to consider taking this case forward under s48B process including bar lift for child" (emphasis added). The reference to the child was evidently a reference to the applicant.
71 On 25 September 2018, Mr Senthuren Mahendren of the Tamil Refugee Council, on behalf of the applicant, sent a letter to the Minister for Home Affairs requesting that the Minister consider exercising the power given by s 46A(2) to lift the bar to allow the applicant to lodge a valid application for a protection visa. Although the letter was addressed to the Minister for Home Affairs, it is common ground that the power given by s 46A(2) could at the relevant times be exercised either by the Minister for Home Affairs or by the Minister for Immigration. Mr Mahendren's letter noted that the applicant's parents both fell within the definition of "unauthorised maritime arrival" and that the applicant was also defined as an "unauthorised maritime arrival". After stating that the applicant was unable to make a valid application for a visa unless the Minister exercised his discretion under s 46A(2), Mr Mahendren referred to the Minister's guidelines for the exercise of the s 46A(2) power (the Minister's Section 46A(2) Guidelines) (discussed below). Mr Mahendren noted that the applicant had not yet had an opportunity to put forward her claims for protection before any process or body. It was submitted that, in these circumstances, the applicant clearly met the criteria in the guidelines. The letter set out the basis of the applicant's protection claims in some detail (the letter runs to five typed pages). Mr Mahendren noted that the applicant's family had put forward their claims for protection and those claims were of relevance to the applicant's need for protection in Australia. Mr Mahendren stated that, in addition, the applicant had claims to put forward that had never been the subject of any determination or assessment in relation to other members of her family. In particular, Mr Mahendren submitted that the applicant had a very strong sur place claim that required careful examination. The nature of that claim was outlined. It is unnecessary for present purposes to set out that claim here.
72 It is convenient to refer at this stage to the Minister's Section 46A(2) Guidelines. The relevant version of the guidelines was reissued by the then Minister for Immigration and Border Protection on 1 October 2017. The guidelines are procedural instructions relating to the exercise of the power given by s 46A(2); in particular, they inform the Department "about when and how to refer a case" to the Minister. Section 5.1.2 explains the power given by s 46A(2) in the following terms:
5.1.2 Minister's public interest power
Under s46A(2) of the Act, if I think it is in the public interest to do so, I have the power to make a written determination to allow a UMA, to whom s46A(1) of the Act applies, to make a valid application for a visa of a specified class. This may be referred to as 'lifting the s46A(1) application bar'. What is and what is not in the public interest is a matter for me to determine. In these guidelines this power is referred to as my public interest power.
…
The public interest may be served by ensuring that a UMA, who has made or wishes to make claims that may engage Australia's protection obligations, is allowed to have those claims assessed through a statutory process against the criteria in s36(2) of the Act. This includes those who had their PPV application converted to an application for a TPV (by operation of regulation 2.08F) which was granted, is due to expire, who may continue to engage Australia's protection obligations.
…
Generally, I will only consider the exercise of my public interest power in cases which are referred by the Department following consideration against these guidelines.
73 Section 5.2 of the guidelines sets out circumstances in which cases should, or should not, be referred to the Minister. The cases that should be referred to the Minister include:
• A UMA has raised plausible protection claims, did not lodge a TPV or SHEV application before the Minister revoked their initial s46A bar lift determination with effect from 1 October 2017, and has objective evidence of compelling and compassionate reasons that were beyond their control for missing the application deadline.
…
• I personally request a UMA's case be referred to me for consideration of the exercise of my public interest power.
74 The guidelines state that if the Department decides that an unauthorised maritime arrival's case does not meet the guidelines, the case should not be referred to the Minister for consideration of the exercise of the public interest power.
75 On 26 November 2018, Mr Mahendren sent an email to the Minister for Home Affairs reiterating the request that the Minister exercise the power given by s 46A(2). The email included some additional information to support the request.
76 On 27 March 2019, Ms Cassidy sent an email to Mr Mahendren in the following terms:
Dear Senthuren Mahendren,
Thank you for your query regarding the progress of your request for ministerial intervention under section 46A(2) of the Migration Act 1958 for [the applicant].
The Department of Home Affairs (the Department) is currently considering the request. The Department will notify you of any outcome once finalised.
Kind regards
Lauren
77 On or about 8 April 2019, a Departmental submission dated 5 April 2019 was provided to the Minister for Immigration. The submission had the subject "Possible Ministerial Intervention under subsection 46A(2) of the Migration Act 1958 in relation to [the applicant] (DOB: [date omitted])" and the document identifier MS19-000943 (the April 2019 Submission). The submission was described as a "second stage submission" on the first page. Ms Stubbs (who was involved in the preparation of the April 2019 Submission) states in her affidavit (and I accept) that: it is common practice for her team to distinguish between "first stage" submissions and "second stage" submissions; a "first stage" submission does not require immediate action if the Minister decides to make a positive decision, whereas a "second stage" submission will require such immediate action; a "second stage" submission does not necessarily imply that a "first stage" submission has been made; and the April 2019 Submission is an example of an occasion when a second stage submission was made without a first stage submission. Ms Stubbs also states (and I accept) that: no one in the Minister's office asked her to prepare the April 2019 Submission; and preparation of the submission was her decision in discussion with her team.
78 The recommendation on the first page of the April 2019 Submission was as follows:
That you:
1. | indicate whether you wish to exercise your non-compellable power under subsection 46A(2) of the Migration Act 1958 to allow the Department of Home Affairs to grant a Bridging E (subclass 050) visa to [the applicant]. | intervene / not intervene |
- If agreed, please sign the section 46A decision documents at Attachment A. | ||
79 The April 2019 Submission related to a bridging visa (rather than a protection visa). It is not suggested that the Minister for Immigration made a decision to consider exercising the power to lift the bar in respect of a bridging visa, or that the April 2019 Submission reflected any such decision. Accordingly, the April 2019 Submission is not centrally relevant for present purposes. Nevertheless, it provides context and background for the subsequent submission in May 2019. In the body of the April 2019 Submission, it was explained that: the applicant's parents and her sister had had the s 46A bar lifted in their cases and were able to apply for a bridging visa; and the applicant and her sister (both minors) had been detained with their parents since 5 March 2018 and the resolution of their case was likely to be protracted. It was further explained that the applicant's mother and her sister had judicial review proceedings on foot in relation to the refusal of their application for a Safe Haven Enterprise (Subclass 790) visa. Other aspects of the applicant's circumstances were described, but it is unnecessary to set these out for present purposes. After referring to these matters, the submission stated that: "As such, the Department of Home Affairs is seeking your Ministerial Intervention power under subsection 46A(2) of the Act to allow [the applicant] to make a valid application for a [bridging visa]. This would allow the Department to consider her case in line with the rest of the family should they lodge an application for a [bridging visa]."
80 The April 2019 Submission also set out certain additional background matters. It was noted that on 25 September 2018, the applicant's agent had made a request for Ministerial intervention under s 46A(2) to allow the applicant to lodge a valid application for a protection visa. It was stated: "The Department has yet to consider this request and will do so once the family's matter in the High Court is determined." This was a reference to an application by the applicant's mother for special leave to appeal to the High Court.
81 The Minister for Immigration did not complete the recommendation page on the April 2019 Submission. On the copy of the submission in evidence, neither option ("intervene / not intervene") has been circled, nor has the page been signed by the Minister in the place provided.
82 Ms Stubbs states in her affidavit (and I accept) that: the Department's document management system records that on 13 June 2019 the submission was returned to the Department for rebadging and updating; that was a common occurrence around that time (due to Ministerial portfolio or title changes after the May 2019 federal election); and, ultimately, her team closed this file without further referral to the Minister for Immigration for consideration.
83 There is no direct evidence as to whether the Minister for Immigration personally received and read the April 2019 Submission. However, I infer that this was the case. I draw this inference in circumstances where: the April 2019 Submission was addressed to the Minister for Immigration; and the Department's document management system records that the submission was provided to the Minister's office on about 8 April 2019. Further, this inference is supported by an email exchange that took place between the Department and the Minister's office on 9 April and 26 April 2019 (Exhibit A17). In an email dated 9 April 2019, from Ms Stubbs to Jarrad Town, the Departmental Liaison Officer in the office of the Minister for Immigration, Ms Stubbs asked whether the Minister's office would be comfortable with the Department advising a person that the Minister was currently considering the case, noting that "the referral of the submission" (presumably a reference to the April 2019 Submission) "is not on the public record as yet". In response, Mr Town sent an email dated 26 April 2019, in which he stated that the response should "use the standard words and NOT mention that the Minister is considering the s46A bar lift submission at the moment". The way this is expressed tends to suggest that the Minister was in fact considering the April 2019 Submission at that time. I note for completeness that in his affidavit, Mr Macdonald stated that he did not ask the Department to prepare the April 2019 Submission, he doesn't remember receiving it, and he doesn't remember discussing it with the Minister for Immigration. However, Mr Macdonald had little or no recollection of the relevant events. Therefore, I do not consider this evidence to contradict the inference that the submission was received and read by the Minister.
84 On 14 May 2019, the High Court of Australia dismissed the applicant's mother's application for special leave to appeal.
85 On 16 May 2019, an email was sent by Carina Ford, who was now acting on behalf of the applicant, to Ms Cassidy requesting an update of the applicant's request that the bar be lifted. The email referred to and attached copies of the previous correspondence on behalf of the applicant dated 25 September 2018 and 26 November 2018. The email also attached a substantial bundle of additional documents in support of the request that the bar be lifted.
86 Also on 16 May 2019, and without any apparent connection with the email from Ms Ford of the same date, Mr Pezzullo sent an email to various people in the Department in relation to the applicant's family's case. The email stated that Mr Pezzullo had asked the Assistant Deputy Secretary ICSG for a "brief on next steps". Mr Pezzullo stated:
This is a high profile case which is proving to be reputationally problematical for the Department, notwithstanding the clear cut legal position. I should like the brief on my desk by Monday morning.
87 On 20 May 2019, Mr Mansfield send an email to Sophie Sharpe, the Chief of Staff to Mr Pezzullo, in relation to Mr Pezzullo's email. Mr Mansfield stated:
A draft submission for [the Minister for Immigration] is just being legally cleared and won't be much longer – I am hoping within the hour. This incorporates both departmental and ABF input. As soon as it has been cleared I will send through the submission (as this is the best way for the Secretary to be appraised of all of the issues with this case). I also spoke with [the Minister for Immigration's] office on Friday to flag that we would provide briefing early this week (following a request from the office that we prepare a brief).
Happy to discuss.
Kind regards
Luke
(Emphasis added.)
88 Later that day, Mr Mansfield provided a draft of the Ministerial submission to Mr Pezzullo (by emailing it to Ms Sharpe).
89 On 21 May 2019, Ms Sharpe sent an email to Mr Mansfield stating:
Thanks Luke,
The Secretary has reviewed the brief and has asked that you let him know what the Minister decides please. You've probably already picked it up but there's a minor typo at the top of page 5 with 'Bridging'.
Regards
Soph
90 Also on 21 May 2019, Mr Macdonald sent an email to Mr Mansfield (with the subject line "Brief on detainee family") as follows:
Hi Luke
We spoke last week about a full brief on the issue of the '[town name omitted] Family'.
Could you please let me know how far off that one is? The Minister would like to reacquaint himself with the matter following the HC decision.
Thanks
Regards
Ross Macdonald
In his affidavit, Mr Macdonald stated that he has no recollection of speaking to the Minister for Immigration about the applicant's family in the week before this email or having spoken to Mr Mansfield the week before. Mr Macdonald stated at [5] of his affidavit that, based on his experience in his role, "the email to Mr Mansfield would reflect what [the Minister for Immigration] asked me to action". Later in his affidavit, Mr Macdonald stated at [11] that "every action I take is at, or consistent with, directions of [the Minister for Immigration]". I accept this evidence. It is apparent from Mr Macdonald's email to Mr Mansfield that the two had spoken the week before and that Mr Macdonald had, on behalf of the Minister, requested a "full brief" on the issue of the applicant's family.
91 Mr Mansfield replied by email on the same day (21 May 2019):
Hi Ross
It's coming to the Minister late today. Just with me for final review and clearance.
Kind regards
Luke
92 Mr Macdonald replied on the same day, thanking Mr Mansfield for his email.
93 On 22 May 2019, a submission to the Minister with the title "Ministerial Intervention Options – [Surname omitted] Family Sri Lanka", and the document identifier MS19-001313 was provided to the office of the Minister for Immigration. The submission was attached to an email from Mr Mansfield's executive assistant to Mr Macdonald sent on 22 May 2019 (at 11.18 am). Although the matter is not free from doubt, it seems likely that the copies of the submission that are included in annexure "DJW3" to Mr Wilden's affidavit are the same as, or very similar to, the version that was provided to the Minister's office on 22 May 2019. I note for completeness that one of these copies follows immediately after an email dated 24 May 2019 (sent at 11.58 am), suggesting that it is the version of the submission provided later, on 24 May 2019. However, at the hearing of the proceeding, it was agreed between the parties (T75-76) that the version of the submission that became Exhibit A19 was the version provided on 24 May 2019. That version, which is discussed below, appears to be a slightly longer document – the portions of the document redacted on PII grounds are slightly longer.
94 On 23 May 2019 (at 8.35 am), Mr Macdonald sent an email to Mr Mansfield in relation to the submission. Mr Macdonald wrote:
Hi Luke
Thanks again for this.
I appreciate the options but was looking at more of a background/current situation/options rather than an MI [i.e. Ministerial intervention] focused brief.
Notwithstanding the issues around non-refoulement, can the brief be updated to include what work has been undertaken to date with respect to travel documents and [PII redaction].
It would be great if that supplemental info could be included today so I can discuss with the Minister ASAP.
Thanks again
R
95 In relation to this email, Mr Macdonald stated in his affidavit:
7. This email reflects a discussion I had with [the Minister for Immigration] about the ministerial submission. I do not remember the specific details of what was said, but the discussion was to the effect that the request for information was not for a ministerial intervention options submission. That is, the request was not for options to allow the Minister to exercise a power to permit the applicant's family to obtain visas. Rather, the request was purely for information to reacquaint himself with the detail of the applicant's family's case.
8. As with Annexure RM2, my email to Mr Mansfield would have reflected directions by [the Minister for Immigration] to me.
96 I do not accept the evidence in [7] of Mr Macdonald's affidavit that "the request was not for options to allow the Minister to exercise a power to permit the applicant's family to obtain visas" and that it was "purely for information [for the Minister] to reacquaint himself with the detail of the applicant's family's case". First, it was plain from Mr Macdonald's evidence during cross-examination that he has little or no recollection of the relevant events. Secondly, this evidence goes beyond the terms of Mr Macdonald's email dated 23 May 2019, which referred to seeking "more of a background/current situation/options rather than an MI focused brief". That sentence refers to seeking a brief covering, among other things, "options". Thirdly, the subsequent version of the submission (discussed below) contained recommendations that the Minister exercise the powers given by ss 46A and 48B to lift the relevant bars in relation to the applicant's family. It is unlikely that the submission would have contained those recommendations if the request was not for options to allow the Minister to exercise the powers given by ss 46A and 48B and was purely for information.
97 Mr Mansfield replied to Mr Macdonald at 8.59 am on 23 May 2019. Mr Mansfield wrote:
Ross – we will work on additional advice during the course of the morning. The short version is that [PII redaction].
The brief currently outlines why we are yet to pursue travel documents again for the family. [PII redaction].
Kind regards
Luke Mansfield
98 At 9.41 am on 23 May 2019, Mr Macdonald replied:
That's very helpful, Luke - [PII redaction]. If that part could be included within the brief I think it would be helpful to the Minister.
Understand the complexities so no rush.
Thanks again
Regards
Ross Macdonald
99 Mr Mansfield responded by email at 5.38 pm on 23 May 2019:
Thanks Ross – a revised briefing will come up in the morning. Just in legal clearance tonight regarding the [PII redaction].
Kind regards
Luke
100 At 5.48 pm on 23 May 2019, Mr Mansfield sent an email to Ms Sharpe (Mr Pezzullo's Chief of Staff) as follows:
Sophie – just to update you on this one:
After the submission regarding the [surname omitted] family ([town name omitted]) was provided to the Minister's office, the office contacted me and requested some additional information be included [PII redaction] and detail on travel document issuance, be covered in the brief.
We have pulled and updated the brief to reflect that detail and a revised version will go up tomorrow. Both FAS International and General-Counsel have been consulted in relation to those changes. Once the brief goes back up, I will suggest to the office that I take the office and the Minister through the issues verbally given the complexity and sensitivities.
The only other development is that the legal representatives for the family have been contacting the department (our legal area) multiple times seeking assurances that we will not remove the family.
Kind regards
Luke
(Emphasis added.)
There is no direct evidence as to whether or not Mr Mansfield met with the Minister and his office to take them through the issues, as flagged in this email. Mr Macdonald said during cross-examination that he did not know whether Mr Mansfield ever had the in-person meeting.
101 On 24 May 2019, Georgie in the Department sent an email to Mr Town (the Departmental Liaison Officer in the Minister's office) attaching a revised version of the submission. The covering email read:
Hi Jarrad,
As discussed, please find attached an updated version of MS19-001313 and attachments as requested by Ross Macdonald. This version has been cleared by FAS, Refugee, Citizenship and Multicultural Programs Division, Luke Mansfield. Grateful if you can provide a hard copy of this package to Ross.
Ministerial Support will load the updated documents into PDMS
Please call if you need anything further.
Thanks Jarrad.
Kind regards
Georgie
(Emphasis added.)
102 The version of the submission provided to the Minister's office on 24 May 2019 is referred to in these reasons as the May 2019 Submission. It is common ground that Exhibit A19 is the version of the submission provided to the Minister's office on 24 May 2019 (T75-76). The submission had the subject "Ministerial intervention options – [Surname omitted] family – Sri Lanka" and the document identifier MS19-001313. The submission contained recommendations that the Minister for Immigration exercise the power given by s 46A(2) in respect of all members of the applicant's family and the power in s 48B in respect of the applicant's father, mother and sister. The recommendations were as follows:
Recommendations
That you:
AND
5. | agree to exercise your non-compellable power, under section 48B of the Act, to lift the section 48A bar and allow [the applicant's father], [the applicant's mother] and [the applicant's sister] to apply for a TPV or a SHEV; | agreed / not agreed | |
i.if you decide to lift the bar and allow for the application of a TPV or SHEV please sign the decision instrument at Attachment E and the Statement to Parliament at Attachment F | signed / not signed | ||
6. | agree to consider exercising your non-compellable power under section 195A of the Act to grant [the applicant's father], [the applicant's mother], [the applicant's sister] and [the applicant] a substantive visa to remain in Australia. | agreed / not agreed | |
i.if you agree the Department will prepare a further submission for your consideration with visa options. | |||
103 The May 2019 Submission is a substantial document comprising 62 numbered paragraphs over 11 pages, together with 7 attachments. It states on the last page that the submission was cleared by Mr Mansfield.
104 The May 2019 Submission commenced with a section headed "Key Issues". This section included the following:
Key Issues
1. As requested, this submission outlines possible options for ministerial intervention for [the applicant's father] (born [details omitted]), [the applicant's mother] (born [details omitted]), [the applicant's sister] (born [details omitted]) and [the applicant] (born [details omitted]) (the [surname omitted] family).
2. The [surname omitted] family are finally determined unauthorised maritime arrivals (UMAs) from Sri Lanka and were detained in March 2018, for the purpose of their removal from Australia, remaining in held detention since that time. Their removal has been delayed through court action and injunctions (as discussed below). Other information has come to light that would prevent removal in the short term (see paragraph 9 and 23-30). The [surname omitted] family's ongoing detention has received significant coverage in the media, and attention from external scrutiny bodies.
3. The [surname omitted] family are prevented from lodging a valid protection visa application by section 46A(1) of the Act. This is because they are UMAs and there is currently no bar lift in place for them.
4. All members of the [surname omitted] family, except for [the applicant] have had the s46A(1) bar lifted to allow for the grant of a BVE. [The applicant] has not had a bar lift for a BVE under section 46A(2) of the Act and the Department is unable to grant her a visa. Lifting the section 46A bar for BVEs would give [the applicant] the same status as her family.
5. The Department has provided the option for you to consider intervening under section 46A(2) of the Act for [the applicant], lifting the statutory bar to allow an application for a BVE. Please note this option is currently with your office in a separate submission (MS19-000943). The Department notes that you may wish to consider this option, pending your decision under your other Ministerial Intervention powers, discussed below.
6. [The applicant's father], [the applicant's mother], and [the applicant's sister] are also prevented by section 48A of the Act from lodging a valid protection visa application whilst they remain within the migration zone as they have previously had a protection visa application refused.
7. If you decide to intervene to allow the [surname omitted] family to lodge a valid protection visa application you must lift both the section 46A(1) and 48A application bar.
8. You have non-compellable and non-delegable public interest powers under the Act to intervene in this case to either allow the family to lodge a protection visa application or grant them a visa if you think it is in the public interest to do so.
…
12. If you decide to lift the relevant application bars to allow the family to lodge a valid protection visa application, [PII redaction] the Department will assess whether the [surname omitted] family engages Australia's protection obligations and whether they meet health, character, identity and security requirements. If the [surname omitted] family are found not to engage Australia's protection obligations, their application will be refused and they will be liable for removal, if they do not voluntarily make arrangements to depart Australia. The family would have access to merits and judicial review for a refusal decision.
13. If you decide to lift the relevant application bars please sign the determinations and the Statements to Parliament at Attachments A to F.
(Emphasis added.)
105 The next section of the May 2019 Submission was headed "Background". That section included the following at [26]:
26. On 25 September 2018, the registered migration agent for the [surname omitted] family, lodged a request for Ministerial intervention under section 46A of the Act for [the applicant]. In the request, the agent states that [the applicant] has never had her claims for protection assessed and that, due to the media interest in the [surname omitted] family's case, there are now sur place claims that require assessment. The Department has not finalised this request to date as it was awaiting the outcome of the High Court matter to finalise the [surname omitted] family as a whole.
106 It was noted at [41] that the applicant's father had "unresolved claims requiring further assessment against Australia's protection obligations prior to taking further steps towards potential removal". It was stated at [42]:
42. It is Departmental and ABF policy not to split family units through removal. Further, if [the applicant's father] is subsequently found to engage Australia's non-refoulement obligations, the prior removal of [the applicant's father's] wife and children to Sri Lanka may result in protracted and possibly permanent separation of family members and therefore a possible breach of Australia's obligations under Articles 17 and 23 of the International Covenant on Civil and Political Rights. It may also give rise to a separate set of non-refoulement considerations in relation to [the applicant's mother] as her removal, separate from her husband, would make her a single female head of household Tamil in Sri Lanka, which is a claimset that requires careful, individualised consideration.
107 The next section, headed "Other issues considered", has been redacted on PII grounds.
108 The submission discussed the Minister's power under s 48B at [49]-[52]. Then, at [53]-[56], the submission discussed the Minister's power under s 46A:
Your power under section 46A of the Migration Act 1958
53. As [the applicant's father] and [the applicant's mother] entered Australia as UMAs and [the applicant's sister] and [the applicant] are also deemed to be UMAs as a result of section 5AA(1A), they are barred by section 46A from making a valid onshore visa application. It is open to you to consider lifting the section 46A bar and allow them to lodge a TPV or SHEV application and a BVE application for [the applicant].
54. In exercising your power, you must specify the class of visa for which the non-citizen may apply. The Department recommends that you intervene to lift the bar for the Temporary Protection (Class XD) visa and the Safe Haven Enterprise (Class XE) visa for the whole [surname omitted] family and a Bridging (General) (Class WE) visa for [the applicant].
55. Schedule 1 of the Migration Regulations 1994 (the Regulations) will prevent UMAs from lodging both an application for a SHEV and an application for a TPV. UMAs will need to choose one visa for which to apply. Whichever application is lodged first will be valid and any subsequent application will be invalid. If an UMA was to attempt to lodge a TPV application and a SHEV application at the same time, the SHEV application will be valid and the TPV application will be invalid, in accordance with Items 1403(3)(f) and 1404(3)(f) in Schedule 1 to the Regulations.
56. Should you agree to lift the bar to allow the [surname omitted] family to lodge a valid application, and enable the Department to commence processing their protection claims, the [surname omitted] family will be invited to choose to apply for either a TPV or SHEV.
109 The Minister for Immigration did not complete the recommendations pages on the May 2019 Submission. On the copy of the submission in evidence, none of the options have been circled, and the second page of the submission has not been signed by the Minister in the place provided.
110 The evidence includes the Department's document management system record for the May 2019 Submission. This indicates that, on 29 May 2019, the submission was returned to Department to be finalised as "NFA" (No Further Action) "at request of senior adviser". In his affidavit, Mr Macdonald referred to this record and stated at [11]:
I do not recall reviewing the revised copy of MS19-001313 or discussing it with the Minister. I would be the senior adviser referred to because the only other senior adviser in the office was not working this file. I do not remember asking for it to be marked as NFA or discussing the submission with the Minister. But every action I take is at, or consistent with, directions of [the Minister for Immigration]. I would not have marked this submission as requiring NFA unless [the Minister for Immigration] had indicated that that is what he wanted.
111 Although Mr Macdonald stated in that paragraph that he did not remember reviewing the revised version of the submission or discussing it with the Minister, I infer that the Minister received and read the May 2019 Submission. The submission was prepared at his request (a request conveyed by Mr Macdonald), provided to the Minister's office and addressed to the Minister.
112 On 17 and 18 July 2019, there was an exchange of emails between the offices of the Minister for Home Affairs and the Minister for Immigration, concerning which the Minister would be signing correspondence (e.g. from constituents) in relation to the applicant's family. I do not consider anything to turn on this email exchange.
113 On 23 July 2019, Ms Sharpe sent an email to Ms Golightly, which was copied to a number of people including Mr Mansfield. The subject line on the email was "[surname omitted] family (Sri Lankan, [town name omitted] community supporting)". The email stated:
Hi Malisa,
As discussed last week, [the Minister for Home Affairs] is likely to raise the [town name omitted] family at his catch up with the Secretary and Commissioner this week. The Secretary's catch up is scheduled for 9am tomorrow [ie. 24 July 2019] so it would be great if we could get a few points (by email is fine) on where the case is at by COB today please.
Regards
Soph
114 Ms Golightly responded by email on the same day:
Thanks Sophie – Luke [Mansfield], David [Wilden] and Kaylene have been working hard on this. We will get the talking points to you today as requested.
Luke/David – in consultation with Kaylene please prepare the talking points as requested. We should cover what the current issues are re removal, what action we have taken to address these barriers and the current status. Please coordinate through Luke.
Thanks
Malisa
115 Shortly afterwards, on the same day, Mr Mansfield sent an email stating:
Malisa, Sophie
The TPs [i.e. talking points] are well in train. We are just waiting on some advice in relation to the recovery period for a medical procedure one of the children is scheduled to have later this week.
[PII redaction]
We will get these to you this afternoon.
Kind regards
Luke Mansfield
116 At 7.38 pm on 23 July 2019, Mr Mansfield sent an email to Ms Sharpe attaching "the meeting brief with some talking points to support the Secretary's engagement with [the Minister for Home Affairs] tomorrow".
117 It appears from the above emails that a meeting between the Minister for Home Affairs and Mr Pezzullo was scheduled for 24 July 2019. It may be inferred, in the absence of any evidence to the contrary, that the meeting took place.
118 The evidence includes a document dated 23 July 2019 headed "Meeting Brief", evidently prepared for Mr Pezzullo in anticipation of a meeting with the Minister for Home Affairs (the July 2019 Meeting Brief). This appears to be the meeting brief attached to Mr Mansfield's email of 23 July 2019 at 7.38 pm. The document is solely directed to issues concerning the applicant's family. It stated:
Key issues
[Surname omitted] family
As all immigration and court matters have been finalised the [surname omitted] family are now available for removal consideration. As part of standard pre-removal processes the Department is now considering Australia's international obligations.
There have been several attempts to remove the family which have been [met] with court injunctions and a groundswell of community support. To facilitate removal of the family and minimise the risk of further injunction [PII redaction]. The Department is unable to undertake removal action without this matter being addressed.
The [PII redaction]. We anticipate that this advice will address any final barriers to removal of the family.
[The applicant] has a number of non-primary health issues, including dental care, which are being managed by the Royal Children's Hospital, Melbourne. [The applicant] has severe dental decay which will require rectification by surgery, with general anaesthetic. [The applicant] is scheduled for surgery on 25 July 2019. [The applicant's] medical condition has received significant media attention. She will be unable to be removed until she is recovered from surgery which is expected to take 1-2 weeks but her recovery will be closely monitored. All members of the family will need to be assessed as fit to travel prior to removal.
Once [PII redaction] [the applicant] is fit to travel, the Australian Border Force will apply for travel documents from the Sri Lankan High Commission. This would usually take up to three weeks. [PII redaction].
Talking points (you may wish to raise):
[PII redaction]
• [The applicant] is scheduled for dental surgery on 25 July 2019. [The applicant's] medical condition has received significant media attention. She will be unable to be removed until she is recovered from surgery which is expected to take 1-2 weeks but her recovery will be closely monitored. All members of the family will need to be assessed as fit to travel prior to removal.
Background
Between January and February 2018, the family became unlawful non-citizens following the expiration of their respective BVEs. As unlawful non-citizens, the family were subject to immigration detention and removal from Australia. On 5 March 2018 the family were detained and have remained in immigration detention since.
Attachments
A. Media Talking Points and detailed client background
B. Chronology of recent engagement to facilitate removal from Australia
119 The evidence also includes a document headed "Talking Points" dated 15 May 2019, but including text that appear to have been added on 28 June 2019 (the first page includes points "as at 28 June 2019"). The last page also includes points added on 28 June 2019. It is unclear if this document, or a version of it, was attached to the July 2019 Meeting Brief. In any event, the document does not take matters any further than the July 2019 Meeting Brief.
120 There is no direct evidence as to the meeting between the Minister for Home Affairs and Mr Pezzullo on 24 July 2019. In the absence of any evidence to the contrary, it may be inferred that they discussed, at least, the matters set out in the July 2019 Meeting Brief.
121 On 25 July 2019, Mr Mansfield sent an email to Sally Pfieffer, Acting First Assistant Secretary, Refugee, Humanitarian and Settlement Division, with the subject line containing the applicant's father's name, as follows:
[PII redaction]
I would like to be in a position to update the Minister's office on this matter tomorrow.
Sally – I know you mentioned this has been referred to the pre removal clearance team.
Happy to discuss
Kind regards
Luke
The email indicates that the office of one of the relevant Ministers continued to be involved in the applicant's family's case at this time and that the family had been referred to the pre-removal clearance team in the Department.
122 On 29 July 2019, a pre-removal clearance assessment was requested in relation to the applicant's father.
123 On 2 August 2019, Farrah, a case officer in the Department, completed the pre-removal clearance assessment in relation to the applicant's father. The evidence includes a minute prepared by Farrah. The minute referred to the previous pre-removal clearance assessment, which had recommended that, in light of certain new information, the applicant's father's case warranted further assessment against Australia's non-refoulement obligations and that it be referred for consideration under s 48B. The minute then stated: "On 29 May 2019, the referral was finalised at the request of the Minister's office as not requiring further action."
124 The minute then dealt with the current pre-removal clearance assessment. This occupied about two pages of the minute, much of which has been redacted on PII grounds in the copy in evidence. The conclusion of the assessor (Farrah) was that she was satisfied that the applicant's father's removal to Sri Lanka did not raise concerns relating to Australia's non-refoulement obligations and that the applicant's father did not warrant referral for any further Departmental protection assessment. Ms Cassidy and Ms Radjenovic were in agreement with the conclusions.
125 On 21 August 2019, the August 2019 Assessment was completed. This was an assessment of the applicant's protection claims, carried out by Ms Cassidy. Her conclusions were recorded in a minute headed "Request for Ministerial intervention for consideration of additional claims or information following a protection obligations determination" and dated 21 August 2019 (the August 2019 Minute). The minute comprises 12 pages. At the commencement of the minute, the applicant's immigration history, and the immigration history of her family, were set out. This included an item dated 21 May 2019: "Section 48B request finalised at the request of the Minister's office as not requiring further action". This appears to be reference to the finalisation of the May 2019 Submission, but the date of the item seems to be in error; the Department's document management system indicates that the May 2019 Submission was returned to be finalised NFA on 29 May 2019.
126 The next section was headed "Findings of the Refugee Review Tribunal" and summarised the merits review proceeding commenced by the applicant's father. The next section was headed "Ministerial Intervention Requests". This related to requests by the applicant's father. There followed a section headed "Pre Removal Clearance", parts of which have been redacted on PII grounds. This section made reference to, and relied on, the conclusions in respect of the applicant's father in the minute dated 2 August 2019.
127 The next section was headed "Ministerial Intervention Request" and dealt with the applicant's request for Ministerial intervention under s 46A. This section summarised the correspondence from Mr Mahendren and Ms Ford on the applicant's behalf. The final section was headed "Assessment" and was structured under the following two headings:
(a) Does the request contain new claims or new information that has not previously been assessed?
(b) Is the new information likely to result in a finding that Australia's protection obligations are engaged?
128 The assessor (Ms Cassidy) found that, given that the applicant's father had been found to not be at risk of serious or significant harm upon return to Sri Lanka, the applicant would also not be at risk of harm on return. The assessor referred to the Minister's Section 46A(2) Guidelines in the course of the minute. For example, the assessor stated:
[The applicant's] claims under CRC [i.e. the Convention on the Rights of the Child] [are] not being considered in this assessment as Australia's obligations under CRC do not give rise to non-refoulement obligations and therefore, [do] not meet a guideline for referral to the Minister.
129 Under the heading "Assessment outcome", the assessor stated:
For the reasons above, I am not satisfied that the claims raised in this request are likely to engage Australia's protection obligations. Therefore, this request does not meet the Minister's guidelines. The request should therefore not be referred to the Minister for consideration.
130 I note that the August 2019 Minute does not refer to any personal procedural decision having been made by either of the relevant Ministers.
131 On 21 August 2019, Ms Cassidy sent a letter to the applicant (with a copy to Ms Ford) in relation to the applicant's request for Ministerial intervention. The letter included the following:
This request has been assessed against the Minister's guidelines on ministerial power (s46A) which describe the types of cases that should be referred to the Minister. The Minister has indicated that requests that do not meet the guidelines should not be referred.
The Department has assessed that this request does not meet the guidelines for referral to the Minister.
The Department has, therefore, finalised this request without referral.
132 Ms Ford gives evidence in her affidavit dated 13 September 2019 (and I accept) that the applicant was not notified that the August 2019 Assessment was being conducted and was not invited to comment in relation to any aspect of the assessment.
133 On 29 August 2019, steps were taken to remove the applicant's family (including the applicant) from Australia. However, an injunction was granted by a judge of the Federal Circuit Court of Australia late that evening, preventing the removal of the applicant until midday the following day.
134 It is convenient, at this point, to refer to Mr Copeman's evidence, which relates to the detention of the applicant's family up to 29 August 2019. In Mr Copeman's affidavit, he refers to the considerations that are relevant to determining if removal of an unlawful non-citizen is reasonably practicable. He states (and I accept) that: these considerations can include the physical and mental health of the person and the ability of the receiving country to receive the person; the Department has established a number of compulsory policy assessments that are to be carried out before an unlawful non-citizen may be removed; the key tool is referred to as the Removal Availability Assessment; this assessment prompts the assessing officer to consider both legislative and policy issues related to removal through a series of questions, covering:
(a) identity, immigration status at the time of removal, nationality and right of entry into the country of removal;
(b) unfinalised visa applications, merits review, judicial review or requests for Ministerial intervention;
(c) any unresolved substantial claims, complaints or investigations by third parties or need for pre-removal clearances; and
(d) fitness to travel and consideration of any special return needs.
135 Mr Copeman also refers to his affidavit to the process of considering or attempting removal of the applicant's family (including the applicant). In 2018, Mr Copeman was informed by Bart England (who was, at the time, in the role of Superintendent, Removal Operations) that the family should not be split and should be maintained as a family unit. Mr Copeman states (and I accept) that maintaining the family unit is consistent with the Department's procedural instructions relating to removal from Australia. In Mr Copeman's affidavit he refers to receiving oral updates in relation to the applicant and her family "due to the high-profile nature of the applicant's case in light of the significant media interest and high level senior interest in the Department".
136 Mr Copeman states in his affidavit that, after the legal proceedings in relation to the applicant's family were finalised on 14 May 2019, it was not reasonably practicable to remove the applicant on the basis that a pre-removal clearance had not been provided by the Department's International Obligations and SHP Section in relation to the applicant's father and removing the applicant would have had the effect of splitting the family. Mr Copeman states in his affidavit that: on 2 August 2019 he was advised that the requisite pre-removal clearance in relation to the applicant's father had been finalised; and he then took steps to remove the applicant and her family, as set out in [12] of his affidavit. Mr Copeman states in [13] of his affidavit that he did not consider it reasonably practicable to remove the applicant and her family before those steps were undertaken, due to the applicant's family's ongoing legal proceedings and the pre-removal clearance being undertaken for the applicant's father, having regard to the best interests of the applicant in not splitting her family. I accept that those statements accurately reflect Mr Copeman's reasons for not seeking to remove the applicant in the period up to 29 August 2019.
137 On 30 August 2019, additional proceedings were commenced on behalf of the applicant, and an interim injunction was granted preventing any removal action in relation to the applicant until 4.00 pm on 4 September 2019.
138 On or about 3 September 2019, the September 2019 Submission was provided to the Minister for Immigration. The submission had the document identifier MS19-002736. The submission, which was cleared by Ms Pfieffer, contained the following recommendations:
Recommendations
That you:
1. | note the significant media and community interest surrounding the [surname omitted] family, and in particular the youngest child, [name omitted] (born [details omitted]), on whose behalf a request for you to exercise power under section 46A(2) of the Migration Act 1958 (Cth) (the Act) has been made; and | noted / please discuss | |
2. | indicate whether you wish to consider exercising your non-compellable power under section 46A(2) of the Act to lift the application bar in section 46A(1) and allow [the applicant] (born [details omitted]) to apply for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV); | consider / not consider | |
i. |
| ||
139 The Minister for Immigration circled "noted" in relation to the first recommendation, "not consider" in relation to the second recommendation, and signed and dated the first page of the submission (with the date 3 September 2019).
140 The September 2019 Submission commenced with a section headed "Key Issues". This set out various background matters, including the attempt to remove the applicant's family on 29 August 2019 and the subsequent proceedings. The submission stated at [7]:
The Department has considered [the applicant's] protection claims as part of a section 46A(2) guidelines assessment. The assessment concluded that the claims raised are unlikely to engage Australia's non-refoulement obligations.
141 The September 2019 Submission then set out certain background matters. Under the heading "Consideration of whether to consider intervening", the submission referred to the August 2019 Minute, and set out the substance of the assessment contained in that document. It was then stated that, in preparing the submission (i.e. the September 2019 Submission), the Departmental officer had revisited the assessments in the August 2019 Minute and that she agreed with them. Under the heading "Your power under section 46A of the Migration Act 1958", the submission adopted a two-stage approach to the s 46A(2) power, stating at [23]:
It is open to you to consider lifting the application bar in section 46A of the Act to allow [the applicant] to lodge a TPV or SHEV application. After deciding to consider exercising this power, you may exercise it if you consider it to be in the public interest to do so.
(Emphasis added.)
142 Under the heading "Matters that you may wish to consider", the submission stated (among other things) at [27]:
Matters which you may consider to be relevant to deciding whether you are inclined to consider exercising the power in section 46A(2) include the following:
• In the current Federal Court proceedings, [the applicant] challenges the departmental officer's decision not to refer [the applicant's] request under section 46A(2) to you for your consideration on the basis that her parents were referred for consideration of the public interest power under section 46A(2) and she is a member of their family unit. The Department has now determined to refer this matter to you for you to consider whether you wish to consider exercising your power.
• In [the applicant's] request, she claims that she has protection claims that have not yet been considered by any process or body. You should be aware that if you decide not to consider exercising power under section 46A(2) to lift the application bar, then in the ordinary course it would be expected that [the applicant] would be removed from Australia without any statutory process or body having considered her claims.
• [The applicant's] claims have been considered by officers of the Department. The assessment of those officers is summarised above. You may consider those assessments, the possibility that they are wrong and the strength of [the applicant's] claims.
(Emphasis added.)
143 On 4 September 2019, the interim injunction was extended to enable a hearing to take place of the applicant's application for interlocutory relief. On 18 September 2019, the applicant's application for interlocutory relief was heard. On 19 September 2019, a judge of this Court granted that application: XAD by her Litigation Guardian XAE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1550.
144 The applicant (and her family) remain in immigration detention.
145 I now address the question whether either Minister (or both) made a decision to consider exercising the power to lift the bar in respect of the applicant. As noted earlier, the onus is on the applicant to establish, on the balance of probabilities, that such a decision was made. It will be convenient to consider, first, the applicant's contention in relation to the Minister for Home Affairs and, secondly, the contention relating to the Minister for Immigration.
146 The applicant contends that the Minister for Home Affairs made a decision on or about 23 July 2019 to consider exercising the power to lift the bar in respect of the applicant. As noted above, the applicant submits that this is to be inferred from the circumstance of a meeting between the Minister for Home Affairs and Mr Pezzullo in or around late July 2019, the meeting brief prepared by officers of the Department for Mr Pezzullo for the purposes of that meeting, and the circumstance of the conduct of the August 2019 Assessment. In my view, these matter do not support an inference that the Minister for Home Affairs made such a decision. I accept that a meeting between the Minister for Home Affairs and Mr Pezzullo took place on 24 July 2019 and that they discussed the matters set out in the July 2019 Meeting Brief (see [117]-[120] above). However, this does not establish (whether on its own or together with other facts and matters) that the Minister for Home Affairs made a decision to consider exercising the power to lift the bar. The main point relied on by the applicant was the statement in the July 2019 Meeting Brief that "[a]s part of standard pre-removal processes the Department is now considering Australia's international obligations". However, this states that the Department "is now considering" such matters, that is, independently of any decision to be made by the Minister for Home Affairs. Further, the meeting brief refers to an assessment as part of "standard pre-removal processes" rather than in connection with a decision to consider exercising the power to lift the bar. The fact that the August 2019 Assessment was carried out is insufficient, in and of itself, to support an inference that the Minister for Home Affairs made a decision to consider exercising the power to lift the bar. For these reasons, I reject the applicant's contention that the Minister for Home Affairs decided to consider exercising the power to lift the bar.
147 I now turn to the applicant's contention that the Minister for Immigration made a decision in or before May 2019 to consider exercising the power to lift the bar in respect of the applicant. In my view, for the reasons set out below, it is to be inferred that, in the days after 14 May 2019, the Minister for Immigration requested the Department to prepare a full brief on the applicant's family, including the option that the Minister exercise his powers to lift the applicable bars to enable the applicant's family to apply for protection visas. Thus, the Minister made a decision to consider exercising the power in s 46A(2) to enable the applicant to apply for a protection visa.
148 The significance of 14 May 2019 is that, on that day the High Court dismissed the applicant's mother's application for special leave to appeal. Although matters concerning the applicant had been under consideration by the Department in the period between September 2018 and 14 May 2019 (as indicated by the letter to the applicant's representative dated 27 March 2019 and the April 2019 Submission), the Department had not, as at 14 May 2019, conducted any substantive assessment of the applicant's protection claims.
149 Further, as at 14 May 2019, no further assessment had been carried out in respect of the new information relating to the applicant's father. In September 2018, a Departmental officer had found that new information relating to the applicant's father warranted further assessment against Australia's non-refoulement obligations, and recommended that the case be referred to the Minister for consideration under s 48B of the Migration Act. Ms Cassidy had concluded that this had implications for the other members of the family, who could "no longer be considered available for removal", and recommended that the applicant's family be referred to the Minister for Immigration under both s 46A and s 48B of the Act. However, there is no evidence to suggest that, as at 14 May 2019, the matter had been referred to the Minister.
150 In the days after 14 May 2019, the applicant's senior adviser dealing with the applicant's family, Mr Macdonald, spoke with Mr Mansfield and requested him to prepare a "full brief" on the applicant's family. The evidence establishes that such a conversation took place, despite Mr Macdonald's lack of recollection of the conversation. Mr Mansfield's email to Ms Sharpe dated 20 May 2019 stated that a submission was being prepared "following a request from the [Minister's] office that we prepare a brief" (see [87] above). Mr Macdonald's email to Mr Mansfield dated 21 May 2019 stated that "[w]e spoke last week about a full brief on the issue of" the applicant's family (see [90] above).
151 It is to be inferred that, in requesting the preparation of a full brief on the issue of the applicant's family, Mr Macdonald was acting on the instructions of the Minister for Immigration. Mr Macdonald's affidavit evidence is that the email dated 21 May 2019 "would reflect what [the Minister for Immigration] asked me to action". Mr Macdonald also gives evidence in his affidavit that "every action I take is at, or consistent with, directions of [the Minister for Immigration]". There is no evidence to suggest that, in requesting the preparation of a full brief, Mr Macdonald was not acting on the Minister's instructions.
152 Further, in all of the circumstances, it is to be inferred that the Minister for Immigration requested (and Mr Macdonald on the Minister's behalf conveyed) that the full brief include the option that the Minister exercise his powers to lift the applicable bars to enable the applicant's family to apply for protection visas. In my view, this inference arises from the following facts and matters. First, the submission that Mr Mansfield prepared – both the 22 May 2019 version and the 24 May 2019 version – contained recommendations that the Minister exercise the powers to lift the applicable bars to enable the applicant's family to apply for protection visas (see [102] above). It is improbable that the submission would have contained these recommendations if the Minister (through Mr Macdonald) had not requested that the submission include the option that the Minister exercise his powers to lift the applicable bars to enable the applicant's family to apply for protection visas. In other words, I consider it likely that the submission was responsive to the request that had been made by the Minister (through Mr Macdonald). Further, not only did the submission contain recommendations that the Minister exercise the powers to lift the applicable bars, it contained reasons for that course, and attached the documents that would need to be signed if the Minister decided to exercise the relevant powers. The submission was a detailed and carefully prepared document, providing all necessary materials should the Minister decide to exercise the powers to lift the applicable bars. This level of detail and attention to the exercise of the relevant powers, suggests that the Minister requested that the full brief include this option. Moreover, the May 2019 Submission went further, and included recommendations that the Minister agree to consider exercising his non-compellable power under s 195A of the Migration Act to grant each of the members of the applicant's family a substantive visa to remain in Australia.
153 Secondly, in his email dated 23 May 2019, Mr Macdonald stated that he appreciated the options, but was looking at more of a "background/current situation/options" brief rather than a Ministerial intervention focused brief (see [94] above). This perhaps suggests that, in the period between the initial request for a full brief and the date of this email, the Minister's interest in exercising the powers to lift the applicable bars had waned. In any event, the email confirms that what had been requested by Mr Macdonald on behalf of the Minister was a brief covering "background/current situation/options". To the extent that Mr Macdonald gave evidence in his affidavit that "the request was not for options to allow the Minister to exercise a power to permit the applicant's family to obtain visas" and that it was "purely for information [for the Minister] to reacquaint himself with the detail of the applicant's family's case", for the reasons given at [96] above, I do not accept that evidence.
154 Thirdly, as discussed above, as at 14 May 2019, the Department had not conducted any substantive assessment of the applicant's protection claims or any further assessment of the new information relating to the applicant's father. Thus, assessments were needed in respect of both the applicant's protection claims and the new information pertaining to the applicant's father. In this context, and assuming that this state of affairs was conveyed to the Minister, it is unsurprising that he would request that the full brief include the option that he exercise the powers to lift the applicable bars to enable the applicant's family to apply for protection visas. This would enable the assessments to take place within the framework of the usual processes in the Migration Act. Given the high profile of the applicant's family (a matter referred to repeatedly in the evidence), it is likely that the Minister was made aware of the state of affairs referred to above. It is also likely that, in view of the considerations discussed in this paragraph, he requested that the full brief include the option that he exercise the powers to lift the applicable bars to enable the applicant's family to apply for protection visas.
155 While the above matters are sufficient, in my view, to infer that the Minister requested that the full brief include the option that he exercise the powers to lift the applicable bars, I draw this inference with greater confidence due to the absence of any contrary evidence from Mr Mansfield, the person with the carriage of the preparation of the May 2019 Submission. An affidavit of Mr Mansfield was filed in connection with the applicant's application for interlocutory relief. That affidavit did not refer to the May 2019 Submission, perhaps because it was prepared in the context of the application for interlocutory relief and the issues that were at that stage being advanced on behalf of the applicant. However, by the time of the final hearing, it was apparent from the applicant's outline of submissions that she was advancing the proposition that the Minister for Immigration made a decision to consider exercising the power to lift the bar in respect of the applicant and was relying on the May 2019 Submission (a copy of which had been provided to the applicant's legal representatives in January 2020). The respondents were given the opportunity to file further evidence in relation to the applicant's contention, and did so on 24 February 2020. The respondents filed affidavits of Mr Macdonald and Ms Stubbs, but did not provide a further affidavit of Mr Mansfield. In these circumstances, the following principles, set out in Cross on Evidence (online edition, last updated May 2019) at [1215], are relevant:
... the principles of Jones v Dunkel apply to the failure by a party to ask a witness called by that party questions in chief, at least where the most natural inference is that the party feared to do so. Indeed it has been said that the omission to ask questions of a friendly witness is more significant than the failure to call the witness, and that the presumption that the testimony would not have been favourable to the party's case is stronger than the presumption arising from the failure to call him.
(Footnotes omitted.)
156 No explanation has been provided as to why a further affidavit of Mr Mansfield was not provided, in circumstances where (for the reasons given above) an inference arises that he was requested to prepare a full brief on the issue of the applicant's family, including the option that the Minister exercise the powers to lift the applicable bars to enable the applicant's family to apply for protection visas.
157 For these reasons, it is to be inferred that, in the days after 14 May 2019, the Minister for Immigration requested the Department to prepare a full brief on the issue of the applicant's family, including the option that the Minister exercise his powers to lift the applicable bars to enable the applicant's family to apply for protection visas. Thus, the Minister made a decision to consider exercising the power in s 46A(2) to enable the applicant to apply for a protection visa.
Consideration of other aspects of the applicant's second contention
158 Having found that the Minister for Immigration made a personal procedural decision to consider exercising the power to lift the bar in respect of the applicant, it is next necessary to consider whether the processes undertaken by the Department, in particular the conduct of the August 2019 Assessment, should be characterised as having a statutory basis. In SZSSJ (HC), the Court stated at [54] that "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".
159 In determining the character of the August 2019 Assessment, it is necessary to consider the context in which it was conducted. This included: the applicant's September 2018 request for Ministerial intervention under s 46A(2); the Minister for Immigration's personal procedural decision to consider exercising the power to lift the bar; the preparation of the May 2019 Submission; the return of that submission to the Department to be finalised "NFA" (No Further Action); and the conduct, in late July and early August 2019, of the pre-removal clearance assessment in respect of the applicant's father.
160 I accept that (as the respondents submit) in returning the May 2019 Submission to the Department to be finalised No Further Action, Mr Macdonald was acting on the instructions of the Minister for Immigration. However, it is unclear what was meant by the return of the submission to the Department on this basis. Mr Macdonald's evidence does not provide an explanation of what was meant by returning the submission to be finalised No Further Action. I note that the Minister did not circle any of the alternatives provided to him on the recommendations pages in the May 2019 Submission. In particular, he did not circle the words "agreed" or "not agreed" in respect of the recommendations that he exercise the powers to lift the applicable bars in respect of the applicant's family. Had he circled "not agreed" in respect of the relevant recommendations, this would have clearly signified a decision by the Minister that he did not wish to exercise the powers to lift the applicable bars. It may be that, in returning the submission to the Department to be finalised No Further Action, the Minister was indicating that he did not wish to make a decision one way or the other at that time. If so, the Minister was not foreclosing that he may subsequently wish to exercise the powers to lift the applicable bars in respect of the applicant's family.
161 Significantly, the Department did not, in the days or weeks after the May 2019 Submission was returned to the Department, write to the applicant's representatives to the effect that the applicant's request for Ministerial intervention had been refused. A letter to this effect was not sent until 21 August 2019, after the August 2019 Assessment had been conducted. This tends to suggest that the return of the submission to the Department, to be finalised No Further Action, was not taken to resolve the applicant's request for Ministerial intervention.
162 Ministerial involvement in relation to the applicant's family continued during July 2019. Among other things, on 25 July 2019, Mr Mansfield sent an email to Ms Pfieffer with the applicant's father's name in the subject line. The email stated that Mr Mansfield "would like to be in a position to update the Minister's office on this matter tomorrow".
163 On 3 September 2019, the Minister for Immigration circled the words "not consider" on the September 2019 Submission, signifying that he did not wish to consider exercising the power to lift the bar in respect of the applicant. This clearly brought to an end the process of consideration of whether to exercise the power to lift the applicable bar. There is no clear evidence of any earlier decision by the Minister to bring to an end his consideration of whether to exercise the power to lift the bar. These matters suggest that the Minister's personal procedural decision had ongoing effect at the time when the August 2019 Assessment was conducted.
164 It is true that the August 2019 Minute is couched in terms of the Minister's Section 46A(2) Guidelines and concludes that the applicant's request for Ministerial intervention "should therefore not be referred to the Minister for consideration". Similarly, in the letter to the applicant dated 21 August 2019, Ms Cassidy stated that: the applicant's request for Ministerial intervention had been assessed against the guidelines; the Department had assessed that the request did not meet the guidelines; and the Department had therefore "finalised this request without referral". Taken in isolation, these statements would suggest that the August 2019 Assessment was merely an assessment by the Department under the guidelines (of the type discussed in Plaintiff S10/2011), without the Minister having any knowledge of or involvement in the case. However, the reality is that, prior to the conduct of the assessment, there had been direct Ministerial involvement in the applicant's case. Thus the present case is far removed from a case in which a guidelines assessment is conducted by the Department without any Ministerial involvement.
165 In light of the above, I consider that the Minister's personal procedural decision had ongoing effect at the time when the August 2019 Assessment was conducted, such that the assessment should be seen as referable to and for the purposes of assisting the Minister's consideration of whether to exercise the power to lift the bar. Accordingly, the assessment should be characterised as having a statutory basis. It follows that the rules of procedural fairness applied if the process affected the applicant's rights or interests.
166 It is therefore necessary to consider whether the Minister's personal procedural decision and the consequent processes affected the applicant's rights or interests. As the Offshore Processing Case at [74]-[75] makes clear, it is sufficient for present purposes if the statutory process affects the person's interests.
167 In several of the cases discussed above, it was held that the claimant's interests were affected where the Minister's decision and the consequent processes prolonged the duration of the person's detention, thus depriving the person of his or her liberty for longer than would otherwise be the case: see, eg, the Offshore Processing Case at [76]; SZSSJ (HC) at [54], [77]-[78]. While this provides one way in which a claimant may demonstrate that his or her rights or interests were affected, I do not consider it to be the only way this can be demonstrated. The discussion of rights and interests in the Offshore Processing Case, particularly at [74]-[75], is expressed more broadly.
168 In the present case, the respondents rely on the evidence of Mr Copeman, set out above, to the effect that removal of the applicant during the relevant period was not reasonably practicable in circumstances where a pre-removal clearance had not been provided by the Department's International and SHP Section in relation to the applicant's father and removing the applicant would have had the effect of splitting the family. On the basis of this evidence, the respondents contend that the applicant's period of detention was not prolonged by any personal procedural decision of a Minister or any consequent processes.
169 However, it is necessary to consider, not only Mr Copeman's reasons for not seeking to remove the applicant, but also the correct legal characterisation of her detention during the relevant period. In Plaintiff S4/2014, French CJ, Hayne, Crennan, Kiefel and Keane JJ stated [26]-[27]:
26 … detention under and for the purposes of the Act is limited by the purposes for which the detention is being effected. And it further follows that, when describing and justifying detention as being under and for the purposes of the Act, it will always be necessary to identify the purpose for the detention. Lawfully, that purpose can only be one of three purposes: the purpose of removal from Australia; the purpose of receiving, investigating and determining an application for a visa permitting the alien to enter and remain in Australia; or, in a case such as the present, the purpose of determining whether to permit a valid application for a visa.
27 Because those who are designated as unauthorised maritime arrivals cannot make a valid application for a visa, the primary purpose for detaining those persons is for effecting their removal from Australia. In this case, however, once the Minister decided that he would consider whether he would exercise his power to permit the plaintiff (and others) to make a valid application for a visa, the detention was for a more complex purpose: for determining whether to permit a valid application for a visa (by making inquiries into matters relevant to the exercise of the power under s 46A and then deciding whether to exercise that power), and thereafter (according to the decision about exercising power under s 46A(2)) either for removal or for the processing of the permitted application.
(Emphasis added.)
170 Applying the above reasoning to the present case, the purpose of the applicant's detention in the period between the Minister's personal procedural decision and the completion of the August 2019 Assessment was to determine whether to permit a valid application for a visa. That provides the legal basis for the applicant's detention during that period. In circumstances where the applicant's continued detention was for the purpose of determining whether to permit a valid application for a visa, the Minister's personal procedural decision and the consequent process of conducting the assessment affected the applicant's interests, because she was detained during the relevant period on that basis. That is sufficient, in my view, to establish that the applicant's interests were affected by the process, even if one accepts (as I have) that Mr Copeman's evidence accurately reflects his reasons for not seeking to remove the applicant.
171 Further and in any event, the analysis provided by Mr Copeman does not readily fall within any of the three categories outlined by the High Court in the above passage. It is therefore doubtful whether it provides a sound legal basis for the applicant's detention during the relevant period. If that analysis had been the only basis for the applicant's detention, it would have been open to her to challenge her detention during the relevant period. However, because her detention was for the purpose of determining whether to permit a valid application for a visa, there was a sound basis for her detention during the relevant period and any challenge to her detention would have failed. In this way, the Minister's personal procedural decision and the consequent processes affected the applicant's interests by prolonging her detention on a basis not open to challenge.
172 For these reasons, I conclude that the applicant's interests were affected by the Minister's personal procedural decision and the consequent processes. Accordingly, the rules of procedural fairness applied to those processes, including the August 2019 Assessment.
173 As noted above, there is no real dispute between the parties that, if the rules of procedural fairness applied, the applicant was not afforded procedural fairness in the conduct of the August 2019 Assessment. As set out above, Ms Ford gives evidence, which I accept, that the applicant was not notified that the August 2019 Assessment was being conducted and was not invited to comment in relation to any aspect of the assessment. I therefore conclude that, in finding that the applicant was not a person to whom Australia had protection obligations, the Departmental officer who carried out the August 2019 Assessment failed to observe the requirements of procedural fairness.
174 For these reasons the applicant's second contention is established. As in the Offshore Processing Case, it is appropriate to make a declaration that the process of assessment was flawed in the respect identified above: see the Offshore Processing Case at [101]-[103]. In the circumstances of this case, it cannot be said that a declaratory order will produce no foreseeable consequences for the parties. The declaration would be directed to determining a legal controversy; it would not be directed to answering an abstract or hypothetical question. The applicant has a real interest in raising the question to which the declaration would go.
175 Subject to any submissions the parties may wish to make as to the form of the declaration, I propose to make a declaration to the effect that, in finding that the applicant was not a person to whom Australia had protection obligations, the Departmental officer who carried out the protection obligations assessment in respect of the applicant in August 2019 failed to observe the requirements of procedural fairness. This form of declaration is broadly based on the declaration made by the High Court in the Offshore Processing Case.
176 In her amended application, the applicant also seeks a final injunction preventing her removal from Australia. In oral submissions, the applicant sought an injunction preventing her removal from Australia for so long as a protection obligations assessment not complying with the rules of procedural fairness is relied upon. However, the parties did not address in any detail whether it is necessary or appropriate to make such an order. Accordingly, this is something that can be addressed, if necessary, in the context of making final orders.
Conclusion
177 For the reasons set out above, the applicant's first contention is rejected, and the applicant's second contention is established. I will, at this stage, make orders that: within seven days, the parties provide any agreed minute of proposed orders to give effect to these reasons and in relation to costs; and, if the parties cannot agree on such orders, within 14 days, each party file and serve a minute of proposed orders to give effect to these reasons and in relation to costs, together with written submissions in support of those orders. I propose to deal with the issues of the form of orders and costs 'on the papers' unless either party requests a hearing. I note that the costs of the applicant's interlocutory application dated 19 February 2020 have not been dealt with and should be included in the proposed orders.
I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. |
Associate:
VID 967 of 2019 | |
SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS |
