Full Federal Court considers procedural fairness requirements in the exercise of non-compellable Ministerial powers under the Migration Act

XAD (by her litigation guardian XAE) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 12

16 February 2021

Summary

XAD, a child classified as an “unauthorised maritime arrival” for the purposes of the Migration Act 1958 (Cth) (Act), sought (by her litigation guardian XAE) an order to compel either the Minister for Immigration[1] or the Minister for Home Affairs to consider her application for a protection visa. Both the Federal Court at first instance and the Full Federal Court on appeal found that a determination that previously enabled Australian-born children of “unauthorised maritime arrivals” to apply for protection visas did not apply to XAD’s application. The application was therefore invalid and could not be considered. However, both courts found that procedural fairness should have applied to the decision-making process when the relevant Minister subsequently decided to consider whether to allow XAD to apply for a visa in 2019.

Background

XAD was born in Australia in 2017. Despite being born in Australia, XAD was an “unauthorised maritime arrival” within the meaning of s 5AA(1A) of the Act, as her parents were Sri Lankan nationals who arrived in Australia by boat. Section 46A of the Act prevents a person with this status from making a valid application for a visa except in accordance with a determination made by the relevant Minister. On 26 July 2017, the Minister for Immigration made a determination that s 46A(1) does not prevent children born to persons who are unauthorised maritime arrivals from applying for particular classes of visa if certain conditions are met (July 2017 Determination). A Ministerial determination to allow a visa application to be made is commonly referred to as “lifting the bar”.

The July 2017 Determination was aimed at allowing Australian-born children to be considered alongside their parents in ongoing applications for temporary protection. This would alleviate the need for infants born as unauthorised maritime arrivals to be referred the Minister on an individual basis. Significantly for XAD, the July 2017 Determination to lift the bar was drafted to exclude children of parents whose own applications had been finally determined. XAD’s mother’s application had not been finally determined as at July 2017, but was finally determined the following month.

In March 2018, XAD was detained and placed in immigration detention, together with her parents and her elder sister, for the purposes of the family’s removal from Australia. The family remained in detention and their situation attracted significant public interest. In April 2019, the Department of Home Affairs (Department) provided a submission to the Minister for Immigration containing a recommendation that he indicate whether he wished to exercise his power to lift the bar to allow XAD to apply for a bridging visa. On 24 May 2019, in response to a request from the Minister for Immigration, the Department provided a further submission to the Minister in relation to the family’s circumstances, including a recommendation that the Minister exercise his power to lift the bar in s 46A to allow XAD and her family to apply for protection visas (May 2019 Submission). The Minister for Immigration returned the May 2019 Submission to the Department and marked it as requiring no further action, despite not circling either “agreed” or “not agreed” to the question of whether he wished to exercise his power under s 46A(2) .

On or about 24 July 2019, it was submitted that the Minister for Home Affairs had a meeting with the Secretary of the Department to discuss the family’s case. On 21 August 2019, an officer of the Department completed a protection obligations assessment in relation to XAD (August 2019 Assessment). The officer concluded that XAD’s claims for protection did not engage Australia’s protection obligations.

On 29 August 2019, an attempt to remove the family from Australia was halted by an order of the Federal Circuit Court after XAD commenced legal proceedings in relation to a decision not to refer her case to the Minister. The Department referred a submission to the Minister for Immigration, recommending that he indicate whether he wished to consider exercising the power in s 46A(2) in respect of XAD. The Minister for Immigration circled “not consider” and signed the submission on 3 September 2019.

On 12 September 2019, an application was lodged on behalf of XAD for a Safe Haven Enterprise Visa (a type of temporary protection visa within the meaning of s 35A of the Act). XAD’s status as an unauthorised maritime arrival meant that this application was invalid due to the bar in s 46A(1) unless the Minister lifted the bar pursuant to s 46A(2).

Federal Court decision

Determination on lifting the bar in July 2017

XAD sought an order to compel the Minister for Immigration or the Minister for Home Affairs to consider her September 2019 visa application. If her application was valid, s 47 of the Act required the Minister to consider and determine that application. As the visa was a protection visa, this would involve an assessment of whether or not XAD was a refugee for the purposes of the Act. If XAD was found to satisfy the criteria for being classified as a refugee, the Minister would have a duty to grant the visa and release her from detention.

Whether the visa application was a valid application turned on whether the July 2017 Determination had operated to lift the s 46A bar and keep it lifted. XAD submitted that her application was a valid application because she met the conditions specified in the July 2017 Determination at the time that the July 2017 Determination was made. In particular, XAD’s mother’s application had not been finally determined at that time.

Conversely, the respondents contended that XAD’s visa application was invalid. They argued that the relevant criteria were not satisfied at the time of the application in September 2019 because XAD’s mother’s application had been refused and finally determined more than two years earlier. Justice Moshinsky held that the July 2017 Determination did not have the effect that the bar in s 46A had remained lifted in respect of XAD. His Honour agreed with the respondents' construction and considered that the criteria in the July 2017 Determination were to be assessed at the time of the child’s visa application, and not at the date when the July 2017 Determination was made. The result was that XAD’s visa application was invalid and she could not compel the Minister to consider it.

Procedural fairness in considering whether to lift the bar in 2019

In 2019, XAD’s family’s circumstances were drawn to the attention of both the Minister for Home Affairs and the Minister for Immigration, both of whom exercised powers under the Act. While neither Minister lifted the bar during this period, XAD asserted that the rules of procedural fairness applied to the Ministers’ decision-making process regarding whether to lift the bar, and that she was not afforded procedural fairness. XAD contended that either the Minister for Immigration (in or before May 2019) or the Minister for Home Affairs (in July 2019) made a personal procedural decision to consider exercising the power to lift the bar, meaning that the August 2019 Assessment had a statutory basis.

The respondents contended that neither Minister made such a personal procedural decision to consider exercising the power to lift the bar. However, there was no real dispute between the parties that, if the rules of procedural fairness applied, XAD was not afforded procedural fairness in the conduct of the August 2019 Assessment. This was because she was not notified that the August 2019 Assessment was being conducted and was not invited to comment.

While Justice Moshinsky accepted that the Secretary of the Department and the Minister for Home Affairs discussed XAD’s family’s case at a meeting in or around July 2019, His Honour did not consider that this, together with the August 2019 Assessment, were sufficient to support the inference that the Minister for Home Affairs made a decision to consider exercising the power to lift the bar.

However, with respect to the Minister for Immigration, Justice Moshinsky concluded that the Minister had made a decision to consider exercising the power to lift the bar in May 2019. This finding was based, in part, on the terms of the May 2019 Submission. Relevantly, in the days following 14 May 2019, the Minister for Immigration requested that the Department prepare a full brief on the applicant’s family, which canvassed the options for him to lift the applicable bars in order to enable them to apply for protection visas. His Honour therefore found that it was to be inferred that the Minister for Immigration decided to consider exercising the power to lift the bar in respect of XAD.

Justice Moshinsky found that the related processes undertaken by the Department had a statutory basis and the rules of procedural fairness applied to these processes, including the conduct of the August 2019 Assessment.

Orders

Having found that XAD’s visa application in September 2019 was not a valid application, Justice Moshinsky did not accept her claim for relief (i.e. an order to compel the consideration of the application).

Instead, Justice Moshinsky made a declaration that in finding that XAD was not a person to whom Australia had protection obligations, the Department officer who carried out the protection obligations August 2019 Assessment failed to observe the requirements of procedural fairness.

Appeal and cross-appeal

Appeal in relation to the interpretation of the July 2017 Determination

On appeal, XAD argued that Justice Moshinsky was wrong to reject the arguments advanced in support the validity of her visa application (i.e. that the relevant criteria in the July 2017 Determination were fulfilled because her mother’s application had not been finally determined as at the date that the July 2017 Determination was made), and should have preferred XAD’s construction of the July 2017 Determination.

The Full Federal Court (Flick, White and Charlesworth JJ) agreed with Justice Moshinsky’s interpretation of the July 2017 Determination and dismissed the appeal. Their Honours confirmed that the July 2017 Determination did not operate to have “lifted the bar” with ongoing effect, and that XAD’s September 2019 visa application was therefore not a valid application.

Cross-appeal on the issue of procedural fairness

The respondents’ cross-appeal challenged the declaration that XAD was denied procedural fairness in the August 2019 Assessment. The respondents argued that:

• (a)   the Minister for Immigration had not in fact made a decision to consider exercising the power to lift the bar in relation to XAD in mid‑May 2019; and

• (b)   if he had made such a decision, then by returning the May 2019 Submission to the Department, the Minister had decided not to exercise the power (and subsequent Departmental processes therefore had no statutory basis and did not require procedural fairness).

In relation to the first ground, the Full Federal Court upheld Justice Moshinsky’s finding that the Minister for Immigration had made a decision to consider exercising his power to lift the bar, in light of the content of the submissions provided to the Minister and the communications between the Department and the Minister in relation to XAD and her family. The Court did not consider the failure of the Minister to circle either “agreed” or “not agreed” on the Departmental recommendation as casting light on the question of whether he had made the relevant procedural decision. The Court observed that a Minister may consider exercising the s 46A(2) power even if it is not a formal consideration or in any particular form. A Minister may make such a decision by resolving mentally to consider the exercise of the power and without recording that decision in writing.

In relation to the second ground, the respondents argued that the Minister’s consideration of whether to lift the bar came to an end prior to the relevant Departmental processes in which XAD was not afforded procedural fairness. The respondents argued that this was indicated by a range of circumstances, including a notation in Departmental records stating that the submission had been returned to the Department to be finalised as requiring no further action.

In rejecting the second ground, the Full Federal Court noted that there were no communications in evidence reflecting a decision by the Minister to take no further action in relation to the May 2019 Submission, and nor had the Minister indicated the cessation of his consideration in the obvious way (by circling the relevant item in the submission). In addition, an earlier submission in relation to the family provided to the Minister in April 2019 remained unresolved. The Full Federal Court upheld the conclusion of Justice Moshinsky that the Minister’s personal procedural decision to consider lifting the bar in relation to XAD had ongoing effect at the time of the August 2019 Assessment.

The Full Federal Court confirmed that following the Minister’s procedural decision to consider exercising the relevant power in favour of her, XAD was entitled to procedural fairness in Departmental processes informing the Minister’s consideration. The Court examined the authorities on procedural fairness in relation to consideration of the bar-lifting power. In Plaintiff M61/2010E (sometimes referred to as the Offshore Processing Case), the High Court unanimously held that the decision to consider whether the power under s 46A(2) should be exercised was an exercise of a statutory power affecting directly the rights and interests of those who were the subject of the assessment, and that this attracts the requirements of procedural fairness. This was so because the consideration of the exercise of the power under s 46A had the effect of prolonging the individual’s detention for as long as the assessment took to complete. The Full Federal Court confirmed that it is the steps taken to inform the Minister’s consideration of the exercise of power that attracts the requirements of procedural fairness, rather than the Minister’s decision itself.

Commentary

Ministers exercising authority under the Act have far-reaching statutory powers to grant visas to people in immigration detention and to permit people to make visa applications that would otherwise be prevented by statutory bars. The judgments in XAD confirm that although Ministers are under no obligation to consider whether to exercise these powers, a procedural decision to consider whether to exercise these powers can give rise to procedural fairness requirements in Departmental processes that inform the Minister’s consideration. The decisions have implications for the administrative processes that operate between the Department of Home Affairs and relevant Ministers in relation to individual cases.

With the applicability of the bar on visa applications affirmed by the Full Federal Court, XAD has been unable to rely on the possibility of satisfying the criteria for the grant of the protection visa she applied for in September 2019 in order to be released from detention and avoid removal from Australia. At the time of writing, XAD has applied for special leave to appeal to the High Court in relation to this element of the decision. Unless her application for leave is granted and she is successful in an appeal, XAD must continue to rely upon the prospective exercise of non-compellable Ministerial powers if she is to be granted a visa or permitted to apply for one.

The full case is available here.

Olivia Freeman is a Law Graduate at King & Wood Mallesons.

[1] There was a change in portfolio titles following the May 2019 federal election. For convenience, “Minister for Immigration” is used to refer to both the Minister for Immigration and Border Protection and the Minister for Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.