FEDERAL COURT OF AUSTRALIA

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave to amend his amended originating application dated 1 August 2019.

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

INTRODUCTION

1    This is a proceeding in which an unsuccessful applicant for a partner visa, Mr Davis (the applicant), requested the first respondent (the Minister) to exercise his personal power under s 351(1) of the Migration Act 1958 (Cth) (the Act) to substitute for a decision of the Administrative Appeals Tribunal (the Tribunal) another decision more favourable to him. He made this request “only to be told that [it] has not even been forwarded to the Minister because the circumstances of the case do not fall within certain guidelines that the Minister has issued”: see Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510 at 511 [1].

2    On 8 May 2019, the third respondent, an Assistant Director in the Department, Ms Karen Dix, concluded, in accordance with the relevant guidelines, that the Department should finalise the applicant’s request without referral to the Minister, because the claims and circumstances presented in the request were not “unique or exceptional” when assessed against those guidelines. The applicant contends that this “decision” was “made unlawfully due to a misconstruction of the guidelines” and was unreasonable, in the sense that no reasonable decision-maker could have failed to refer the application to the Minister by reference to the description in the guidelines of unique or exceptional circumstances.

3    In Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 (Plaintiff S10/2011), the High Court held that, where the Department has not referred a case to the Minister in accordance with such guidelines, no statutory power is engaged and there is no requirement to afford procedural fairness. In particular, there is no requirement to provide an opportunity to be heard to a person requesting of the Department consideration by the Minister of the exercise of a relevant power (here under s 351 of the Act): ibid at 668 [100] (Gummow, Hayne, Crennan and Bell JJ). See also Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 198-200 [46]-[55] (SZSSJ), where the Court summarises the effect of the three separate judgments in Plaintiff S10/2011.

4    If the matter were free from authority, I would have thought that the reasoning of the High Court in both Plaintiff S10/2011 and SZSSJ in relation to procedural fairness would apply with equal force here – that is to say, that a “decision” under the guidelines not to refer an applicant’s request to the Minister is likewise not amenable to review on the ground that it was “unreasonable”. Absent authority, I would have thought that because assessments by officers are not capable of affecting, defeating or prejudicing rights, interests or legitimate expectations (see Plaintiff S10/2011 at 642 [3] (French CJ and Kiefel JJ)), and because no statutory power is ever engaged, the guidelines would not ordinarily attract to them a requirement to act reasonably, especially in a case where the complaint is that the delegate failed to understand correctly, or misunderstood, the case being advanced. In that case, although the complaint is of legal unreasonableness, it is rather more akin to a complaint about procedural fairness. It would follow that an application, such as Mr Davis makes in this proceeding, for review of a departmental decision not to forward the applicant’s request to the Minister on that ground, would be liable to summary dismissal.

5    The judgment of Robertson J in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 369 ALR 620 (Jabbour), however, contains observations to the contrary. In that case, his Honour, by way of obiter dicta, held that the mere displacement of the common law presumption in favour of procedural fairness with respect to the exercise of power under s 351 of the Act did not mean that principles of legal reasonableness were likewise displaced: at 636 [81], 639 [92]. That view has also recently been endorsed, again by way of an obiter observation, in Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457 at [22] (Mortimer J).

6    Although the Minister filed written submissions with respect to what he contends were a number of errors in his Honour’s obiter dicta reasoning in Jabbour, those submissions were not fully developed in oral addresses, for reasons that included considerations of comity. It is, however, unnecessary to consider those submissions here because, for reasons I explain below, the impugned decision¸ as was also the case in Jabbour, was not legally unreasonable.

7    Before turning to the merits of the application, I need to deal with the applicant’s application to amend his amended originating application to include the following relief: (a) a writ of certiorari to quash the “decision”; (b) a writ of mandamus to require the Secretary of the Department to consider and determine according to law the applicant’s request for ministerial intervention; and (c) a writ of prohibition or an injunction to prevent any of the respondents from giving effect to or relying upon the decision.

8    These amendments are necessary in order to invoke jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth). Without them, the applicant would be left seeking only bare declarations. Absent any declaration of any immediate right, duty or liability, there would then be no “matter” arising under the Constitution (s 39B(1A)(b)) or a law made by the Parliament (s 39B(1A)(c)): see Griffith University v Tang (2005) 221 CLR 99 at 131 [90] (Gummow, Callinan and Heydon JJ); Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 405-406 [61]-[62] (Gaudron and Gummow JJ).

9    I propose to grant the applicant leave to amend his amended originating application dated 1 August 2019, to include the following relief:

1.    A declaration that the decision maker, the Third Respondent, erred in law in deciding on 8 May 2019 (and giving notice on 10 May 2019) that the Applicant’s request for ministerial intervention did not meet the guidelines for referral to the Minister because it was not the type of case that should be referred to the Minister (“the decision”).

2.    A declaration that the Applicant’s request for ministerial intervention was not finalised.

3.    A writ of certiorari to quash the decision.

4.    A writ of mandamus to require the Second Respondent to consider and to determine according to law the Applicant’s request for ministerial intervention.

5.    A writ of prohibition or an injunction to prevent the respondents from giving effect to or relying upon the decision.

6.    An order that the First Respondent pay the Applicant’s costs of this application.

7.    Such other orders as the Court thinks appropriate.

10    It follows that the court has jurisdiction to entertain the application under s 39B(1) of the Judiciary Act 1903 (Cth).

Background facts

11    The following summary of the (uncontroversial) relevant facts is taken largely from written submissions filed on behalf of the applicant.

12    The applicant is a citizen of the United Kingdom. He first arrived in Australia in July 1997 on a working holiday visa. That visa expired on 9 July 1998. In August 1998 he arrived as the holder of an Electronic Travel Authority (subclass 976), which ceased on 28 November 1998.

13    The applicant remained in Australia until 15 September 2014, under the mistaken belief that he had been granted permanent residency as a result of lodging a partner visa application.

14    It was not until he encountered difficulties with immigration officials at the airport on his return from the United Kingdom on 1 November 2014 that the applicant discovered that he had in fact been living in Australia unlawfully since 29 November 1998.

15    He was granted a tourist visa to re-enter Australia so that he could try to resolve his immigration status. He subsequently applied for and was granted a subclass 457 visa. That visa was cancelled in May 2017 under s 116 of the Act (for ceasing employment with his employer for a period exceeding 90 days).

16    On 20 July 2016, whilst still the holder of the subclass 457 visa, the applicant applied for a partner visa on the basis of his relationship with an Australian citizen. On 12 June 2018, the application was refused by a delegate of the Minister on the basis that the applicant’s partner had withdrawn her sponsorship of the partner visa.

17    On 27 June 2018, the applicant lodged an application for review with the Tribunal. On 6 December 2018, the Tribunal invited the applicant under s 359A of the Act to comment or provide further information. The applicant did not provide any comment or response. The Tribunal affirmed the decision of the delegate on 14 January 2019.

18    On 11 February 2019, the applicant requested that the Minister intervene under s 351 of the Act, which relevantly provides:

351 Minister may substitute more favourable decision

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

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

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

…

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

19    The Minister has, as mentioned above, published guidelines on ministerial powers (ss 351, 417 and 501J), a purpose of which is to “explain the circumstances in which [he] may wish to consider intervening in a case”. Among other things, under the rubric “Unique or exceptional circumstances”, the guidelines provide in clause 4 that “[c]ases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers”. The guidelines then list a number of circumstances, including relevantly:

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

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

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

20    The applicant’s then representative provided detailed submissions and documentation to support the applicant’s claim that his case involved unique or exceptional circumstances as described in clause 4.

21    The applicant said that his case met those guidelines and was therefore unique or exceptional because:

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

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

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

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

(5)    The second respondent’s assessment and handling of his partner visa was a critical aspect of the relationship breakdown and the burdensome requests for more information coupled with a two-year delay in processing the application was a circumstance not contemplated by the Act and is unfair.

(6)    He has his whole life in Australia. He has no immediate family in the United Kingdom, and his age and lack of experience in Europe and the UK would make it incredibly difficult for him to find work. This would potentially place him in financial hardship, which would be further aggravated by being forced to relocate overseas. He is solely accustomed to the Australian way of life, and his forced departure will undeniably damage his health and psychological state and result in serious, ongoing harm.

22    On 8 May 2019, the Assistant Director made a decision not to refer the applicant’s request to the Minister. She did so after agreeing with the assessment made by a case officer that the applicant’s case did not meet the guidelines for referral to the Minister. Her reasons were adequately summarised in the applicant’s written submissions, as follows:

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

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

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

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

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

23    The outcome of the intervention request was sent to the applicant’s then representative by email on 10 May 2019. It read, omitting formal parts, as follows:

This request has been assessed against the Minister’s guidelines … 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.

24    On 15 May 2019, the applicant’s former representative wrote to the Department and the Assistant Director. He contended that the Department had not considered various aspects of his submissions, and that the applicant’s claim for intervention addressed the unique or exceptional circumstances listed in clause 4 of the guidelines. The representative urged the Department to “thoroughly consider” the guidelines pursuant to ss 351 and 417 of the Act.

25    On 20 May 2019, the Assistant Director made a further decision not to refer the applicant’s request to the Minister. She assessed the request for ministerial intervention on the basis that the applicant’s 15 May 2019 correspondence was a “repeat request”. The outcome of the intervention request was sent to the applicant’s then representative by email later that day. It read, omitting formal parts, as follows:

This request has been assessed against the Minister’s guidelines … which describe the type of cases that should be referred to the Minister. The Minister has indicated that requests that do not meet the Guidelines should not be referred.

The Minister’s guidelines describe a repeat request as a request in relation to which the Minister or another Minister (current or previous) has previously received a request to intervene in the person’s case under any of the powers covered in the guidelines …

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

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

(Emphasis added.)

26    This outcome was supported by a minute dated 20 May 2019 outlining the reasons for the assessment. It read, omitting formal parts, as follows:

Assessment of repeat request for intervention in accordance with the Minister’s guidelines on ministerial powers (sections 351,417,501J)

The Minister’s guidelines

The Minister has certain non-compellable, non-delegable, powers that only the Minister may exercise. The Minister’s guidelines relating to the exercise of the Minister’s personal public interest intervention powers under sections 351, 417 and 501J of the Migration Act 1958 contain the following general principles on the exercise of those powers:

Cases that should be brought to the Minister’s attention

The guidelines provide that cases may be referred to the Minister for his consideration under the Minister’s personal public interest intervention powers where those cases have one or more unique or exceptional circumstances. Sections 4 and 5 of the guidelines provide guidance on what the Minister may consider to be a unique or exceptional circumstance as well as a non-exhaustive summary of what the Minister considers to be relevant issues.

Assessment of Repeat Request

Section 10 of the Minister’s guidelines describes a repeat request as a request in relation to which the Minister or another Minister (current or previous) has previously received a request to intervene in the person’s case under any of the powers covered in the guidelines. A request is repeat request even if the earlier request or requests related to a different visa application.

The Minister’s guidelines provide that the Minister does not wish to consider or have referred repeat requests except in certain limited circumstances which are:

•    where the department is satisfied there has been a significant change in circumstances which raise new, substantive issues not previously provided or considered in a previous request; and

•    the department assesses the new, substantive issues as falling within the unique or exceptional circumstances criterion as described in section 4 of the guidelines; and

•    where it is not inappropriate to consider as described in section 7 of the guidelines.

Where a request does not come within the circumstances described above, the guidelines provide that the request should not be referred to the Minister.

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

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

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

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

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

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

How this request will be finalised

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

The parties’ submissions

The applicant’s submissions

27    Counsel for the applicant contended in written submissions prepared by other counsel but adopted by him that the decision not to refer the applicant’s request for intervention to the Minister was attended by jurisdictional error. This was said to be so because the decision “was made unlawfully due to a misconstruction of the Guidelines by the Second Respondent”, as follows:

The Second Respondent considered that the case did not have unique or exceptional circumstances such as those described in clause 4 of the guidelines when in fact the applicant did have circumstances that were the same or similar to those described in clause 4 of the Guidelines.

Clause 12 of the Guidelines directed consideration by the First and Second Respondents of whether it was in the public interest for the Minister to consider intervening in a case, even if the circumstances did not fall within the unique or exceptional circumstances described in clause 4 of the Guidelines. It is to be inferred that even if the Second Respondent erroneously considered whether the case was like those described in clause 4, the Second Respondent did not go on to consider whether it was in the public interest for the First Respondent to intervene in the case …

Furthermore … it was legally unreasonable for the Second Respondent to conclude, as a matter of evaluation or judgment, that the applicant’s case did not present unique or exceptional circumstances and did not meet the Guidelines.

28    The written submission continued:

The Applicant’s case did have circumstances that were the same or similar to those described in clause 4 of the Guidelines, namely:

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

-    The claims presented support that the departure of the Applicant will have a severe emotional effect on many of the Australian friends and associates he is surrounded by. In particular, as evidenced by the [s]tatutory declaration of Lynette Giddins and submission of the applicant’s former representative, the applicant has a mother/son type relationship with Ms Giddins and she relies on him for assistance. She has stated that his departure would have serious repercussions on her quality of life because she is almost totally reliant on him for physical and emotional support.

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

-    The Applicant has lived in Australia for 22 years – he is almost 50 years old. Notwithstanding that he was unwittingly unlawful for a majority of that time, he has built his life here and departing would cause him emotional and psychological distress. His interactions with other Commonwealth Government entities had cemented his mistaken belief that he was a permanent resident as a result of his former relationship with an Australian citizen. This is especially so given that he was receiving Medicare benefits, had registered more than one company, had obtained an Australian business number and was paying tax as a resident of Australia.

-    He has no family in UK and no experience in Europe or UK – making it incredibly difficult to work given his age and lack of experience.

-    He is accustomed to the Australian way of life and it will undeniably damage his health and psychological state [and] result in serious ongoing harm. His network of friends and colleagues and the person he regard as his ‘second mum’ reside in Australia.

Exceptional economic, scientific, cultural or other benefit that would result from being permitted to remain in Australia

-     The Applicant runs a successful small business and contributes positively to the Australian economy. He has been living and working in Australia for 22 years.

-    The Applicant’s skills and knowledge in the building industry is a great asset to Australia’s growing population and he has employed many tradespeople and subcontractors.

-    From an economic perspective he has contributed to the property market and his departure would result in the loss of his business or investment activities.

The Decision of the Second Respondent is arbitrary in that the Decision ignored the Applicant’s submissions as to why his case exhibits unique or exceptional circumstances and focused on the general fact that the applicant had been unlawful. So much is evident from the reasons of the Decision ...

On its proper construction, the purpose of the Guidelines is not for the Second Respondent to conclude as a matter of judgment or evaluation, that a case did not present unique or exceptional circumstances and did not meet the Guidelines. Rather, the Guidelines explain that the First Respondent does want the Second Respondent to refer cases to him for consideration if the case exhibits unique or exceptional circumstances.

In the premises it was legally unreasonable for the Second Respondent to conclude, as a matter of evaluation or judgment, that the Applicant’s case did not present unique or exceptional circumstances and did not meet the Guidelines. This conclusion can be reached after identifying that the Second Respondent misconstrued the Guidelines [citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 350-351 [27]-[28] (French CJ), 365-366 [72] (Hayne, Kiefel and Bell JJ) (Li); cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 624 [39] per Gummow A-CJ and Kiefel J]. It can also be gleaned from the Reasons in what French CJ in [Li at 351 [28]] calls ‘an area of decisional freedom’: it has the character of a choice that is arbitrary, capricious or without ‘common sense’ … The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking ‘an evident and intelligible justification’ [citing Li at 367 [76] (Hayne, Kiefel and Bell JJ)].

In the present case, the Decision does not demonstrate justification. The Applicant’s case raised multiple compassionate circumstances which squarely fell within the circumstances described in clause 4 of the Guidelines. It follows that the Second Respondent’s treatment of the request for ministerial intervention revealed legal unreasonableness. No reasonable decision maker would have reached this decision – that is, would have failed to refer the request to the First Respondent.

(Emphasis in original.)

29    On the “repeat request” point, the applicant submitted as follows:

It should be noted that the Second Respondent regarded the 15 May 2019 email correspondence from the applicant’s former representative as a repeat request under clause 10.2 of the Guidelines. That was in error. The 15 May 2019 email was not a repeat request as defined by the Guidelines. The Applicant’s representatives were addressing the Second Respondent with respect to the Applicant’s first request for ministerial intervention. This misconstruction of clause 10.2 further demonstrates the Second Respondent’s legal unreasonableness. The correspondence was clearly directed at the outcome of the first request and the Second Respondent’s failure to properly engage with the Applicant’s claims under the Guidelines.

30    Finally, in relation to clause 12 of the guidelines (headed “Minister’s powers not limited by Minister’s guidelines”), the applicant made the following written submission:

Further, clause 12 of the Guidelines directed consideration by the First and Second Respondents of whether it was in the public interest for the Minister to consider intervening in a case, even if the circumstances did not fall within the unique or exceptional circumstances described in clause 4 of the Guidelines. It is to be inferred that even if the Second Respondent erroneously considered whether the case was like those described in clause 4, the Second Respondent did not go on to consider whether it was in the public interest for the First Respondent to intervene in the case even if it fell outside the examples in clause 4 and should be considered anyway, under clause 12. This can be gleaned from the Decision

The Minister’s submissions

31    The Minister submits that the applicant’s case, in substance, invites the court impermissibly to assess for itself that the applicant’s case did have circumstances that were “unique or exceptional”, and therefore to impute legal error to the Assistant Director in failing to form that opinion and thereby in failing to refer the applicant’s case to the Minister.

32    The Minister submits that the guidelines clearly invite a question of “evaluation or judgment” by officers in the Department as to whether or not a case has “unique or exceptional circumstances”, including whether: (a) “there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible hardship to an Australian citizen”; (b) “there are compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person”; or (c) “exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia”.

33    The Minister submits that, although the applicant asserts it was “legally unreasonable” for the Assistant Director to conclude as a matter of evaluation or judgment that the applicant’s case did not present “unique or exceptional circumstances”, his case in that regard amounts to no more than such an assertion and that he does not identify, as he must, some true irrationality in any process of reasoning of the Assistant Director (or the case officer) (citing, by way of comparison, Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 446 [47]).

34    The Minister submits that it is well established, in the context of challenges to decisions under statute, that the concept of unreasonableness does not provide a vehicle for the court to remake a decision according to its own view as to reasonableness and that “[t]he correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion” (citing Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 5 [8], 8 [21] (Allsop CJ); Minister for Immigration and Border Protection v Gill (2019) 268 FCR 576 at 577-578 [8]-[10] (the Court); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 566-567 [57]-[60] (Gageler J)).

35    The Minister further submits that because: (a) the power in s 351 that provides the context in which the guidelines have been issued is one of significant width and is inherently evaluative in nature; and (b) the guidelines as to when a request that the Minister exercise his power under that section should be referred to him do not have “the status of law”, only a “radical” misconstruction or misapplication of them could give rise to legal error (citing Minister for Foreign Affairs v Lee (2014) 227 FCR 279 at 290-291 [59]-[60] (Robertson J)).

36    Along the same lines, the Minister cited this passage from Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 185 [25] (French CJ, Bell, Keane and Gordon JJ): “[i]t is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision”.

37    As to the second or repeat request, the Minister submitted as follows:

The Minister notes that the applicant has not sought relief with respect to the second assessment by the Assistant Director, on 20 May 2019, in response to the applicant’s representative’s email correspondence on 15 May 2019. However, the applicant’s submission that the Assistant Directo[r] erred in assessing the latter correspondence as a ‘repeat request’ for the purposes of clause 10.2 of the Guidelines must be rejected. Plainly, it was open to the Assistant Director to regard this as a ‘repeat request’: a request had previously been made, and the Department had informed the applicant on 10 May 2019 that an assessment had been made that that request did not meet the Guidelines. The applicant’s representative’s correspondence of 15 May 2019 was clearly capable of being characterised as a repeat request, even if the submissions as then framed by reference to particular aspects of the Guidelines drew from evidentiary material which the applicant had previously provided at the time of his first request.

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

(Emphasis in original.)

38    Finally, as to clause 12 of the guidelines, the Minister submits as follows:

[T]he applicant’s contention that the Assistant Director erred by misconstruing the Guidelines and thereby erred by failing to refer the applicant’s case to the Minister in accordance with clause 12 of the Guidelines is misconceived. Clause 12 simply acknowledges that the Minister’s personal powers under sections 35, 417 and 501J of the Act are not circumscribed by the assessment of ‘unique or exceptional circumstances’.

Consideration

39    It is important to recognise in a case such as this that it is not the court’s role to form its own view about whether an applicant has or has not demonstrated unique or exceptional circumstances. As French CJ observed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 351 [30]:

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in [Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40]] that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, ‘may have no particular legal consequence’.

40    It is, as counsel for the Minister submitted, necessary for the applicant to demonstrate some true irrationality in any process of reasoning of the Assistant Director if an attack on the process of reasoning is to succeed.

41    The correct question, as the cases cited by the Minister illustrate, is not whether the court thinks the decision is reasonable, or necessary for the purpose, or not, but rather it is whether a decision-maker could reasonably have come to the relevant conclusion.

42    In this case, it seems to me that the Assistant Director’s evaluation or judgment that the applicant’s case did not meet the guidelines for referral to the Minister was, contrary to the applicant’s contention, a reasonable one. The Assistant Director gave five principal reasons for that evaluation or judgment, namely:

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

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

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

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

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

43    In my view, there is nothing unreasonable about that path of reasoning, nor does it disclose any apparent misconstruction of the guidelines.

44    The applicant’s written submission regarding clause 12 of the guidelines (the clause entitled “Minister’s powers not limited by Minister’s guidelines”) was to the effect that, even if the applicant’s case did not demonstrate unique or exceptional circumstances under clause 4, the Assistant Director was obliged by clause 12 to consider whether it might be in the public interest for the case nonetheless to be referred to the Minister. That submission was not pursued at the hearing. In any event, as the Minister correctly submitted, there is nothing in clause 12 to suggest that the Assistant Director was under such an obligation.

45    There is also nothing in the applicant’s point about the “repeat request”. It was clearly open to the Assistant Director to regard the request described at [24] above as a “repeat request”, because a previous request had already been made and denied.

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

Conclusion

47    For the preceding reasons, the application must be dismissed, with costs.

Associate:    

Dated:    9 June 2020