FEDERAL COURT OF AUSTRALIA

CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s claim for interlocutory relief be dismissed.

2.    The applicant pay the respondents’ costs of the interlocutory application, to be fixed by way of a lump sum.

3.    In the absence of any agreement between the parties within 28 days of these orders, the question of an appropriate lump sum pursuant to paragraph 2 of these orders be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1    This application for interlocutory relief came on as a matter of urgency, on the basis that the applicant had been given notice he was liable to be removed from Australia at any time after 10 June 2020. It is proposed that the applicant will be removed to the United Kingdom. The Minister’s legal representatives confirmed to the Court the applicant would not be removed prior to the morning of 15 June 2020. The interlocutory relief sought was to restrain the Minister personally or by his delegates, officers, servants or agents from taking any step to remove the applicant from Australia until the conclusion of this proceeding or until further order. The applicant was represented by counsel on the hearing of the application, after a referral made at counsel’s request under r 4.12 of the Federal Court Rules 2011 (Cth). The Minister was also represented, and did not oppose the making of the referral.

2    The interlocutory hearing was conducted by telephone on 9 June 2020, in accordance with the Court’s COVID-19 policies. While it may be debatable whether the terms of s 91X of the Migration Act 1958 (Cth) are engaged, out of an abundance of caution an order suppressing the applicant’s identity was made, given the fact that the applicant has applied for a protection visa in the past, and his appeal concerning that protection visa was relatively recently determined.

3    The proceeding filed on 5 June 2020 seeks review of the decision of an officer of the Department of Home Affairs not to refer the applicant’s request for ministerial intervention in relation to the cancellation of his visa to the Minister. The applicant currently does not hold a valid visa which is in force, but has sought ministerial intervention pursuant to the power given to the Minister under s 351 of the Migration Act. There is a similar power in s 417 of the Migration Act.

4    Section 351 provides:

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

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

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

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

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

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

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

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

   (a)    the name of the applicant; or

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

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

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

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

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

5    The powers in both s 351 and s 417 are reposed in the Minister personally and are exercisable after adverse decisions of the Administrative Appeals Tribunal. Each power authorises the Minister to substitute a more favourable decision to that made by the Tribunal, and in substance authorises the Minister to grant a non-citizen a visa of any class, irrespective of whether the person meets the criteria for that visa, and irrespective of whether the Tribunal could have done so. As the text makes clear, the powers are available in circumstances where the Minister considers it is in public interest to exercise that power. Each of s 351 and s 417 expressly states that the Minister has no duty to consider whether to exercise the power conferred by those provisions. That feature of each of the provisions affects the relief which can be granted by this Court on any judicial review, and affects the nature of the judicial review which can be undertaken.

6    Judicial review of requests for the exercise of these powers is affected by the administrative arrangements the responsible Minister has made to introduce a two-stage process into the operation of s 351 and s 417. The process was introduced through a set of ministerial guidelines, entitled Minister’s guidelines on ministerial powers (s351, s417 and s501J). The Guidelines have no statutory force. In Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457 at [12]-[13] I set out passages from the High Court’s decision in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [90]-[91] and Robertson J’s decision in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438 at [19] which described the operation and effect of the Guidelines.

7    The first step is that any request or referral is considered by an officer of what is now called the Department of Home Affairs. That consideration occurs within the context created by the Guidelines, and after the preparation of a “brief” to that officer by another officer, which contains a recommendation about whether the request or referral should be placed before the Minister.

8    The task of the determining officer (and, to some extent, the task of the recommending officer) is a critical part of the applicant’s case in this proceeding.

9    If the determining officer decides the request or referral should be placed before the Minister, then for the purposes of the statutory power, the Minister is taken to have embarked on a consideration of whether or not to exercise the power. Ultimately, once he has embarked upon a consideration of whether or not to exercise the power to grant a visa, the Minister’s discretion must be exercised rationally and reasonably and otherwise in accordance with the law, but it is a wide discretion, as the statutory criterion of the “public interest” suggests.

10    The present applicant’s application concerns the first stage or step, because his request for ministerial intervention was not referred to the Minister for consideration. The date of the recommendation was 5 May 2020. The decision not to refer the request was then made by the Assistant Director, Ministerial Intervention, on 18 May 2020.

11    In substance, and as explained by counsel in the interlocutory hearing, the applicant contends the decision of the determining officer was legally unreasonable, because it was not open to the determining officer to find that the applicant’s request did not fall within the Guidelines. The applicant contends the recommending officer misunderstood the function conferred by the Guidelines and proceeded to evaluate the applicant’s request as if the officer were called on to consider whether or not to exercise the power in s 351. In other words, this misunderstanding caused the recommending officer to stray well beyond the task conferred by the Guidelines, which in the applicant’s case was (it is contended) so obviously within the criteria there set out that no reasonable officer could have failed to recommend the request be referred to the Minister. I understood the argument to proceed on the basis that if this was the error in the approach of the recommending officer, it was also the error in the approach of the determining officer who, on the evidence, simply accepted the recommendation and should be taken to have done so for the reasons set out by the recommending officer.

12    The relief sought was in substance to compel a reconsideration of the applicant’s request for intervention. The applicant did not seek relief to compel his request to be referred to the Minister.

13    The applicant has named as respondents the Minister, the Secretary to the Department of Home Affairs and an individual whom the Minister appears to accept was the determining officer. At the hearing there was some discussion of whether all three respondents are necessary and appropriate parties but I considered for the purposes of the interlocutory application the respondents should remain as the applicant had identified them. The Minister did not object to this course.

14    To grant the applicant the interlocutory relief he seeks, and restrain the Minster from removing the applicant from Australia until his application for judicial review is heard and determined, the Court must be satisfied there is a serious question to be tried and that the balance of convenience favours the grant of interlocutory relief. In some cases, where a person will otherwise be removed from Australia, the subject matter of the proceeding (being the person’s interest in remaining or entitlement to remain in Australia) may be lost (in law or in reality). In such cases, there may be some force in the proposition that the balance of convenience favours the grant of such relief. However each case will turn on its facts and, as the authorities make clear, the two limbs of the test for the grant of interlocutory relief are intertwined. I refer to and adopt my reasons for judgment in EHW18 v Minister for Home Affairs [2018] FCA 1350; 262 FCR 27 at [6]-[9]. In particular I repeat the passages from the judgment of Gummow J in Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; 82 ALR 499 at 502, where his Honour referred to a statement by Hoffmann J in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772. His Lordship had said (at 780-1):

I think it is important in this area to distinguish between fundamental principles and what are sometimes described as ‘guidelines’, ie useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the ‘wrong’ decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.

15    In public law, evaluating the “risk of injustice” to the repository of a public power may involve a different kind of evaluation. The risk of injustice may, in such circumstances, relate to the frustration of legislative intention within a legislative scheme, or the interruption of the course otherwise contemplated by law. Nevertheless, consideration of which course has the lower risk of injustice may still provide useful guidance to the Court in assessing whether it is appropriate to grant interlocutory relief.

Factual background

16    It is appropriate briefly to describe the factual background to this proceeding, and to the decision under review. The evidence led on the interlocutory application was:

(a)    an affidavit of the applicant dated 5 June 2020, together with exhibits;

(b)    an affidavit of Mr David Brown, the lawyer with carriage of this matter on behalf of the respondents, dated 9 June 2020, together with exhibits; and

(c)    a further affidavit of Mr Brown dated 10 June 2020, together with exhibits.

17    The last affidavit was filed at the Court’s request, after a number of matters were raised during the hearing of the interlocutory application. This affidavit included an explanation of how it was proposed the applicant would be removed to the United Kingdom in light of the COVID-19 pandemic. In conjunction with the relevant United Kingdom authorities, a charter flight to London has been arranged by the Department of Home Affairs departing early on the morning of 15 June 2020. It is proposed that the applicant will be provided with 14 days’ accommodation at a hotel in London used by the United Kingdom authorities for a required isolation period. It is further proposed that the applicant will be provided with a third week’s accommodation, and a set amount of money to help support him during this period, or will be provided with onward flights to his family home in Scotland at the end of the required isolation period.

18    The applicant is a citizen of the United Kingdom. His family circumstances are relevant to his migration status at various times, and also to his request for ministerial intervention. The following summary is taken from the reasons of the Tribunal at [15]-[18] and [21]-[23], given on a merits review decision in respect to the cancellation of the last valid visa held by the applicant:

The applicant is a 36-year-old father who was born in the United Kingdom. The applicant originally came to Australia as a dependent on his wife’s student visa. He and his wife have a six-year-old daughter who attends primary school in Melbourne, Victoria.

The applicant has previously been in immigration detention. The applicant and his wife lost their infant son in early 2017. Following this, the applicant attended his daughter’s school where he is alleged to have assaulted his wife and another parent.

On 1 August 2017 the Magistrates’ Court of Victoria at Heidelberg issued a final intervention order which prohibited the applicant from committing family violence. At this time, the applicant’s wife and the applicant did not support the grant of the order because the applicant had recently received mental health treatment in New Zealand.

…

The applicant’s wife gained a subclass 457 visa when the applicant was in detention in 2017 and the applicant has applied to become a dependent on his wife’s subclass 457 visa.

The circumstances which bring the applicant back before the Tribunal are alleged to have occurred in the last week of January 2018 and are dealt with more fully below. According to the notice of intention to consider cancellation documentation provided to the Tribunal, the applicant was charged with offences relating to contravening an intervention order in late January 2018. This was the grounds upon which the delegate made the decision that is before the Tribunal.

By way of background, the applicant was arrested by members of Victoria Police on 1 February 2018 and charged with further similar offences.

19    As a result of the exchange of information between Victoria Police and the Department about the charges in January and February 2018, on the same day that the second set of charges was brought, a delegate of the Minister decided to cancel the applicant’s Bridging visa E, thus rendering him an unlawful non-citizen. The applicant was detained, and applied for review of that cancellation decision. On 28 June 2018, the Tribunal affirmed the cancellation decision, with its reasons including the passages I have extracted at [18] above. As part of its consideration, the Tribunal examined the best interests of the applicant’s daughter, a number of references and the applicant’s own evidence. As the Tribunal pointed out in its reasons, the applicant’s wife did not provide any material in support of his merits review application, in contrast to having done so in his 2017 application. A statement given by the applicant’s wife to the police following the two incidents in early 2018 was before the Tribunal. The Tribunal noted those incidents occurred only six weeks after the applicant had been released from immigration detention. The Tribunal set out, at [42] of its reasons, part of that statement:

I know that [the applicant] will be even more angry with me when he knows that I have spoken to police. I feel unsafe living with [the applicant], and I can’t carry on like this. I would like an intervention order that prevents [the applicant] from being at our house so that I can feel safe there with [our daughter]. I am hoping that [the applicant] will not get his visa and will have to return to Scotland.

20    In contrast to this evidence from his wife, the applicant’s own evidence to the Tribunal was summarised by the Tribunal at [41]:

The applicant was invited to give evidence concerning the possible consequences of cancellation. The applicant repeated much of his earlier evidence and said that the consequences would be “absolutely devastating”. He said that he considered that his daughter needed a father and that his wife has been thinking emotionally and not clearly. He said that he would “lose everything” and that his daughter’s world would be “torn apart”. He said that he was confident that his wife would be at the Magistrates’ Court of Victoria on the next occasion and that she would want to reunite with him.

21    I extract these aspects of the Tribunal’s reasons for the purpose of demonstrating that at a merits review level many of the assertions made by the applicant on the present interlocutory application were considered and rejected.

22    The applicant sought judicial review of the Tribunal’s decision, but in March 2019 his application for judicial review was dismissed.

23    On 6 September 2018, after the Tribunal’s decision, the applicant applied for a protection visa, which was refused on 17 September 2018. He availed himself of merits review, and then judicial review of this decision. His judicial review of that decision was unsuccessful, as was his appeal: see generally GLD18 v Minister for Home Affairs [2020] FCAFC 2.

24    His visa application avenues exhausted, on 17 April 2020, shortly after the Full Court’s decision, the applicant submitted a request for ministerial intervention.

25    In his letter to the Minister requesting intervention under s 351, the applicant referred to the importance of his relationship with his daughter, both to him and his daughter, as being the primary reason he submitted the Minister should exercise his power under s 351. The applicant also submitted that:

(a)    his visa was cancelled on the basis of a “technical breach”, in that when he breached the intervention order he was making arrangements with his then wife for contact with their daughter;

(b)    he cannot be returned to the United Kingdom because of the COVID-19 pandemic;

(c)    he will suffer greatly if he cannot visit his son’s grave; and

(d)    he has been integrated into the Australian community by reason of his previous employment as an officer of the Telecommunications Industry Ombudsman and, more recently, as a full-time father.

26    As I have noted, on 5 May 2020, a case officer in the Department of Home Affairs recommended to the Assistant Director, Ministerial Intervention, that the applicant’s request did not meet the Guidelines and should not be referred to the Minister; on 18 May 2020, the Assistant Director indicated agreement with the recommendation; and on 19 May 2020, the applicant was notified of the decision.

27    The recommendation memorandum to the Assistant Director was exhibited to Mr Brown’s first affidavit. It contained a summary of the applicant’s immigration history, including details of his detention; a list of “key issues”, including a summary of charges brought against the applicant, reviews conducted by the Tribunal, and an assessment of the applicant conducted using the Department’s “Community Protection Assessment Tool”; a summary of the applicant’s request for ministerial intervention; and “other information” contained under the headings “Character”, “Family disposition”, “Australia’s international obligations”, “Employment, skills, and qualifications”, “Health”, “Debts to the Commonwealth” and “Offshore visa options”.

28    Under the heading “Community Protection Assessment Tool (CPAT)”, the memorandum states:

[The applicant] was assessed using the Department’s CPAT on 27 April 2020. The CPAT recommended Tier 3 – Held Detention. The CPAT indicates his risk of harm to the community is HIGH and his risk of not engaging with the Department is LOW.

29    The longest evaluative section of the memorandum is under the heading “Australia’s international obligations”, which contains two sections: “International Covenant on Civil and Political Rights (ICCPR)” and “The Convention on the Rights of the Child (CRC)”.

30    Under the subheading “International Covenant on Civil and Political Rights (ICCPR)”, the memorandum states:

The departure of [the applicant] would result in separation from his eleven-year-old [sic] daughter, [redacted]. However, the Department notes her mother has the sole custody of the child and he has been in held detention since September 2017 [sic]. His daughter lives with her mother in their family home, supported by the mother’s income. They are not dependent on him. There is no evidence his ex-wife and child have ever visited him in the detention centre, apart from a planned booking made by his ex-wife in September 2017, which did not go ahead. The Department notes that PAM – Removal from Australia states a direction from the Family Court that an unlawful noncitizen has access to a child in Australia does not override the Department’s obligation to remove that person pursuant to s198 of the Act.

The couple have been involved in domestic violence on several occasions and eventually separated. The separation of [the applicant] from his child does not represent an arbitrary interference with the family. Separation, temporary or prolonged, would be the lawful and predictable outcome of their respective circumstances.

31    Under the subheading “The Convention on the Rights of the Child (CRC)”, the memorandum states:

The best interests of the child (as outlined in the above provisions) need only be a, rather than the, primary consideration and may be balanced by countervailing considerations. The Australian Government’s view is that the maintenance of the integrity of Australia’s migration system, which reflects Australia’s sovereign right to enforce its migration laws against unlawful non-citizens, may be such a countervailing consideration. Consideration of the best interests of a child does not automatically lead to a decision to allow the child’s family to remain in Australia. It remains, however, that the child is currently in the primary care of her mother. Being the biological parent of an Australian Permanent Resident child does not in itself equate to an automatic right to remain permanently in Australia.

There is no evidence [the applicant] is the primary carer of [his daughter], or he plays an active parental role in her life. The Court order indicates [his daughter]’s mother needs to communicate with [the applicant] well in advance before making any decision about the child’s education, religion, cultural upbringing, health or any decision impacting the long term welfare of the child. He does not have to remain in Australia for this to happen. If he departs, he can communicate with [his daughter] using various electronic means from Scotland, like many other families in similar circumstances.

32    The memorandum concludes with the following “assessment”:

I have assessed this request against the Minister’s Guidelines on ministerial powers (section 351) which describe the circumstances where a case may be considered to have one or more unique or exceptional circumstances and which the Minister wishes to have referred for his consideration.

The claims and circumstances presented in this request are not unique or exceptional when assessed against the Minister’s Guidelines. The case is assessed as not meeting the Guidelines for referral to the Minister.

33    On 19 May 2020, the applicant received a notification in the following terms:

This request has been assessed against the Minister’s guidelines on ministerial powers (s351, s417, s501J) 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.

The Guidelines

34    Section 1 of the Guidelines states that the purpose of the Guidelines is to:

                    1.    explain the circumstances in which [the Minister] may wish to consider intervening in a case

                    2.    explain how a person may request that [the Minister] consider intervening in their case

                    3.    explain when [the] Department should refer a case to [the Minister]

                    4.    confirm that if a case does not meet [the] guidelines, [the Minister does] not wish to consider intervening in that case.

35    Section 10, concerning how requests for ministerial intervention will be progressed, distinguishes between “first requests” and “repeat requests”. The applicant’s request appears to have been a first request.

36    In s 10.1, which concerns first requests, the Minister makes it clear that the assessment by a departmental officer is to result in a case being referred if it falls within the Guidelines, and not being referred if it does not. In other words, as both parties accepted, the Guidelines do not intend to give departmental officers any licence to decide that, notwithstanding an individual’s case may meet the Guidelines, it should not be referred to the Minister.

37    Section 10.1 provides:

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

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

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

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

38    The terms of s 10.1, and the lack of any residual discretion, are reflected in the extract from the recommendation memorandum at [32] above and the notification of the decision not to refer the applicant’s request for ministerial intervention extracted at [33] above.

39    There are some internal inconsistencies in the Guidelines. For example, despite the fourth purpose outlined above, s 12 states:

My powers to intervene in an individual case, where I believe it is in the public interest to do so, exist whether or not the case is brought to my attention in the manner described above, as long as a decision has been made by a relevant review tribunal and that decision continues to exist (for example, the review tribunal decision has not been overturned by a court).

I may consider intervening in cases where the circumstances do not fall within the unique or exceptional circumstances as described in section 4 of these guidelines, if I consider it to be in the public interest. Where I believe it is appropriate, I will seek further information to help me to determine whether to consider intervening in a case.

40    Section 4 of the Guidelines describes the kind of cases which the Minister instructs should be brought to his attention (with the factors on which the applicant relies highlighted in bold):

4. Unique or exceptional circumstances

Cases 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:

•    strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, 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

•    circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case

•    the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control

•    a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country

•    the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.

41    Section 5 then instructs officers about the material or information which should be brought to the Minster’s attention on any referral:

5. Other relevant information

For all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following:

•    circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations

•    circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme

•    whether the continued presence of the person in Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia’s international relations

•    whether there are character concerns in relation to the person, particularly concerns related to criminal conduct

•    information about a person’s history of compliance with Australian laws, including migration laws, such as:

•    any offence or fraud against the migration or citizenship legislation

•    any failure to comply with their visa conditions

•    any periods as an unlawful non-citizen in the community

•    their history of cooperation and engagement with the department to resolve their immigration status, particularly in relation to identity and travel documents

•    details of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case

•    the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.

42    Section 5 prescribes a process which in its terms operates after it has been decided that a case falls within the Guidelines and should be referred to the Minister. It instructs officers about what additional material should form part of the submissions to be placed before the Minister.

Applicant’s argument on serious question

43    As I have noted, in Alfred, I recently considered the Guidelines and the materially similar power in s 417 of the Migration Act. In that decision I noted that Robertson J held in Jabbour that a decision of a departmental officer not to refer a request to the Minister for consideration could be subject to judicial review. I indicated that I respectfully agreed with his Honour’s view. That remains my opinion. The applicant in this proceeding is able to seek judicial review of the departmental officer’s decision. In Alfred at [30], I explained that if an officer deciding whether a request meets the Guidelines conducts an assessment that is “obviously irrational, or [has] omitted critical facts or representations”, remedies may be available on judicial review. Similarly where a case officer has “plainly misunderstood the Guidelines and misapplied them to the applicant’s circumstances”.

44    The difficulty for the applicant is to frame a challenge which focuses on the lawfulness of the officer’s approach, rather than its outcome. The applicant’s initial application looked very much like a challenge to the outcome alone, which is generally not an appropriate focus for judicial review. During the hearing, counsel refined the approach, and the argument which is said to raise a serious question to be tried can be summarised in the following way.

45    The applicant submits that there is a clear distinction between, on the one hand, the task to be undertaken by a departmental officer deciding whether to refer a request for ministerial intervention to the Minister and, on the other hand, the task to be undertaken by the Minster deciding whether to exercise the power conferred by s 351. The task to be undertaken by the departmental officer, it is argued, is not to form a view as to whether the power conferred by s 351 should be exercised by the Minister; the question is whether a case has “one or more unique or exceptional circumstances”, as set out in s 4, and is not inappropriate for the Minister to consider for a reason contained in s 7. The applicant acknowledges that some of the factors in the Guidelines have an evaluative aspect, and that there may be cases on which reasonable minds could differ. The applicant submits, however, that this is not such a case. Rather, it is said to be clear that one or more of the circumstances in s 4 of the Guidelines is engaged and, consequently, it was legally unreasonable for the Assistant Director to decide that the case should not be referred to the Minister, even if the Minister might have then decided not to exercise the power in s 351.

46    The applicant referred to [6] of his request for ministerial intervention, which, though lengthy, should be included:

When my daughter [redacted] was born we lived in Italy. I worked full time as an English language teacher and her mother, [redacted] stayed home with [our daughter]. Whilst I was working full time [my ex-wife] and I shared the night duties and I would often stay awake and feed and comfort [our daughter] so that [my ex-wife] could sleep. When [our daughter] was a toddler I formed the view that she was a fast learner. I would help with her language acquisition for English and Italian as we desired for her to be bilingual and also played guitar and piano with her. [Our daughter] was two and a half years old when we arrived in Australia and I became her primary care giver as her mother took on the role of working and studying. [Our daughter] and I had a routine whereby we would wake up and have an early breakfast together. I would often take [her] to local parks so that she could be around other children. As we have no family in Australia, I wanted to make sure she was socialising with other children. We would also often visit the local library for story time, go to music and dance class, playgroups and other parent meet-ups. Sometimes we would go to local child friendly cafes. I taught her how to read and write. Arts and crafts projects were part of our daily routine. We frequently visited the zoo and the museums in Melbourne several times a week with our annual passes. I taught her about the world around us and nature and from this early age she has always maintained her keen aspiration to be a vet when she grows up. We have maintained good contact with each other over the last year and a half and she looks forward to our communication. I speak with [her] at least twice a week and more through the holidays and we have never missed a call. There has been good cooperation between myself and [her] mother and we all maintain our contact absolutely in accordance with family court and all other court orders. The family court judge with all parties involved agreed to this contact for now due to my unique circumstances being in detention. Our communication has been very positive for [our daughter]. My family lawyer has said that it would be fair and reasonable for me to meet our daughter at a centre convenient for her mother to allow contact with me in a suitable environment. I would like this opportunity to slowly increase the contact with [my daughter] in accordance with all relevant court orders and I believe that this is truly what is best for our daughter. I would very much like to be in the community to further establish the relationship with [our daughter]. After losing a son and not seeing [our daughter] for a while, I believe it is so important for us to see each other again as soon as possible. I love [our daughter] dearly and miss her so much, she is everything to me.

47    The applicant submits that, with this background, it was “bizarre” to conclude that his case did not have one or more of the exceptional circumstances contained in the Guidelines, in particular the first bullet point in s 4.

48    The applicant submits that the reasons contained in the recommendation memorandum to the Assistant Director go far beyond the kind of assessment required for referral. The applicant referred to the following passage from the memorandum, extracted above, which he submits reflects “the kind of assessment that a tribunal might make on merits review … rather than assessing whether there are circumstances in this case that are sufficient to bring it within the guidelines”:

The best interests of the child (as outlined in the above provisions) need only be a, rather than the, primary consideration and may be balanced by countervailing considerations. The Australian Government’s view is that the maintenance of the integrity of Australia’s migration system, which reflects Australia’s sovereign right to enforce its migration laws against unlawful non-citizens, may be such a countervailing consideration.

49    It may be that the alleged error is better characterised as a misunderstanding of the task imposed by the Guidelines, rather than unreasonableness. Counsel is not to be criticised for that, as he only saw the recommendation memorandum shortly before the hearing. Equally no criticism is directed at the respondents. As I have explained, the matter came on urgently and the Court is grateful for parties’ cooperation in providing the relevant materials.

50    Whether or not the alleged error might be better characterised as a misunderstanding of the task imposed by the Guidelines, the applicant submits there are different possible bases for unreasonableness, referring to Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, and undertaking a form of assessment that went far beyond what the Guidelines require is a form of unreasonableness, even if it might also be characterised as a misunderstanding of the task.

Applicant’s argument on balance of convenience

51    The applicant submits that, if an injunction is not granted, it will be difficult for him to conduct this litigation from the United Kingdom, amidst the distress of having been removed and without work or financial resources. The existence of a substantive application before the Court relating to whether he may be permitted to remain in Australia is said to be a powerful argument in his favour on the balance of convenience.

52    The applicant submits that if he were to succeed in his application for judicial review and on remitter have his request referred to the Minister, and then be granted a visa, he will have been absent from Australia for a significant period of time, making it more difficult for him to sustain contact with his daughter. The applicant submits that this concern is exacerbated by the COVID-19 pandemic, because even if he is ultimately granted a visa it may be some time before he is able to return to Australia. I take judicial notice of the fact that the COVID-19 situation is currently graver in the United Kingdom than in Australia, and the applicant submits that this is also relevant to the balance of convenience.

53    Finally, the applicant submits there would be no serious inconvenience to the Minister if the injunction is granted. With the respect to the cost of keeping the applicant in detention, the applicant suggested that the Minister could avoid that cost by granting him a visa or making a resident determination.

The Minister’s response in summary

54    The Minister went into some detail about the applicant’s history of offending and visa applications that ultimately led to the present application. Some of this has already been referred to, but it bears restating in chronological form:

(a)    On 17 July 2017, the applicant signed a Diversion Plan acknowledging that he had been charged with and accepting responsibility for one count of recklessly causing injury, three counts of unlawful assault, and one count of failing to stop a motor vehicle on request. The applicant accepted the conditions of the Plan, being that he write a letter of apology to a person I infer to be the parent the applicant was charged with assaulting at his daughter’s school, be of good behaviour for one year, and continue mental health treatment as directed.

(b)    On 1 August 2017, the Magistrate’s Court of Victoria issued a final intervention order prohibiting the applicant from committing family violence.

(c)    On 25 August 2017, a delegate of the Minister cancelled the applicant’s Subclass 573 Higher Education Sector visa.

(d)    On 11 September 2017, the Subclass 573 Higher Education Sector visa having elapsed, the applicant applied for a Bridging visa E.

(e)    On 21 September 2017, the applicant received a notice of intention to consider to refuse to grant the Bridging visa E.

(f)    On 15 November 2017, the applicant received a letter from the Department of Immigration and Border Protection stating that a delegate of the Minister had decided not to refuse his application for a Bridging visa E. The letter contained a warning in relation to future conduct.

(g)    On 16 November 2017, the applicant was granted a Bridging visa E. The record and notice of decision states that the applicant had “indicated he [would] make arrangements to depart if released on a BVE” and, consequently, the decision-maker was satisfied that the applicant met the criterion for grant of a visa under Sch 2 cl 050.212(2) of the Migration Regulations 1994 (Cth) (“An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia”).

(h)    On 20 November 2017, the Tribunal set aside the cancellation decision of 25 August 2017, noting the applicant was deeply remorseful and accepting that his behaviour was caused in part by the distress he suffered upon the death of his son.

(i)    On 27 January 2018, the applicant was charged with contravening a family violence final intervention order. The charge sheet states:

The accused at [redacted] on 25th January 2018 being a person against whom a family violence intervention order was made pursuant to the Family Violence Protection Act, and having been served with a copy of such order or had an explanation of the order given to him in accordance with section 96 (Full Order) of the Act did contravene that order by controlling and yelling at the Protected Person.

A further charge is recorded in similar terms, but in respect of 26 January 2018.

(j)    On 28 January 2018, the applicant entered a bail undertaking the conditions of which included not contacting or communicating with the protected persons.

(k)    On 1 February 2018, the applicant was again charged with contravening a family violence final intervention order. The charge sheet states:

The accused at [redacted] between 29/01/18 and 30/01/18 being a person against whom a family violence intervention order was made pursuant to the Family Violence Protection Act, and having been served with a copy of such order or had an explanation of the order given to him in accordance with section 57 (Interim Order) of the Act did contravene that order by sending x2 text messages and x3 emails to the Protected Person.

(l)    On 1 February 2018, a delegate of the Minister decided to cancel the applicant’s Bridging visa E. It was this decision which was affirmed by the Tribunal on 28 June 2018, an application for judicial review of the decision of the Tribunal being dismissed on 21 March 2019.

(m)    On 13 September 2018, the charges brought in January and February 2018 were adjourned without conviction to 11 September 2020.

55    It is appropriate to observe at this point that, seen in context, I do not accept the breach of the family violence intervention order with which the applicant was charged on 1 February 2018 was a “technical breach”. In any event, both the record of the delegate’s decision to cancel the applicant’s visa and the reasons of the Tribunal make it clear the grounds for the cancellation of the visa were the 27 January 2018 charges. The applicant’s then partner’s evidence to the Tribunal made it clear his conduct over this period caused her real fear and anxiety.

56    Against this background, the Minister’s response to the applicant’s submissions about the task undertaken by the departmental officer who assessed the applicant’s request for ministerial intervention is that “the case officer was simply doing a thorough job”. The Minister submits that assessing requests for ministerial intervention is not a “tick the box” exercise and it is entirely appropriate for such an officer “to consider in detail the circumstances of the matter” in deciding whether the Guidelines are engaged. The Minister submits that it was open to the departmental officer to consider the matters raised in the recommendation memorandum, and the decision not to refer the applicant’s request to the Minister cannot be characterised as legally unreasonable. Relying on Jabbour, the Minister also submits that the recommendation is not a statement of reasons and this Court should not be astute to discern errors in it.

57    With respect to the balance of convenience, the Minister submits that the applicant would be able to pursue his visa aspirations, including prosecuting this proceeding, from the United Kingdom. In response to a question from the Court, the Minister’s representative confirmed that, in the exercise of the discretion under s 351, the Minister could issue a visa to the applicant even if the applicant is in the United Kingdom, and appeared to accept that the visa would need to permit the applicant to travel to, enter and remain in Australia. The Minister also submitted there is some cost involved in keeping the applicant in detention. The applicant’s response to this last point has already been noted.

RESOLUTION

58    The argument made on behalf of the applicant about the nature of the alleged error in the approach of the recommending officer and therefore in the decision of the determining officer is not without merit. The recommending officer does go into considerable detail in explaining why the recommendation is that the applicant’s case does not fall within the Guidelines. I accept that some of the expressions used, and the matters addressed, might also be found in any statement of reasons for the refusal to exercise the power under s 351 favourably to the applicant. However, the fact there is an overlap does not itself indicate error.

59    Four points tend in my view to suggest that the principal argument on the application will encounter material difficulties. First, it seems to me a rational explanation for the detail in the recommending officer’s document is that it is just that: a recommendation. It is in the nature of a brief to the decision-maker. That may well explain why the reasoning is as detailed as it is: the function of the recommending officer is to assist the determining officer and to ensure the determining officer turns her or his mind to the necessary and appropriate range of factors the Guidelines require.

60    Second, the criteria in s 4 of the Guidelines have obvious evaluative aspects: the entirety of s 4 is described as “unique or exceptional circumstances”, both qualitative terms. Further, key factors within s 4 such as “compassionate” are qualitative. Reasonable minds may differ on what circumstances are “compassionate”. The same can be said of other descriptions in s 4 – “exceptional … benefit”; “clearly unintended consequences”; “personal characteristics provide a sound basis for believing”; “significant threat”; “necessary and foreseeable consequence”. For a recommendation and decision to be made, a departmental officer must evaluate the material and exercise her or his own judgment. To do so in detail rather than peremptorily may reflect good administrative practice, not legal error.

61    Third, the qualitative aspects of the first dot point in s 4 (which is the most prominent in the applicant’s submissions and his ministerial request) are set at a high level – “serious, ongoing and irreversible harm and continuing hardship”. Thus, not only is the assessment a qualitative one, but there is a significant threshold imposed. It is not the case, as the applicant’s submissions appeared at times to suggest, that the simple fact that there is a child who will be affected, and therefore the best interests of that child are raised, necessarily brings a case within s 4. For a recommendation and decision to be made, a departmental officer must decide whether the threshold as described in the first dot point in s 4 is met. Again, to do so in detail rather than peremptorily may reflect good administrative practice, not legal error.

62    Fourth, it is not suggested there is anything irrational in the reasoning of the recommending officer, or in the adoption of that recommendation by the determining officer. Therefore, in terms of legal unreasonableness, the focus is really on the outcome of the assessment. As the recommendation is expressed (and, I infer, adopted by the determining officer), it is unlikely a Court would conclude that no reasonable departmental officer could have reached the conclusion that the applicant’s circumstances were not unique or exceptional in the way the Guidelines require.

63    Therefore while the matters raised in the originating application, and in argument, might be described as a “serious question” in the sense of being arguable, for the reasons set out above, the legal argument has real difficulties. The probability that at trial the applicant will be held entitled to the relief he seeks is, in my respectful opinion, low. While I accept, as counsel for the applicant submitted, that the binary process under the Guidelines means the role of the determining officer is a “grave” one, that is why in my respectful opinion Robertson J’s decision in Jabbour is correct – the way in which the interests of a person are affected by a decision made under the Guidelines is why the decision is properly subject to the supervisory jurisdiction of this Court.

64    Against this, while at first sight the balance of convenience might be assumed to support the grant of an injunction to restrain removal, I am not persuaded that is the case in the somewhat unusual circumstances disclosed by the evidence in this proceeding.

65    I accept the applicant’s distress at the prospect of being removed to the other side of the world from his daughter is genuine. I accept he has, at least, a genuine aspiration to spend time in person with her, and to be involved in her life. I accept he genuinely believes this will be more difficult to achieve if he is located in the United Kingdom.

66    However, given the reality of his circumstances in Australia, I am not persuaded there is a qualitative difference in the short and medium term in the nature and extent of the interaction he can have with his daughter. The applicant is in immigration detention. If this interlocutory application were granted, the Court is required to act on the basis he would remain in immigration detention until this proceeding was concluded. Despite his counsel’s submission, although the Minister has a power to grant the applicant a visa which would result in his release from detention (see s 195A) there is no basis in the evidence to find there is any reasonable prospect that power will be exercised. Therefore, for the purposes of this application, the counterfactual is that the applicant will remain in immigration detention for the duration of this proceeding.

67    As extracted above, in his request for ministerial intervention, the applicant described his relationship with his daughter as follows:

We have maintained good contact with each other over the last year and half and she looks forward to our communication. I speak with [her] at least twice a week and more through the holidays and we have never missed a call. There has been good cooperation between myself and [her] mother and we all maintain our contact absolutely in accordance with the family court and all other court orders. The family court judge with all parties involved agreed to this contact for now due to my unique circumstances being in detention. … My family lawyer has said that it would be fair and reasonable for me to meet our daughter at a centre convenient for her mother to allow contact with me in a suitable environment. I would like this opportunity to slowly increase the contact with [our daughter] in accordance with all relevant court orders and I believe that this is truly what is best for our daughter.

68    In oral submissions, the Minister stated that no visitors are currently able to attend detention centres. The recommendation memorandum states that “[t]here is no evidence [the applicant’s] ex-wife and child have ever visited him in the detention centre”. That is over a period of two years.

69    Even if the COVID-19 restrictions were lifted, there is no basis for the Court to find there is a reasonable prospect the applicant’s former partner will bring his daughter to see him in person. As the Minister submitted, the applicant may hope that will occur, but it is no more than an aspiration.

70    In other words, the modes of communication with his daughter are likely to remain those which can also be undertaken from the United Kingdom. Indeed, the applicant’s freedom in the United Kingdom may in fact allow him better quality access to telephone and internet. The Family Court orders will remain in place, and I see no basis in the evidence to find the applicant’s former partner would seek to deny him the kind of contact he has had to date, or would be likely to contravene the orders of the Family Court. Indeed, her evidence as extracted above suggests she may be comfortable with increased communication if there is no chance of personal encounters between her and the applicant.

71    Whether or not the applicant is able to retain legal representation, this proceeding can be prosecuted by him from the United Kingdom. Over the last three months this Court has conducted hearings, including witness trials, entirely through the use of Microsoft Teams. Many litigants have had to deal with final hearings, and appeals, occurring in this form. It may be that if the applicant retains counsel, by the time the final hearing occurs, counsel can appear in person. If not counsel can appear by Microsoft Teams. If the applicant is self-represented, he can appear by Microsoft Teams from the United Kingdom. If he remained in Australia by reason of an interlocutory injunction, and in immigration detention, he would have had to conduct his proceeding in that way as well.

72    Although counsel submitted the remoteness and distress would be detrimental to contact with the applicant’s daughter, I do not consider that is necessarily the case. Many families maintain good and loving connection while located in different parts of the world, all the more so during times such as the current pandemic. Modern forms of communication provide an improved substitute not available to previous generations, who may also have been widely geographically separated. The applicant will be able to look for work in the United Kingdom and it is not difficult to see how an income might assist him in providing for his daughter in ways that may be positive for their relationship. Likewise, the fact the applicant will have his freedom means, as I have noted, that he may have more frequent and better quality access to forms of communication with his daughter, and more flexibility in negotiating contact with his former partner without having to navigate the strictures of immigration detention.

73    I consider, for the purposes of this application, the Court should be cautious in speculating about what the circumstances will be beyond the end of this proceeding. On the basis of the assurances given on behalf of the Minister, I consider it is appropriate to proceed on the basis that if the next four major steps in this process all fall in the applicant’s favour (success in this proceeding, no successful appeal, remitter to the Department and a positive decision to place the applicant’s case before the Minster, and then a positive decision by the Minster to grant a visa) any visa granted to the applicant will enable him to return to Australia as a lawful non-citizen. The power conferred on the Minister under s 351 is a personal power to “substitute for a decision of the Tribunal under section 349 another decision … whether or not the Tribunal had the power to make that other decision”: subs (1). Subsection (2) provides:

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.

74    In other words, the Minister has a broad discretion to grant a visa even if certain conditions for the grant are not satisfied.

75    There is no basis to assume that some charade would occur by which a visa of no reasonable utility to the applicant would be granted. However, those four steps only need to be set out to indicate the degree of speculation involved in the proposition that the point of the grant of a visa will in fact be reached. Therefore, my reasoning on the balance of convenience has focused on the balance of convenience as it relates to the outcome of this proceeding – which at best for the applicant is only the first of the four steps I have described.

76    This is also a situation where the applicant has had a full opportunity, which he has taken, to challenge the cancellation of his visa and to explain why his conduct which occasioned the cancellation should be characterised more mildly than the cancellation decision would suggest. He has also fully ventilated an application for a protection visa based on some of the considerations which he has raised in his ministerial intervention application, and he has challenged the refusal of that visa. Contrary to counsel’s submissions, I do not consider this is a situation where the refusal of injunctive relief reflects poorly or negatively on the administration of justice. The applicant has had ample access to justice, at merits and supervisory levels. He will, as I have explained, be able to pursue this proceeding from the United Kingdom is he so chooses.

77    Nor is this a case where a person is subject to imminent removal but asserts she or he has not been given an opportunity to have a visa application properly considered and determined: cf XAD by her Litigation Guardian XAE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1550.

78    I note also this is not a situation where the applicant is being removed to a country where there is a real risk to his life, liberty or personal safety, nor is he being removed to a country where there is a real risk he may not have access to adequate means of subsistence, or adequate access to health care. These are all matters which otherwise might also be of some considerable weight in determining where the balance of convenience lies.

79    The applicant did raise the fact of the current COVID-19 pandemic, and how this might affect his removal. He raised this in his ministerial intervention submission in a somewhat different way. Whatever its relevance, if any, to whether he should be granted a visa under s 351 (and that was not a matter relied on or developed in the applicant’s submissions), in my opinion it is a matter clearly relevant to the balance of convenience. If there are additional, significant risks to the applicant’s health which are posed by removing him to the United Kingdom while the COVID-19 pandemic continues, then this may be a factor which needs to be weighed in the balance of convenience. However, having considered the evidence in Mr Brown’s second affidavit, I am satisfied that appropriate provision has been made for the applicant’s return to the United Kingdom. No evidence was presented that the applicant faces any elevated risk of contracting COVID-19, such that returning to a society where the disease is still spreading poses a disproportionate risk to the applicant that should affect the balance of convenience on this application.

80    Any grant of interlocutory relief by the Court will interrupt and override the course envisaged, and required, by the legislative scheme in the Migration Act. There must be a reasonable justification for the Court’s orders to interrupt the course which Parliament intends to occur, once a person has exhausted her or his avenues to secure a visa, including review and appeal. The purpose of the grant of interlocutory relief is to ensure that the Court can, at trial, do justice between the parties in the matter which is before it. As a Full Court of this Court explained, the nature and extent of interlocutory orders which might be made under s 23 of the Federal Court of Australia Act 1976 (Cth) may depend on what the controversy is between the parties: see Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; 34 FCR 169. This is not an application of that kind, because the interlocutory relief sought has no substantive connection with the controversy between the parties in the proceeding, nor with the final relief sought. This is, rather, a Tait kind of application: see Tait v The Queen [1962] HCA 57; 108 CLR 620. It is not however the kind of Tait application which, for a period, became rather frequent in relation to the transfer of individuals from Nauru: see FRM17 v Minister for Home Affairs [2019] FCAFC 148. In those cases, interlocutory relief was found to be appropriate to preserve, or avoid further risks to, the health (and sometimes the lives) of the individuals who sought to bring proceedings where the cause of action was an allegation of negligence in relation to their physical and mental health on Nauru. The very state said to have been neglected by the respondents was said to be at further risk without interlocutory relief. That is also not this case. In my opinion the preservation of the subject matter of this proceeding does not require interlocutory relief to be granted.

81    Therefore, while the Court recognises the genuine distress and apprehension the applicant has about having to return to the United Kingdom, there is an insufficient prospect of injustice being caused to the applicant to justify interference with the lawful operation of the legislative scheme under the Migration Act, insofar as it requires the removal of persons in the circumstances of the applicant “as soon as reasonably practicable”: see generally s 198.

82    The interlocutory application will be refused, with costs.

Associate:

Dated:    12 June 2020