FEDERAL COURT OF AUSTRALIA

DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

2.    The applicant is to 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

PERRY J:

1.    INTRODUCTION

1    On 23 December 2019, the applicant, Ms [DCM], requested that the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) exercise his power under s 351(1) of the Migration Act 1958 (Cth) (the Migration Act) to substitute a more favourable decision for a decision of the (then) Migration Review Tribunal (the MRT). The decision of the MRT given on 27 August 2013 had affirmed a decision of the Minister’s delegate to refuse to grant her a Resolution of Status (Subclass 851) visa.

2    As I explain below, this was Ms [DCM]’s fourth request for ministerial intervention. On 10 January 2020, the second respondent, the Assistant Director, Ministerial Intervention, Department of Home Affairs (the Assistant Director), signed a minute entitled “Assessment of repeat request for intervention in accordance with the Minister’s guidelines on ministerial powers (sections 351, 417, 501J)” (the Minute) in which, after giving short reasons, she declined to refer the repeat request to the Minister.

3    Ms [DCM] contends that the Assistant Director’s “decision” was susceptible to judicial review and legally unreasonable, relying upon the reasoning in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 (Jabbour). The Secretary made a formal submission that Jabbour was wrongly decided but did not allege that the decision was plainly wrong.

4    For the reasons set out below, the applicant has not established that the Assistant Director’s “decision” was legally unreasonable and the application must be dismissed.

2.    JURISDICTION

5    It was common ground that the signing of the minute by the Assistant Director was done in the exercise of non-statutory executive power and not under the Migration Act (Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457 (Alfred) at [13]-[14] (Mortimer J) agreeing with the statement by Robertson J in Jabbour at [19]). As such, the ouster clause in s 476A(1) of the Migration Act was not engaged (first respondent’s outline of submissions (ROS) at [9]; Jabbour at [26] (Robertson J)).

6    Initially, the applicant sought only declaratory relief. However by her further amended application dated 15 June 2020, Ms [DCM] amended her prayer for relief to include an order in the nature of certiorari that the “decision” be quashed, a writ of mandamus requiring the Assistant Director to determine her request according to law, an injunction restraining the Minister from relying on the “decision”, and prohibition restraining the respondents from “enforcing the decision”. Following those amendments, the Secretary accepted that the Court has jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) on the ground that the applicant seeks constitutional writs against an officer of the Commonwealth and not bare declarations (ROS at [8]): Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791 (Davis) at [8]-[10] (O’Callaghan J). While the Secretary contended that the applicant’s claim for the constitutional writs was misconceived, he did not submit that the claim was “merely colourable” (ROS at [8]).

3.    BACKGROUND

7    Ms [DCM] is a citizen of Fiji of Indian ethnicity. She arrived in Australia in the early 1990’s accompanied by her mother, father, and two siblings, and has resided continuously here since that time. Aside from Ms [DCM] and another brother, the whole family migrated to Australia under the Skilled Migration program.

8    As earlier mentioned, Ms [DCM] made three prior requests for ministerial intervention as follows.

(1)    First on 20 June 1996, Ms [DCM] requested that the Minister exercise his power under s 417(1) of the Migration Act so as to substitute a decision in her favour for an earlier decision of the then Refugee Review Tribunal (RRT) on 14 February 1996 affirming a decision of the Minister’s delegate to refuse to grant her a Protection (Class 866) visa (the RRT decision) (AB48). On 27 June 1997, the Minister decided not to exercise that power. It is common ground that neither the request nor this decision were available to the Department or the applicant (AB193).

(2)    Secondly, by a letter dated 29 August 2013 (and received on 2 September 2013), Ms [DCM] requested that the Minister exercise his power under s 351(1) of the Migration Act to substitute a decision more favourable to her, for the Migration Review Tribunal (MRT)’s decision given on 27 August 2013 affirming the Minister’s delegate’s decision to refuse to grant her a resolution of status visa (AB1). I note that the Departmental submission to the Minister dated 9 March 2016 states the following.

(a)    The Minister may wish to consider granting a Permanent – Former Resident (Subclass 151) visa and that a temporary visa option had not been offered as, on the available information, it was considered unlikely that Ms [DCM] would meet the requirements for the grant of a further visa onshore (AB 47);

(b)    “[b]oth Mr and Ms [DCM] claim to provide essential care for their elderly and frail Australian citizen parents”, as well as providing assistance for their sister’s children whose father had passed away (I note that the reference here to Mr [DCM] is a reference to the applicant’s brother who was also making a request for Ministerial Intervention under s 351(1) at this time on the basis of similar claims) (AB40 at [3]);

(c)    Ms [DCM] “claims that she cares for her elderly and frail citizen parents … [who] are entirely dependent on her for all household chores and she frequently accompanies them to medical appointments. Ms [DCM] has advised that her mother has diabetes and walking difficulties (no evidence regarding her parents medical conditions or frailty has been provided)” (AB44 at [19]); and

(d)    Ms [DCM] was working part-time at an aged care centre 34 hours per week, but had not indicated who cared for her family members when she was working (AB45 at [25]-[26]).

              The Minister declined to exercise the power under s 351(1) on 17 March 2016 (AB42).

(3)    Thirdly, by a letter dated 22 June 2016 (and received on 27 June 2016), Ms [DCM] (then unrepresented) again requested that the Minister exercise his power under s 351(1) to substitute a more favourable decision for the MRT decision (AB59). In the letter, the applicant stated, among other things, that “[a]s my parents are elderly aged 74 and 72 years, they can’t live without me and my brother who both have been asked to depart”, and her mother had medical problems, panic attacks and serious anxiety as a result of their impending departure (AB60-61). She also said that with her qualifications in aged and disability care, she had been providing her mother “all the medical support in terms of looking after her” and that her “sick mother requires these support on an ongoing basis from me. My departure will create undue hardship to my sick mother” (AB62). She further submitted that her qualifications and facility in different language dialects placed her in a position to contribute to the community at large in the provision of aged care and disability services (AB62-63). On this occasion the Minister made no decision under s 351(1) whether to consider exercising the power or in the exercise of the power. Rather, in accordance with the guidelines issued by the Minister, the request was not referred by the Department to him (AB131).

9    The fourth and most recent request which is the subject of this proceeding was made by letter dated 20 December 2019 (and received on 23 December 2019) from Ms [DCM]’s migration agent. This letter requested that:

… the Minister exercises the discretionary power under sections 351 and 417 of the Migration Act 1958 to substitute the Migration Review Tribunal’s decision dated 28 August 2013 for a more favourable decision enabling the Applicant to apply for an onshore care visa after being granted a three-month Visitor visa. The unique and exceptional circumstances we have mentioned in this request did not exist at the time of the previous Ministerial Intervention requests.

(AB141)

(I note that while the letter refers both to ss 351 and 417 of the Migration Act, as the applicant requested only that the Minister substitute a more favourable decision for the decision of the MRT, the relevant provision is s 351 only.)

10    The letter submitted among other things that:

(1)    Ms [DCM] was currently providing full-time care and support to her mother who was unable to readily stand up and walk;

(2)    her father was also of old age, frail and suffering from several ailments; and

(3)    Ms [DCM] lives with her parents who “completely depend on her for day-to-day care” (AB136).

11    The letter also submitted that:

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

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

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

(AB140–141)

12    This request was accompanied by statutory declarations from family members, together with current and previous medical documentation relating to Ms [DCM]’s parents.

13    On 10 January 2020, the Assistant Director signed the Minute deciding not to refer the request to the Minister in line with the Minister’s guidelines on ministerial powers (sections 351, 417, 501J) (the s 315/417 Guidelines). In the Minute, the Assistant Director summarised the previous requests and explained that:

Current Ministerial intervention request

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

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

…

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

…

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

(AB 194)

4.    GENERAL PRINCIPLES

14    As earlier mentioned, the analysis adopted by Robertson J in Jabbour was central to the applicant’s case. In common with the present application, that case concerned an application for judicial review of a “decision” by a Departmental officer not to refer Ms Jabbour’s request for Ministerial intervention under s 351 to the Minister on the ground that that “decision” was legally unreasonable (Jabbour at [9]-[12]).

15    While Robertson J held that the applicant had not established legal unreasonableness, his Honour accepted that “… at the level of principle the non-statutory administrative action on the part of [the Secretary] is amenable to judicial review for legal unreasonableness” (Jabbour at [91]). Robertson J further explained that:

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

16    In so holding, his Honour held that the nature of the administrative action in question here “does not take it out of the mainstream of government actions” and that, while involving the exercise of the non-statutory power, “the circumstances are ‘more closely related to justice to the individual than with political, social and economic concerns’: South Australia v O’Shea (1987) 163 CLR 378 at 387 per Mason J” (Jabbour at [92]).

17    Importantly, Robertson J held that, even though requests for the Minister to consider exercising the powers under ss 351 and 417 do not attract procedural fairness (as held in S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 (Plaintiff S10/2011)), it does not follow that there could be no judicial review for legal unreasonableness of such “decisions”: Jabbour at [81] and [92]. Rather, as the Secretary submitted, Robertson J appeared to consider that a legally unreasonable failure to refer a request to the Minister would be characterised as a constructive failure to exercise jurisdiction (Jabbour at [82]).

18    As to the content of any legal requirement of reasonableness in such a case, Robertson J held that:

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

19    However, as his Honour cautioned, “[b]ecause the administrative action is non-statutory, the boundaries of power may be more difficult to define and the evaluation of whether the action taken was within those boundaries cannot be conducted by reference to the relevant statute, its terms, scope and purpose” (at [104]). In this regard, Robertson J emphasised that it was for the Departmental officer to conclude, as a matter of evaluation or judgment, whether the circumstances relied upon by a person requesting Ministerial intervention amounted to unique or exceptional circumstances and a significant change of circumstances in line with the Guidelines (at [114]-[115]). Similarly in Davis, O’Callaghan J held that:

39. … 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.

(See also e.g. CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 (CPK20) at [60] (Mortimer J)).

20    However, Robertson J in Jabbour considered that in certain circumstances, a misconstruction of Ministerial policy may lead to a finding that the decision is illogical and perverse even where, as here, the decision-maker is not bound to take the policy into account:

89. It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else: see Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208 per French and Drummond JJ. This may be an example of “an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria”: Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 at 453; appeal on other grounds dismissed in Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162.

(emphasis added) (See also XA v Minister for Home Affairs [2019] FCAFC 166 (XA) at [65] (Kerr J).

21    In other words, where a decision-maker purports to apply a policy which has no binding status, a “more radical” misconstruction or misunderstanding of the policy is required in order to establish legal unreasonableness, than in the case of a policy which the decision-maker is bound to take into account: Minister for Foreign Affairs v Lee [2014] FCA 927; (2014) 227 FCR 279 at [59]-[60] (Robertson J) (in the context of analysing the decision in Minister for Immigration and Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 (Gray)). Nor in any event, are Ministerial policies to be construed and applied “with the nicety of a statute” (Gray at 208 (French and Drummond JJ)).

22    As to the approach to be adopted in inferring error from a statement of reasons where there is no statutory obligation to provide reasons, importantly Robertson J explained that:

112    The second respondent’s document is not a statement of reasons in the familiar form, whether under statute or otherwise. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [25] French CJ, Bell, Keane and Gordon JJ said:

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

(emphasis added) (footnotes omitted)

23    This contrasts with the position where an administrative decision-maker is under an obligation to provide a statement of reasons setting out the findings on material facts and reasons for decision: see e.g. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5] (Gleeson CJ); Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554 at [50] (the Court).

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

25    Mortimer J in Alfred at [22] and CPK20 at [43] agreed with Robertson J’s approach in Jabbour. On the other hand, in Davis at [4], O’Callaghan J queried the correctness of Robertson J’s approach. Nonetheless, neither in Jabbour nor in later decisions has a challenge to a “decision” by the Department not to refer a request for Ministerial intervention to the Minister succeeded. This is not surprising given the considerable difficulties in establishing that a decision of this kind is legally unreasonable, as I have indicated.

26    As earlier mentioned, the Secretary submitted that Robertson J’s analysis in Jabbour was wrong but did not submit that it was plainly wrong (ROS at [21] and annexure). As such, the Secretary accepted that, as a matter of comity, this Court should follow the decision. In this regard, Mortimer J explained in Alfred that:

22. … Comity serves institutional purposes, “uphold[ing] the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges”: see Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [74]-[76] (affd [2004] FCAFC 114; 138 FCR 475), cited with approval in Batterham v QSR Limited [2006] HCA 23; 225 CLR 237 at [73] and Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162; 255 FCR 96 at [93].

5.    THE MINISTERIAL GUIDELINES AND THEIR STATUTORY CONTEXT

27    As earlier mentioned, guidelines have been promulgated as to the manner in which the Department is to deal with requests such as those made by Ms [DCM]. A copy of the s 351/417 Guidelines, together with the Minister’s guidelines on the ministerial intervention power under s 48B of the Migration Act issued on 1 July 2019 (the s 48B Guidelines), were annexed to the affidavit of Brooke Marie Griffin, lawyer, affirmed on 30 June 2020 (BMG-1 and BMG-2 respectively). These guidelines have no statutory force: Alfred at [11] (Mortimer J).

28    The Minister’s powers in ss 351 and 417 of the Migration Act nonetheless provide the context in which the s 351/417 Guidelines were issued. These provisions confer a wide power which calls for an evaluative judgment to be made, as the Secretary submitted (ROS at [24]). In essence, s 417 confers a non-delegable, non-compellable power on the Minister to substitute for a decision of the Tribunal, a decision that is more favourable to the applicant where the Minister “thinks that it is in the public interest to do so”. The power is also exercisable even if the Tribunal lacked power to make that decision. Section 351 is materially similar. The plurality observed in Plaintiff S10/2011 at [99(v)] with respect to the Minister’s powers under these provisions, that:

The expression ‘in the public interest’ can have no fixed or precise content and involves a value judgment often to be made by reference to undefined matters. Here the legislative supposition upon which the dispensing powers are conferred is that there will be cases in which the requirements which otherwise control the administration of the Act are not to dictate a particular outcome.

29    Furthermore, their Honours observed that “while the personal circumstances of an individual may be taken into account, they are not a mandatory relevant consideration” (S10/2011 at [99(vi)]).

30    The purpose and effect of the s 351/417 Guidelines themselves were considered by the High Court in Plaintiff S10/2011:

90. Three sets of guidelines were material. The first was applicable to the exercise of powers, inter alia, under s 351 and s 417, the second to s 48B, and the third to s 195A. The term “guidelines” is apt to mislead; their content is in the form of directions by the Minister. The first and third guidelines state as a purpose the desire of the Minister to inform departmental officers “when to refer a case to me so that I can decide whether to consider exercising such powers in the public interest”; and “to explain the circumstances in which I may wish to consider exercising my public interest powers [under s 351, s 417, s 195A as the case may be]”. The s 48B guidelines are said to be for use “when considering whether to forward to the Minister cases that the Minister may wish to consider when using the ministerial non-compellable and non-delegable power [under s 48B]”.

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

(footnotes omitted.)

31    Section 4 of the s 351/417 Guidelines relevantly provides, under the heading “Cases which should be brought to [the Minister’s] attention”,:

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

…

•    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

(emphasis added)

32    On the other hand, under the heading “Cases that should not be brought to my attention”, the s 351/417 Guidelines state that cases which are inappropriate to consider include “[c]ases which do not meet these guidelines for referral” (see s 7).

33    It was not in issue that the request presently under consideration was a “repeat request” as defined in s 10.2 of the s 351/417 Guidelines. Section 10.2 of the guidelines provided as follows:

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

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

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

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

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

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

(emphasis added)

6.    WAS THE ASSISTANT DIRECTOR’S “DECISION” LEGALLY UNREASONABLE?

6.1    Alleged unreasonableness in “finding” no significant change in circumstances (Ground 1)

6.1.1    The applicant’s submissions

34    In support of ground 1 the applicant submits that the Assistant Director’s “decision” lacks an evident or intelligible justification and is arbitrary because the facts demonstrated that her circumstances had significantly changed given the seriousness of the deterioration in her mother’s medical condition. In particular, the applicant alleged that her mother’s osteoarthritis in both knees and consequential inability to walk mean that she is “completely unable to completely [sic] daily tasks without assistance” and has “almost lost independent mobility” (applicant’s outline of submissions (AOS) at [31]). This was said to contrast with her mother’s circumstances at the time of the 2016 Ministerial intervention request where, while she experienced other medical issues, she was still able to freely walk and conduct basic tasks on her own (AOS at [31]). As a consequence, the applicant submitted that her mother now required comprehensive full-time care from the applicant in contrast to the position in 2016 (AOS at [31]). The applicant also submitted that her claims to be a full-time carer and relevant medical records were not taken into account by the Assistant Director, and that the Assistant Director “made an unwarranted assumption and medical opinion despite not being a qualified medical professional” and “disproportionately considered the mother’s medical conditions” (AOS at [25] and [26]).

35    The applicant also contrasted the letter from her mother’s general practitioner, Dr Kuldeep Sidhu, dated 20 June 2016 (Dr Sidhu’s first report) (AB96) which accompanied the 2016 request, with his letter dated 13 December 2019 (Dr Sidhu’s second report) (AB184) provided with the 2019 request. On this basis, the applicant submitted that:

While the previous letter from Dr Sidhu noted that her mother was indeed suffering from some medical issues, the most recent letter from Dr. Sidhu noted that her mother was suffering from significantly more severe medical conditions that were not present at the time of the Applicant’s previous request for Ministerial Intervention. These new conditions include mobility restrictions arising from osteoarthritis in both her knees; breathing difficulties arising from bronchitis, irregular heartbeat arising from atrial fibrillation, and; generalised anxiety with panic attack.

(AOS at [28]; emphasis added)

36    The second report by Dr Sidhu was also said to note, in contrast with his first report, that the applicant is her mother’s primary carer, providing daily care and support for her mother including showering, cooking and feeding (AOS at [28]). In addition, the applicant referred to the evidence of her sister in a statutory declaration dated 19 December 2019 that the applicant is a full-time carer to their parents, and that her mother “cannot stand up and can only walk with [sic] a very short distance with a walking stick” (AOS at [29]).

37    As a result, the applicant submitted that:

… the Second Respondent’s reasoning in the “Minute” that “She [the Applicant] now claims to care for her parents full-time and is no longer working but provides medical documentation which does not indicate any significant deterioration in her parents health” has “no logical connection” to the unequivocal medical evidence and statutory declarations included in the Applicant’s most recent request demonstrating a deterioration in the Applicant’s mother’s health (AB 194): SZMDS at [135]. It is clear that by fundamentally misunderstanding that health conditions which render the Applicant’s mother immobile constitute a significant change in circumstances, the Second Respondent has unequivocally misunderstood the characteristics of the request before them: Jabbour at [113].

(AOS at [35])

6.1.2    Ground 1 must be dismissed

38    Ground 1 must be dismissed.

39    The focus of this challenge was upon the Assistant Director’s statement of opinion that the applicant “now claims to care for her parents full time and is no longer working but provides medical documentation which does not indicate any significant deterioration in her parents’ health” insofar as this statement related to her mother’s health (AB194) (the impugned statement). The applicant has not established that this opinion was illogical or irrational for the following reasons.

40    First, to the extent that the applicant asks the Court to determine whether there was a significant deterioration in her mother’s health and/or a significant change in her circumstances for the purposes of the s 351/417 Guidelines, this was plainly a matter about which the Assistant Director was required to be persuaded: XA at [170] (Thawley J) (citing Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [64] (Gageler J); see also at [19] above.

41    Secondly, I agree with the Secretary that the applicant’s suggestion that the Assistant Director could not form an opinion on whether there had been a “significant deterioration” in her mother’s health unless she were a qualified medical practitioner is untenable. Assessments of this kind are undertaken every day by administrative decision-makers on the basis of the expert evidence before them, despite the decision-maker having no medical expertise. Nor do the s 351/417 Guidelines stipulate that any such expertise is required by the decision-maker where medical evidence is relied upon in support of a request for Ministerial intervention.

42    Thirdly, it is clear from the impugned statement on which ground 1 focuses that the Assistant Director clearly understood that the applicant “now” claimed to be her mother’s “full time” carer. The use of the word “now” in the statement makes it apparent that the Assistant Director was aware that this was a change in her circumstances. As to the latter, the Assistant Director’s Minute also referred to the applicant’s claims in her March 2016 request to be employed in the aged care sector, as well as providing “essential care” with her brother “for their aged Australian citizen parents”. As such, it is evident that the Assistant Director understood that the care rendered by the applicant to her mother at the time of that request was not full time care (AB193).

43    That being so, it was a matter of evaluation or judgment for the Assistant Director to determine whether for the purposes of the s 351/417 Guidelines the applicant’s claims (including as to her mother’s health and need for full time care) amounted to a significant change of circumstances and raised unique or exceptional circumstances. The difficulties in establishing that the “decision” lacked an evident and intelligible justification where such a broad and subjective evaluation must be made “is a virtually insuperable hurdle” for the applicant (Plaintiff M64/2015 at [56] by analogy). This is especially so where there was no obligation upon the Assistant Director to provide a statement of reasons and therefore the principles for the drawing of inferences where obligations are imposed for the preparation and content of reasons do not apply: see above at [22]-[23].

44    Fourthly and related to the last of these points, insofar as the applicant complained that the Assistant Director’s opinion was irrational because she did not elaborate upon her reasons for the view that there had been no significant deterioration in the applicant’s mother’s health, the submission with respect suffers from two flaws, each of which is fatal:

(1)    the onus lies upon the applicant to demonstrate jurisdictional error (Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ); and

(2)    there was no obligation upon the Assistant Director to give reasons and no obligations as to the content of any reasons if reasons were given, as they were in this case.

45    As such, it cannot be inferred from the absence of an explanation of all of the steps in the Assistant Director’s subjective reasoning process that there was no evident and intelligible foundation for her opinions. Equally and for the same reasons, there is no basis for inferring that the Assistant Director failed to have regard to all of the “evidence”.

46    It follows from these matters that, as the Secretary submits, the applicant could succeed only if the Assistant Director’s assessment was explicable only on the basis of some irrationality or misconception of the s 351/417 Guidelines. However, the evidence falls far short of establishing any such error. Contrary to the applicant’s submissions, it was plainly open to the Assistant Director to reach the view that the mother’s medical condition had not significantly deteriorated.

47    First, Dr Sidhu’s second report was very brief, relevantly listing her medical conditions without elaboration as follows:

48    Dr Sidhu further stated that Ms [DCM]’s mother suffers from a psychological condition described as “Anxiety with Panic Attacks” (AB184). However, the medical report failed to indicate the period over which the listed conditions persisted or how serious or debilitating the conditions were.

49    Secondly and as an aspect of this, it is far from self-evident that Dr Sidhu’s second report should be read as suggesting that breathing difficulties associated with bronchitis were continuing some two years after those difficulties were observed in 2017.

50    Thirdly, it is true that in his second report, Dr Sidhu referred to Ms [DCM]’s mother as suffering from osteoarthritis in both knees. However, his first report also stated that the mother had “OA (Osteoarthritis)” (AB96). As the Secretary submitted, it was therefore far from self-evident that the reference to this condition in the first report was confined to one knee.

51    Fourthly, while Dr Sidhu’s second report indicated that in November 2018, Ms [DCM]’s mother had suffered “Atrial fibrillation” with an “Irregular Heart Beat”, the medical evidence in support of the 2016 request had indicated that she had presented with “palpitations” in 2016 (AB98). As the Secretary submitted, it is clear from the extracts from the medical dictionaries annexed to the affidavit of Brooke Marie Griffin, lawyer, that a palpitation is an irregular heart beat and that an atrial fibrillation often involves an irregular heartbeat.

52    In the fifth place, while Dr Sidhu’s second report indicated that Ms [DCM]’s mother suffered from “a psychological condition” described as “Anxiety with Panic Attacks”, in her request for Ministerial Intervention dated 22 June 2016 Ms [DCM] had stated that her mother “has started having panic atacks [sic] in the middle of the night and has developed a very serious anxiety knowing about our departure” (AB61).

53    Given these matters, it was clearly open to the Assistant Director to form a view that there had been no significant change in Ms [DCM]’s mother’s medical diagnosis. The applicant’s submissions to the contrary must be dismissed.

54    Finally, the applicant’s exclusive focus on the Assistant Director’s view that the medical documentation did not indicate any significant deterioration in her parent’s health is itself misconceived. It is apparent that the Assistant Director also took into account that “[a]s Australian citizens, her parents, sister, brother, niece and nephew are entitled to services available to all Australian citizens. Her parents reside with her sister and children” (AB194). These are matters which may logically bear upon the extent of hardship which the parents would suffer if Ms [DCM] returned to Fiji. They indicate in other words that the Assistant Director turned her mind to the care and support services available to Ms [DCM]’s mother if Ms [DCM] were no longer able to render those services. Furthermore, the Assistant Director not only formed the view that the repeat request would not be referred to the Minister because she was satisfied that there had not been a significant change in circumstances since the previous requests, but also because she was not satisfied that new substantive issues were raised which “would now present unique or exceptional circumstances”. Yet these aspects of the “decision” are not the subject of challenge. They also emphasise the broad evaluative judgment which lay exclusively with the Assistant Director to make.

6.2    Alleged unreasonableness in treatment of applicant’s claim of significant personal threats (Ground 2)

55    There are essentially two limbs to ground 2 of the application for judicial review, as developed in argument. Specifically, the applicant contends that, in finding that it remained open to the applicant to make a request under s 48B of the Migration Act where any claims related to Australia’s non-refoulement obligations can be assessed, the Assistant Director’s decision was legally unreasonable because:

(1)    the Assistant Director mischaracterised and failed to consider the applicant’s claim of a significant personal threat to her if returned to Fiji, despite this being a relevant consideration under s 4 of the s 351/417 Guidelines; and

(2)    there was no evident and intelligible justification for the Assistant Director ignoring and disregarding her claims of significant personal threats because no reasons were given which explained why her claims were ignored.

56    I have earlier set out the applicant’s claim that there would be a significant threat to her personal security, human rights and dignity if she returned to Fiji by reason of her personal characteristics as a single woman of Indian ethnicity: see above at [11].

57    It will be recalled that s 4 of the s 351/417 Guidelines provides that “unique and exceptional circumstances” may include cases where, by reason of a person’s particular circumstances or personal characteristics, there is a significant threat to their personal security, human rights or human dignity if returned to their country of origin. This is subject to the qualification in s 4 of the Guidelines that the mistreatment must not “meet the criteria for the grant of any type of protection visa.” The Minister has issued separate guidelines about the referral of matters to him for possible consideration in the exercise of his power under s 48B of the Migration Act. Section 48B authorises the Minister to “lift the bar” in s 48A which prohibits the making of a second application for protection visa where, as here, the first application has been refused.

58    Underpinning both of aspects of ground 2 was the proposition that Ms [DCM] satisfied s 4 of the s 351/417 Guidelines, including the qualification. The applicant submitted that this was because she had already applied for a protection visa which had been refused. It followed, in her submission, that:

(1)    the mistreatment feared by her if returned to Fiji did not meet the criteria for a protection visa as required by s 4 of the s 315/417 Guidelines; and

(2)    the Assistant Director’s rejection of her claim of a significant personal threat on the ground that she could apply under s 48B to make a second application for a protection visa, was therefore unreasonable.

59    These arguments should be rejected.

60    First, it is apparent that the Assistant Director did not disregard this aspect of the applicant’s request but formed the view that it raised a circumstance outside those contemplated by s 4 of the s 351/417 Guidelines.

61    Secondly, it was common ground that the applicant’s claims were of such a nature that they could satisfy the criteria for the grant of a protection visa. As the Secretary submitted:

… the feared mistreatment was of a kind that obviously was apt to meet the criteria for a protection visa (if the fear was well founded). For example, sexual violence if obviously a form of “serious harm” relevant to satisfying the criterion in section 36(2)(a) [of the Migration Act]. And a claim to fear suffering such sexual violence on the basis of being Indian (or an Indian female, or single Indian female) is again clearly apt to have the requisite nexus to “race” or “membership of a particular social group”, as relevant to satisfying that criterion.

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

7.    CONCLUSION

63    It follows for these reasons that the application must be dismissed with costs.

Associate:

Dated:    20 July 2020