Plaintiff S10/2011 v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Judge: French CJ,Kiefel J,Gummow,Hayne,Crennan,Bell JJ,Heydon J
• Judgment Date: 07 September 2012
• Neutral Citation: 2012-0907 HCA A,[2012] HCA 31
• Court: High Court
• Docket Number: Matter No S10/2011 Matter No S49/2011 Matter No S51/2011
• Date: 07 September 2012

[2012] HCA 31

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

Matter No S10/2011

Matter No S43/2011

Matter No S49/2011

Matter No S51/2011

Plaintiff S10/2011

Plaintiff

and

Minister For Immigration And Citizenship & Anor

Defendants

Plaintiff S49/2011

Plaintiff

and

Minister For Immigration And Citizenship & Anor

Defendants

Plaintiff S51/2011

Plaintiff

and

Minister For Immigration And Citizenship & Anor

Defendants

Representation

S B Lloyd SC with S E J Prince, G J D del Villar and J B King for the plaintiffs (instructed by Parish Patience Immigration Lawyers)

S J Gageler SC, Solicitor-General of the Commonwealth with G R Kennett SC and A M Mitchelmore for the defendants (instructed by Australian Government Solicitor)

S J Gageler SC, Solicitor-General of the Commonwealth with M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))

Migration Act 1958 (Cth), ss 48B, 195A, 351, 417.

Plaintiff S10/2011 v Minister for Immigration and Citizenship

Kaur v Minister for Immigration and Citizenship

Plaintiff S49/2011 v Minister for Immigration and Citizenship

Plaintiff S51/2011 v Minister for Immigration and Citizenship

Administrative law — Procedural fairness — Migration — Refugees — Review by Refugee Review Tribunal and Migration Review Tribunal — Ministerial discretion — Migration Act 1958 (Cth) confers powers upon Minister to dispense with statutory requirements for visa if ‘in the public interest to do so’ — Dispensing powers must be exercised personally and are non-compellable — Plaintiffs refused visas and unsuccessfully sought merits review of those refusals — Plaintiffs requested Minister to consider exercising and to exercise dispensing powers — Requests by three plaintiffs refused by departmental officers pursuant to guidelines issued by Minister not forwarded to Minister — Request by one plaintiff refused by Minister — Whether statutory provisions conferring dispensing powers apt to affect adversely the sufficient interest of a party seeking exercise of those powers — Whether statutory provisions conferring dispensing powers excluded any obligation of Minister to accord plaintiffs procedural fairness.

Words and phrases — ‘dispensing provision’, ‘guidelines’, ‘legitimate expectation’, ‘procedural fairness’, ‘public interest‘, ‘sufficient interest’.

ORDER

In each matter, application dismissed with costs.

French CJ and Kiefel J.

Introduction

1 Four plaintiffs, each of them non-citizens who tried and failed to obtain visas to remain in Australia, apply to this Court for declaratory relief and the issue of certiorari and constitutional writs against the Minister for Immigration and Citizenship (‘the Minister’) and the Secretary for the Department of Immigration and Citizenship (‘the Secretary’). The applications, referred for hearing to a Full Court by Gummow J, arise out of the failure of each of the plaintiffs to attract the exercise by the Minister of his or her non-compellable, non-delegable personal discretion to make decisions in favour of unsuccessful visa applicants and persons in detention under the Migration Act 1958 (Cth) (‘the Act’). That discretion operates outside the regular statutory process for determination of visa applications and administrative review of such determinations by the Migration Review Tribunal (‘the MRT’) and the Refugee Review Tribunal (‘the RRT’). It is conferred by a number of sections of the Act. Four of those sections are relevant to these proceedings. Under s 48B of the Act, the Minister may grant a protection visa to a person whose application for a protection visa has already been refused. Under s 195A, the Minister may grant a visa to a person in immigration detention. Sections 35and 417 authorise the Minister to substitute for a decision of the MRT or the RRT a decision which is more favourable to the applicant. Each of the sections provides that the Minister is under no duty even to consider the exercise of the discretions they confer 1.

2 The Minister has issued or adopted previously issued ministerial guidelines in the form of directions to the Secretary and his or her officers setting out the circumstances in which the Minister may wish to consider exercising the discretionary powers under the four sections. The plaintiffs assert, as part of their respective grounds for relief, that the issue of the guidelines in relation to each section involved ‘a decision by [the Minister] to decide to consider the exercise of those statutory powers.’ As a premise for the claims for relief, that proposition should be rejected for the reasons set out below. The plaintiffs further assert that, having decided to consider the exercise of his or her powers, the steps taken under the guidelines to inform that consideration were steps towards the exercise of those powers. That proposition too should be rejected. The plaintiffs say that their rights and interests were directly affected by that consideration and that the valid exercise of the powers conferred by ss 48B, 195A, 351 and 417, to consider whether to exercise the powers conferred by those sections, is conditioned upon compliance with the requirements of procedural fairness. That proposition too should be rejected.

3 Each of the applications is said to raise a matter arising under the Constitution or involving its interpretation, namely, whether the executive power of the Commonwealth is constrained by a requirement that procedural fairness be afforded to a person whose rights, interests or legitimate expectations may be destroyed, defeated or prejudiced by its exercise. That question arises if the plaintiffs were to establish that the inquiries made, and the submissions prepared, by officers of the Department of Immigration and Citizenship (‘the Department’) pursuant to the ministerial guidelines were themselves capable of affecting, defeating or prejudicing rights, interests or legitimate expectations. They were not.

4 For the reasons that follow, the consideration by officers of the Department of the requests by the plaintiffs for the Minister to consider exercising non-compellable powers under the Act did not attract the requirements of procedural fairness. Further, the Minister is not obliged to accord procedural fairness, in the form of the so-called hearing rule, in personally considering whether to exercise the Minister's discretion under ss 48B, 195A, 351 or 417. Each of the applications should be dismissed.

The plaintiffs' histories

5 The plaintiffs' histories have some common elements. Each of them applied for a visa and was refused on the merits, was unsuccessful in administrative review by the MRT or the RRT, and was unsuccessful in judicial review applications. Each submitted at least one request that the Minister exercise his or her discretion under one or more of ss 48B, 195A, 351 and 417. Each had his or her case considered personally by the Minister on at least one occasion under s 351 (Ms Kaur) or s 417 (Plaintiffs S10, S49 and S51). A brief outline of their individual histories follows.

Plaintiff S10

6 Plaintiff S10, a citizen of Pakistan, arrived in Australia on 24 August 2007 and on September 2007 applied for a protection visa. He claimed to fear persecution on account of his actual or imputed political opinions and religious beliefs if he were to be returned to Pakistan. On November 2007, a delegate of the Minister refused the visa application. Following an application for merits review, the RRT affirmed that decision on 22 February 2008. An application for judicial review of the RRT decision was dismissed in the Federal Magistrates Court of Australia on 28 July 2008 2, as was a subsequent appeal to the Full Court

of the Federal Court of Australia by a decision delivered on 15 April 2009 3. Special leave to appeal to this Court was refused on 4 September 2009 4.

7 On 30 October 2009, Plaintiff S10 requested that the Minister exercise his power under s 41of the Act and, alternatively, under s 48B of the Act. His request in relation to s 48B was not referred to the Minister, a departmental officer having determined that it did not meet the ministerial guidelines relating to s 48B. His request for consideration under s 41was referred to the Minister who signed a minute indicating that he did not wish to consider the exercise of that power. In these proceedings, Plaintiff S10 complains of a breach of procedural fairness in relation to his s 48B request on the basis that he was not given the opportunity to comment on materials relied upon by the departmental officer, and that the officer failed to address the material and claim before him. That breach of procedural fairness, it is said, also infected the way in which the Minister and his Department dealt with his s 41request.

Jasvir Kaur

8 Ms Kaur arrived in Australia on a Subclass 573 (Higher Education Sector) visa on 21 July 2005 and on 2June 2006 was relevantly granted a further student visa valid until 6 June 2008. An application for a further student visa, lodged on 1 September 2008, was refused by a delegate of the Minister on the basis that it had not been lodged within 2days of her previous substantive visa ceasing to be in effect. The MRT affirmed the delegate's decision and, on 16 October 2009, Ms Kaur requested that the Minister exercise his power under s 351 of the Act. Her request was referred to the Minister who determined that he did not wish to consider the exercise of that power.

9 An application to the Federal Magistrates Court for judicial review of the MRT's decision was dismissed 5. So too was an appeal against that decision to the Federal Court 6. Both Barnes FM in the Federal Magistrates Court 7, and Jacobson J in the Federal Court 8, noted that Ms...