FEDERAL COURT OF AUSTRALIA AOA16 v Minister for Immigration and Border Protection [2017] FCA 697 Appeal from: Application for leave to appeal: AOA16 v Minister for Immigration & Anor [2017] FCCA 189 File number: VID 93 of 2017 Judge: PAGONE J Date of judgment: 21 June 2017 Catchwords: MIGRATION – application for leave to appeal interlocutory judgment – Ministerial refusal to exercise powers of intervention under the Act – whether the matter was within the jurisdiction of the Federal Circuit Court – whether the Federal Circuit Court decision was attended by sufficient doubt to warrant reconsideration Legislation: Migration Act 1958 (Cth) Cases cited: A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225 Décor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397 Federal Commissioner of Taxation v Lamesa Holdings B.V (1997) 157 ALR 290; 296 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510 Tech Mahindra Ltd v Commissioner of Taxation (2015)101 ATR 755 [58] Date of hearing: 1 June 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ambi Associates Counsel for the Respondents: Mr C Tran Solicitor for the Respondents: Australian Government Solicitor ORDERS VID 93 of 2017 BETWEEN: AOA16 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION Second Respondent NICKY SHAW (IN THE CAPACITY OF AN OFFICER OF THE COMMONWEALTH) Third Respondent JUDGE: PAGONE J DATE OF ORDER: 21 JUNE 2017 THE COURT ORDERS THAT: 1. The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PAGONE J: 1 This is an application for leave to appeal against an interlocutory judgment of the Federal Circuit Court dismissing an application to review the result of a request to the Minister for Immigration and Border Protection to exercise his power under s 48B of the Migration Act 1958 (Cth) ("the Act"). The application had been listed for hearing on 10 May 2017 but was adjourned after the Minister sought and obtained leave to file and rely upon an affidavit affirmed in this matter on that day. The application was relisted for hearing on 1 June 2017 with the Minister consenting to an order that he pay the reasonable costs of the applicant, to be agreed or taxed, thrown away on account of the adjournment of the hearing on 10 May 2017. 2 The principles relevant to the grant of leave to appeal from an interlocutory judgment or ruling were considered by the Full Court in Décor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397 in which the Court described the test at 398-9: The first test, which relates to the prospects of the proposed appeal, is "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court". The second "is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. … […T]he sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations." In applying this test it must, of course, be remembered that the application before the Court is not the appeal itself. 3 The decision from which leave to appeal is sought was a decision by the Federal Circuit Court that it lacked jurisdiction to determine an application. The applicant had sought a protection visa which had been refused by a delegate of the Minister. The refusal decision by the delegate was reviewed and affirmed by the Tribunal. The applicant then asked the Minister to exercise his powers under s 417 of the Act to make a more favourable decision than the Tribunal had made and, in the alternative, to exercise his powers under s 48B of the Act to permit him to make a further application for the visa which would otherwise be barred by s 48A. 4 The applicant's requests were supported by a submission by his migration agents, a detailed statement by the applicant and a report by a clinical psychologist who had seen the applicant once but had intended to treat and to assess the applicant over a period of some months. An essential point of the requests to the Minister was the claim, then advanced for the first time to the Minister, that the applicant, who is a Tamil, had been abducted, imprisoned and had been repeatedly raped and sexually assaulted by three or four Sinhalese soldiers or members of the CID in 2011. It was significant to the applicant's claim that the date of the abduction and torture was after the conclusion of the civil war between the LTTE and Sri Lankan government. The applicant explained in his requests to the Minister that the applicant had not earlier been able to speak of these events because of his difficulty in explaining such intimate assaults to the female officer who had first interviewed him, because he had felt so physically and psychologically scarred by the assaults that he felt unable to speak about the assaults, because he was constrained by Tamil culture not to reveal such an experience, and because other applicants for protection had advised him against advancing new claims after his initial interview. 5 The Minister had no duty to consider the requests for him to exercise his powers under s 417 or s 48B of the Act, and had given guidelines to his department about how to deal with such requests. The applicant was informed by letter dated 8 March 2016 that the Minister had personally considered the applicant's case and had decided that it would not be in the public interest to intervene and that the Minister had not exercised his power under s 417 of the Act. The applicant was also informed that the applicant's request for intervention under s 48B would not be sent to the Minister because the department had assessed the applicant's request against ministerial guidelines and had found that the applicant's case did not meet the guidelines for the request to be sent to the Minister. The statement in the letter dated 8 March 2016 to the applicant that his case under s 48A would not be sent to the Minister required some qualification in light of the material exhibited to the affidavit filed on 10 May 2017. 6 The affidavit filed on behalf of the Minister on 10 May 2017 in this proceeding exhibited the copy of a document which had been given to the Minister for his consideration of the application under s 417 of the Act. The document was headed "Consideration under section 417 of the Migration Act 1958 – Vic Schedule V2015/249" and its purpose was described as being to obtain the Minister's decision in relation to a number of cases, including that of the applicant in this proceeding, in which there had been a request that he exercise his public interest power "under s 417 of the Act". The document which had been given to the Minister contained a pre-prepared statement for the Minister to sign, and which was subsequently signed by the Minister, stating that he had read an attached schedule which had been provided to him by the department concerning the requests by the persons named, including the applicant in this proceeding, for the exercise of the Minister's power under s 417 and that "unless otherwise indicated above" he did not propose to consider the exercise of that power. There was nothing indicated above the statement signed by the Minister indicating that he proposed to consider personally the exercise of the power under s 417. The statement went on to say that he did not wish further requests to him for the exercise of his public interest power in the cases which had been brought to his attention unless such further requests raised new substantive issues which, in the opinion of the assessing officer, when considered in combination with the information known personally, brought the cases within his guidelines for the identification of cases where the Minister may consider it to be in the public interest to intervene to substitute a more favourable decision. 7 An attachment to that document was a detailed minute of seven pages concerning the applicant's request for Ministerial intervention under s 48B. It concluded with an overall assessment that there was no credible new information that would enhance the applicant's chances of making a successful protection visa application and that the request for Ministerial intervention was "considered not to meet the Minister's guidelines" and, therefore, that the case "should not be referred to the Minister for consideration under s 48B". The minute went on to say, however, that the assessment would be provided to the Minister as an attachment to a s 417 schedule "for the purposes of his holistic consideration". It was submitted for the applicant that in these circumstances the Minister had made a decision which the Federal Circuit Court had jurisdiction to review. The Minister submitted that no decision had been made that was reviewable by the Federal Circuit Court. 8 Section 476(1) of the Act gives to the Federal Circuit Court the same original jurisdiction in relation to "migration decisions" as the High Court has under s 75(5) of the Constitution. A "migration decision" is defined by s 5 of the Act as: (a) a privative clause decision; or (b) a purported privative clause decision; or (c) a non-privative clause decision; or (d) an AAT Act migration decision. Section 476(2)(d) of the Act removes from the jurisdiction of the Federal Court a decision which is "a privative clause decision" or "purported privative clause decision" mentioned in s 474(7). Section 5E defines a "purported privative clause decision" as follows: (1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not: (a) a failure to exercise jurisdiction; or (b) an excess of jurisdiction; in the making of the decision. (2) In this section, decision includes anything listed in subsection 474(3). A decision by the Minister not to exercise, or not to consider the exercise of, the Minister's power under ss 48B and 417, is provided, for the avoidance of doubt, to be a privative clause decision within the meaning of s 474(2) and, therefore, is excluded from the jurisdiction of the Federal Circuit Court by s 476(2)(d). 9 The applicant submitted that the Federal Circuit Court had incorrectly concluded that it lacked jurisdiction to review the Minister's failure to consider the request for the Minister's intervention under s 48B of the Act. The applicant submitted the Court's jurisdiction was not excluded because the Minister had made a "migration decision" in rejecting the request for intervention under s 48B in circumstances which had included the department having assessed the request in light of the Minister's guidelines and, or alternatively, the Minister having had the detailed minute concerning the s 48B request when the Minister decided not to exercise the power under s 417 of the Act. 10 The Federal Circuit Court decided that it lacked jurisdiction to consider the application because there had been no migration decision made by the Minister. The Court said at [12]-[19]: 12. The applicant submits that the refusal by the Minister to exercise his power under s.48B of the Act, was a decision made without taking into account a new claim advanced by the applicant. 13. The High Court in the matter of Plaintiff' S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31, considered the application of ss.48B and 417 of the Act which confers powers upon the Minister to intervene with respect to the granting of visas under the Act. In that matter, the plaintiffs submitted that in deciding whether or not to exercise the relevant powers, the Minister was obliged to afford procedural fairness to the plaintiffs. 14. French CJ and Kiefel J held at [50] —[51]: 50. The purpose and nature of the powers conferred by each of the dispensing provisions in these proceedings appears from their respective texts. It is clear from their terms that the Minister is under no duty to respond to a request for his or her consideration of the exercise of those powers. Nor is the Minister under a duty, independent of any such request, to consider any class of case for the exercise of those powers. With no statutory duty to consider the exercise of the Minister's powers being enlivened by a request or by the occurrence of a case to which the power might apply, no question of procedural fairness arises when the Minister declines to embark upon such a consideration. If on ministerial instructions, certain classes of request or case are not even to be submitted to him or her for consideration, the position in law is unchanged. There is no exercise of a statutory power under the Act conditioned upon compliance with the requirements of procedural fairness. … There is, however, nothing about the character of the guideline processes, as an exercise of the executive power of the Commonwealth or otherwise, that attracts to them a requirement to observe procedural fairness. 15. Procedural fairness can be implied only as a condition of the exercise of a statutory power. In a matter such as this, where the Minister had not personally made a procedural decision of a personal or substantive nature, the effect of s.476(2) of the Act is to preclude this Court from engaging in a review of this decision. 16. Furthermore, the applicant has not identified the manner in which he was denied procedural fairness and does not disclose an arguable case that the determination was unreasonable or irrational to the extent that it may afford a distinct ground of review. 17. The proper approach to the resolution of the issues raised by this application were considered by Nettle J in an application to show cause in the High Court in AAG15 v Minister f o r Immigration and Border Protection [2016] HCATrans 131 (3 June 2016). His Honour stated in relation to whether there was a requirement to observe procedural fairness on the part or departmental officers when considering the guidelines or whether the guidelines imposed an obligation on the Minister to intervene: Furthermore, as was held in Plaintiff S10 of 2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 654−655 paragraphs 50 and 51 in the joint judgment of Chief Justice French and Justice Kiefel; and at 668 paragraph 100 in the joint judgment of Justices Gummow, Hayne, Crennan and Bell, the Minister is under no duty to respond to a request f o r his or her consideration of the exercise of the power conferred by section 417, and it makes no difference at law that, on the basis of the ministerial instructions laid down in the guidelines, certain classes of requests are not to be submitted to the Minister for his or her consideration. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134 of 2002 (2003) 211 CLR 441 at 460−461 paragraphs 44−48; and 474 paragraphs 99−100 in the judgment of Justices Gaudron and Kirby. The work done by officers acting under the guidelines involves the acquisition of information and categorisation of requests or cases. It is an executive function incidental to the administration of the Act which stands outside the conventional statutory regime. Nothing about the character of the guideline processes, whether as an exercise of the executive power of the Commonwealth or otherwise, is sufficient in itself to attract a requirement to observe procedural fairness or to impose an obligation on the Minister to intervene. 18. In this matter, the evidence comprised o f a letter from the third respondent to the applicant dated 8 March 2016 establishes that no decision has been made by the officers of the department who assessed the case determined that it did not meet the guidelines and was not sent to the Minister. 19. As there was no decision made by the Minister in relation to his dispensing powers under s.48B there was no migration decision. In those circumstances where the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister to make the procedural decision has no statutory basis and does not attract procedural fairness. (Footnotes omitted.) The applicant's case before the Federal Circuit Court, and in the application for leave to this Court, relied upon the submission that there was divided authority on whether departmental conduct in accordance with ministerial guidelines was conduct preparatory to the Minister making a decision, and therefore within the jurisdiction of the Federal Circuit Court, or a decision not to consider whether to exercise the power under s 48B, and therefore not within the jurisdiction of the Federal Circuit Court. 11 The majority in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 had described directions given by the Minister as the Minister having "determined in advance" the circumstances in which the Minister wished to be put in a position to consider the exercise of discretionary powers. At [91] the majority said: 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. (Footnote omitted.) Whether or not the Minister has made a decision to consider or to exercise a discretionary power is a question of fact. The High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 363 considered the decision in Plaintiff S10/2011 and said at [47]-[57]: [47] Members of the Court, with the possible exception only of Heydon J, interpreted the guidelines as directed to when the Department was to refer cases to the Minister in order to allow the Minister to decide whether or not to consider exercising a non-compellable power: where the Department had not referred a case to the Minister, no statutory power had been engaged; where the Department had referred a case to the Minister and the Minister had indicated that he would "not intervene", the Minister had made a personal decision that he would not consider exercising any of the non-compellable powers. [48] The unanimous conclusion of the Court was that in none of the cases was the process undertaken by the Department or the decision of the Minister conditioned by any requirement to afford procedural fairness. [49] Gummow, Hayne, Crennan and Bell JJ, having listed supporting statutory indicia,27 stated that conclusion in terms that "[u]pon their proper construction and in their application to the present cases", the provisions conferring the relevant non-compellable powers were "not conditioned on observance of the principles of procedural fairness" for the reason that the Act revealed a "necessary intendment" that "the provisions are not attended by a requirement for the observance of procedural fairness". [50] French CJ and Kiefel J said: With no statutory duty to consider the exercise of the Minister's powers being enlivened by a request or by the occurrence of a case to which the power might apply, no question of procedural fairness arises when the Minister declines to embark upon such a consideration. If, on ministerial instructions, certain classes of request or case are not even to be submitted to him or her for consideration, the position in law is unchanged. There is no exercise of a statutory power under the Act conditioned upon compliance with the requirements of procedural fairness. [51] Heydon J said: The structure of the Act suggests that the powers which the empowering provisions confer on the Minister need not be exercised in compliance with the rules of procedural fairness. It would be strange if the activities of officials of the Minister's Department preparatory to the Minister either deciding whether to consider exercising those powers or deciding to exercise them would have to comply with the rules of procedural fairness. [52] Three principles are to be drawn from Plaintiff M61/2010E and Plaintiff S10/2011 concerning the construction and relevant application of ss 48B, 195A and 417 of the Act. [53] 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. [54] Second, 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. [55] Third, 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. [56] Here, on the unchallenged finding of the Full Court, the Minister has made a personal procedural decision to consider whether to grant a visa under s 195A and s 417 of the Act or to lift the bar under s 48B in the case of each applicant for a protection visa affected by the Data Breach. The ITOA processes have been undertaken by officers of the Department to assist the Minister in that consideration. An ITOA is accordingly properly characterised as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417 of the Act. [57] That characterisation of an ITOA, as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417, informs the resolution of the issue whether procedural fairness was required in the process. The same characterisation also informs the resolution of the issue whether the Federal Circuit Court had jurisdiction. (Footnotes omitted.) It follows from these passages that the Minister's statutory power under s 48B had not been engaged where the department had not referred a case to the Minister. The inclusion of the detailed minute concerning s 48B in the materials referred to the Minister was expressly stated not to be a referral to the Minister for his consideration of the s 48B request. Whatever the author of the minute may have intended by the use of the word "holistic" (see A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225, 231, Federal Commissioner of Taxation v Lamesa Holdings B.V (1997) 157 ALR 290; 296, Tech Mahindra Ltd v Commissioner of Taxation (2015)101 ATR 755 [58]; see also definition of "holistic" in Oxford Dictionary of English (3rd Ed) as "parts of something [being] intimately interconnected and explicable only by reference to the whole" (philosophy)), and whatever the reader of the minute may have understood by the word "holistic" as used in the minute, the author made clear that the s 48B material was not being sent to the Minister for the Minister's consideration under s 48B, and the Minister did not consider the request under s 48B. The only decision of the Minister concerning s 48B which he may have made was a decision not to consider the exercise of a non-compellable power of a kind mentioned in Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510 at [62]-[64] (referred to by the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 363 at [72]) which was not a decision made under the Act. Such a decision may be reviewable, as the Minister submitted, in the original jurisdiction of the High Court but not by the Federal Circuit Court by reason of s 474(7) of the Act. 12 It follows that the Minister had not made a migration decision under the Act which was reviewable by the Federal Circuit Court and that the decision of the Federal Circuit Court is not attended with sufficient doubt to warrant the grant of leave. Accordingly, the application will be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 21 June 2017