Federal Court of Australia

DUE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1187

ORDERS

THE COURT ORDERS THAT:

1.    The name of the applicant be replaced on the Court file by the pseudonym DUE20.

2.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

O’BRYAN J

Introduction

1    By originating application filed on 11 February 2020, the applicant has applied under s 39B of the Judiciary Act 1903 (Cth) for review of an assessment made by an officer of the Department of Home Affairs on 10 January 2020. By that assessment, the officer determined not to refer the applicant’s request for Ministerial intervention pursuant to s 417 of the Migration Act 1958 (Cth) (the Act) to the Minister for consideration.

2    The applicant seeks an order quashing or setting aside that decision and an order that the matter be remitted to the Minister for further consideration. Alternatively, the applicant seeks an order that he be granted any consequential necessary visas to be able to remain in Australia.

3    The originating application states a single ground of review as follows:

A.     The decision of the Minister for Immigration was made without jurisdiction or is affected by an error of jurisdiction.

Particulars

i.     the request made by the applicant that his matter be considered for Ministerial intervention under s417 of the Migration Act was not properly considered, in that it was not referred to the Minister and the Minister has not thereby exercised his discretion and nor was the applicant provided with any reasons as to why he did not meet the requisite Minister's guidelines.

4    The application was supported by an affidavit affirmed by the applicant which repeated the ground of review set out in the preceding paragraph. The applicant has not filed written submissions in support of the application. At the hearing, the applicant made submissions that reiterated the claims made in his request for Ministerial intervention.

5    For the reasons explained below, I am satisfied that the application for judicial review has no basis and should be dismissed.

Background

6    The applicant is a Sri Lankan national who first arrived in Australia by boat on 16 August 2012.

7    On 11 January 2013, the applicant applied for a protection visa. A delegate of the Minister refused that visa on 30 January 2014. The Refugee Review Tribunal affirmed the delegate’s decision on 10 June 2015. The Federal Circuit Court dismissed an application for judicial review of the Tribunal’s decision on 2 December 2015. The Federal Court dismissed an appeal from the Federal Circuit Court’s decision on 10 June 2016.

8    On 20 October 2016, the applicant made a request for Ministerial intervention under s 48B of the Act. On 2 May 2017, the Department advised the applicant in writing that his request had been assessed against the Minister’s Guidelines – s48A cases and requests for s48B Ministerial intervention, but was found not to meet the guidelines and therefore was not referred to the Minister for consideration.

9    On 17 May 2017, the applicant made a request for Ministerial intervention under s 417 of the Act. On 25 May 2017, the Department advised the applicant in writing that his request had been assessed against the Minister’s guidelines on ministerial powers (s351, s417, s501J) (Minister’s Guidelines), but was found not to meet the guidelines and therefore was not referred to the Minister for consideration.

10    On 22 November 2018, the applicant made a second request for Ministerial intervention under s 417 of the Act. On 13 December 2018, the Department advised the applicant in writing that his request had been assessed against the Minister’s Guidelines, but was found not to meet the guidelines and therefore was not referred to the Minister for consideration.

11    On 13 November 2019, the High Court refused an application for special leave to appeal from the decision of the Federal Court.

12    On 4 December 2019, the applicant made a third request for Ministerial intervention under s 417 of the Act. That request is the subject of this application for review. On 17 December 2019, a case officer within the Department assessed the applicant’s request against the Minister’s Guidelines . The assessment concluded that the request did not raise claims and circumstances that were unique and exceptional when assessed against the Guidelines and the application was assessed as not meeting the Guidelines for referral to the Minister. On 10 January 2020, the Assistant Director of the Ministerial Intervention Unit agreed with the case officer’s assessment. As a result, the applicant’s request was not referred to the Minister for consideration. On the same day, the Department wrote to the applicant advising him of that decision.

Procedural history

13    The proceeding came before me for a first case management hearing on 6 March 2020, at which I made initial orders timetabling the application to a hearing on 5 June 2020.

14    At the first case management hearing, it appeared to me that the applicant, being a self-represented litigant, needed assistance from both counsel and an interpreter. On 11 March 2020, I referred the applicant for pro bono assistance under rule 4.12 of the Federal Court Rules 2011 (Cth). Due to the COVID-19 pandemic, counsel was not able to be obtained through the Victorian Bar, but was eventually briefed through the NSW Bar on 28 May 2020.

15    As a result of the delay in obtaining pro bono legal assistance for the applicant, on 3 June 2020 I adjourned the hearing of the application from 5 June 2020 to 18 August 2020 and made orders for the applicant to file an amended application and written submissions by 26 June 2020 and other consequential orders.

16    On 16 June 2020, my chambers was advised that permission had been granted for the applicant’s pro bono counsel to cease to act and that the applicant was seeking his own legal assistance.

17    Written submissions were filed on behalf of the Minister. As noted earlier, the applicant has not filed written submissions in support of his application.

Submissions of the applicant

18    At the hearing, the applicant made submissions with the assistance of an interpreter. Those submissions repeated matters that were set out in the request for Ministerial intervention, including the claimed events in Sri Lanka that caused the applicant to seek a protection visa, the applicant’s fear of harm on being returned to Sri Lanka and the stress and anxiety being felt by the applicant at the prospect of being returned to Sri Lanka. All of the matters raised by the applicant concerned the merits of his application for Ministerial intervention.

Submissions of the Minister

19    The Minister accepted that this Court has jurisdiction to determine the application. The Minister submitted that an assessment by an officer of the Department of whether a request for Ministerial intervention meets the Minister’s Guidelines is not a “migration decision” under the Act: Plaintiff S10 v Minister for Immigration and Citizenship & Anor (2012) 246 CLR 636 (Plaintiff S10) at [46], [52] per French CJ and Kiefel J and at [91] per Gummow, Hayne, Crennan and Bell JJ). Without a personal procedural decision by the Minister to make a substantive decision in respect of a case or class of cases, actions undertaken by the Department on his instructions to assist him to decide whether to make a procedural decision have no statutory basis: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (SZSSJ) at [54]. In the absence of a “migration decision” under the Act, the limits imposed on this Court’s jurisdiction under s 476A of the Act do not apply: Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438 (Jabbour) at [26]. As a result, this Court has jurisdiction to determine the application under s 39B(1) of the Judiciary Act on the basis that a writ of mandamus is sought against an officer of the Commonwealth.

20    However, the Minister submitted that the relief sought by the applicant was not available to him. The Minister argued that, properly understood, the applicant’s request that the Court remit the matter to the Minister for further consideration is a request for relief in the nature of mandamus. The Minister says that there are two impediments to the grant of such relief. First, the Court cannot determine for itself whether the applicant’s request falls within the Minister’s Guidelines (as that is not a function given to the Court). Second, mandamus cannot issue requiring the request to be referred to the Minister. That follows from the absence of any legal duty requiring an officer to refer a request to the Minister: Plaintiff M61E/2010E v The Commonwealth & Ors (2010) 243 CLR 319 (Plaintiff M61E) at [59] (a case in relation to the Minister’s personal power under s 46A of the Act). Further, as there is no statutory obligation to consider a request for referral to the Minister, the Court cannot compel reconsideration of the request and there is therefore no utility in quashing the officer’s recommendation: Plaintiff M61E at [99]-[100]. In relation to the applicant’s request for the Court to order the grant of “consequential necessary visas”, the Minister submitted that the Court has no power to grant visas: SZEIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1801 at [13].

21    The Minister further submitted that, even if there were power to grant the relief sought by the applicant, his ground of review does not disclose any jurisdictional error justifying the grant of relief. The applicant’s ground of review contends that the Minister’s decision was made “without jurisdiction” or was affected by an “error of jurisdiction”. The Minister argued that “jurisdictional error” is a term that may be used to describe “a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it”: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain) at [24] per Kiefel CJ, Gageler and Keane JJ. In contrast, an officer of the Department who does not refer to the Minister a request that the Minister exercise his personal, non-compellable power under s 417 of the Act makes no “decision” that has any force or effect. Rather, as French CJ and Kiefel J held in Plaintiff S10 at [51], “[t]he work done by officers, acting under the guidelines, involves the acquisition of information and categorisation of requests or cases”. The work involves an exercise of non-statutory executive power that is incidental to the administration of the Act, but itself involves no decision that has any force or effect. Accordingly, the notion that such work may be affected by “jurisdictional error” is inapposite. Moreover, there was no obligation to provide procedural fairness in the assessment of the applicant’s request, and therefore no scope for the applicant to complain that he was not afforded procedural fairness: Plaintiff S10 at [51] per French CJ and Kiefel J.

22    As a model litigant, the Minister noted that Robertson J said in Jabbour (at [91]) that a decision by a Departmental officer not to refer a matter to the Minister for intervention under s 351 of the Act can be the subject of judicial review on the ground of legal unreasonableness. That conclusion was cited with approval by Mortimer J in Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457 (Alfred) at [32]. The Minister submitted formally that Jabbour was wrongly decided on that point and should not be followed. However, as no unreasonableness is apparent in this case, the Minister submitted that this Court need not consider the correctness of Jabbour. The case officer’s assessment accurately summarised and responded to the matters raised in the applicant’s request for Ministerial intervention. Accordingly, it cannot be said that the decision not to refer the matter to the Minister lacked an evident and intelligible justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ.

Consideration

23    Section 417(1) provides as follows:

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 415 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.

24    The Minister’s Guidelines issued in relation to the powers in ss 351, 417 and 501J state the purpose of the Guidelines in the following terms:

The purpose of these guidelines is to:

 •     explain the circumstances in which I may wish to consider intervening in a case

 •     explain how a person may request that I consider intervening in their case

 •     explain when my Department should refer a case to me

•     confirm that if a case does not meet these guidelines, I do not wish to consider intervening in that case.

25    In SZSSJ, the High Court stated the following principles concerning Ministerial powers of the kind in s 417 of the Act, and the assistance provided to the Minister by the Department in connection with such powers, drawn from Plaintiff M61E and Plaintiff S10 (at [53]-[55]):

First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.

Secondly, processes undertaken by the Department to assist in the Minister’s consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister’s consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister’s instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.

Thirdly, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact.

26    In the present case, the Minister did not make a personal procedural decision to consider whether to make a substantive decision under s 417. Rather, the Department undertook a process pursuant to the Minister’s Guidelines to assist the Minister and made a decision not to refer the applicant’s request to the Minister. That decision had no statutory basis and accordingly did not attract a requirement to afford procedural fairness.

27    It follows that the applicant’s ground of review of the Departmental decision is misconceived. The ground of review asserts that the applicant’s request for Ministerial intervention under s 417 of the Migration Act was not properly considered because it was not referred to the Minister and the Minister has not thereby exercised his discretion, and nor was the applicant provided with any reasons as to why he did not meet the Minister's Guidelines. As Plaintiff M61E, Plaintiff S10 and SZSSJ make clear, the fact that the request was not referred to the Minister to consider and the fact that the applicant was not provided with reasons for the decision not to refer the request to the Minister do not establish a basis for judicial review of the decision.

28    In Jabbour, Robertson J considered whether a Departmental decision not to refer a request for Ministerial intervention under s 351 of the Act to the Minister for consideration was amenable to judicial review on grounds other than procedural fairness. His Honour observed (at [89]) 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 (referring to Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208 per French and Drummond JJ). His Honour considered that 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” (referring to 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). His Honour concluded that (at [91] and [92]):

In my opinion, at the level of principle the non-statutory administrative action on the part of the second respondent in this case is amenable to judicial review for legal unreasonableness. 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.

The nature of the administrative action, the relevant exercise of power, does not take it out of the mainstream of government actions either by reference to subject matter or as involving a matter of political judgment. These characteristics of the present non-statutory administrative action do not distinguish it from a statutory discretion. Although involving the exercise of a 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 CJ. That the basis of review may be narrower than for government action under a statute does not have the consequence that judicial review is unavailable. That the action in the present case is not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth), because there is no decision under an enactment, does not mean that judicial review under s 39B of the Judiciary Act is not available: s 10 of the Administrative Decisions (Judicial Review) Act provides that the rights conferred by ss 5, 6 and 7 are in addition to, and not in derogation of, any other rights that the person has to seek a review by, relevantly, a court. Further, I have set out at [81] above why I consider the displacement of procedural fairness, as a matter of contrary statutory intention, does not mean that review for legal unreasonableness is similarly displaced.

29    In relation to the content of the condition of reasonableness, Robertson J stated (at [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 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.

30    In Alfred, Mortimer J applied the principles stated in Jabbour in the context of a request for Ministerial intervention under s 417, but found no legal error in the decision.

31    While the Minister advanced the formal submission that Jabbour was wrongly decided on this point, the Minister submitted that this Court need not consider the correctness of Jabbour because it cannot be said that the decision not to refer the matter to the Minister lacked an evident and intelligible justification.

32    Although the applicant’s ground of review did not invoke the principle of legal unreasonableness, I am conscious that the applicant is self-represented and unfamiliar with such principles. Accordingly, I have considered whether any such error appears in the present case and, in doing so, I assume the correctness of the above principles stated in Jabbour.

33    In his application for Ministerial intervention under s 417 of the Act, the applicant repeated claims made in the course of his protection visa application (but which were not accepted by the Tribunal). The applicant explained his fear of returning to Sri Lanka as a Tamil and a failed asylum seeker. The applicant claimed that circumstances had changed in Sri Lanka following the Presidential elections in November 2019 which resulted in the election of Sri Lanka's former wartime defence chief, Gotabaya Rajapaksa. The applicant also claimed that:

(a)    While he has no family in Australia, he has a number of friends who are Australian citizens with whom he has formed close relationships and his return to Sri Lanka is likely to cause significant hardship and distress for his Australian friends.

(b)    He has been living in Australia since 2012 and has settled in Australia and has been residing in Victoria for a number of years. He has been working legally during that time.

(c)    He is in extreme fear of being persecuted if forced to return to Sri Lanka and, because of this, his mental health has deteriorated.

34    The assessment of the applicant’s request was undertaken by a Departmental case officer. The assessment records the applicant’s immigration history, as outlined above. The case officer recorded that, when assessing the applicant’s claims for protection, the Tribunal had concluded that the applicant was not a witness of truth and his claims were not credible. The assessment then records the submissions made by the applicant in support of Ministerial intervention. The assessment concluded that:

I have assessed this request against the Minister’s Guidelines on ministerial powers (s417) 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.

35    In respect of unique or exceptional circumstances, the Minister’s Guidelines state:

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.

36    Having regard to the Minister’s Guidelines, and particularly the list of unique or exceptional circumstances warranting referral to the Minister, I cannot identify any aspect of the Departmental decision as involving legal unreasonableness. There is nothing to suggest that the Department misconstrued or misunderstood the Minister’s Guidelines, and the Department’s reasons for decision are not affected by illogicality.

37    Accordingly, the application should be dismissed with costs.

Associate:

Dated:    18 August 2020