Is a decision made by a Departmental officer in purported compliance with the 2016 Guidelines concerning Section 351 of the Migration Act, 1958 (Cth) amenable to judicial review for legal unreasonableness?

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 (23 November 2021)

Intro:-

These cases illustrate how an exercise of legislative power may give rise to intersecting exercises of executive power, all of which are subject to the Constitution and the general law. There is one essential question: can this Court on judicial review determine whether the non-statutorily based administrative actions taken by the Departmental officers in these two cases are unlawful because they are legally unreasonable? This was an initial question for each primary judge in both cases.

Facts:-

The appellants, Mr Martin John Davis and DCM20, are non-citizens. They each made an application for a visa under the Migration Act 1958 (Cth) and in each case the application was refused by a delegate exercising powers of the Minister then responsible for administering the Act. Those decisions were affirmed on review by the Administrative Appeals Tribunal (AAT) and the formerly-named Migration Review Tribunal (MRT) respectively in the exercise of review powers conferred under s 349(2)(a) of the Act.

At relevant times s 351(1) of the Act provided that the Minister may substitute a more favourable decision for that made by the MRT (in the case of Mr Davis) or the AAT (in the case of DCM20) if the Minister thinks it is in the public interest to do so. The power to intervene under s 351 may only be exercised by the Minister personally: s 351(2). The Minister does not have a duty to consider whether to exercise the power in respect of any decision, whether he or she is requested to do so or in any other circumstances: s 351(7).

In March 2016, the Minister issued Guidelines in relation to a number of intervention powers, including that conferred by s 351 of the Act. The Guidelines are directed to officers employed within the now-named Department of Home Affairs. They define the circumstances in which requests for intervention under s 351 are to be referred to the Minister for “possible consideration”.

The appellants each made repeated requests for intervention under s 351 of the Act (intervention requests). The identity of the persons who assessed the requests differs in each case. For present purposes it is convenient to refer to them generically as the Departmental officers.

The Departmental officers did not refer the intervention requests to the Minister because, in their respective assessments, the requests did not fulfil the conditions for referral as set out in the Guidelines.

The appellants each commenced an application in this Court for relief under s 39B(1) of the Judiciary Act 1903 (Cth). Among other things, they argued that the assessments were amenable to judicial review on the ground of legal unreasonableness. As to the availability of judicial review on that ground, the appellants relied on the judgment of Robertson J in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438. The respondents contended that Jabbour had been wrongly decided, but acknowledged that the decision should be followed by another single judge of the Court, unless shown to be plainly wrong. The primary judge in each case proceeded from the premise that the assessments were amenable to review, but dismissed the applications on the basis that legal unreasonableness had not been established in the particular case: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791 and DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022.

The appellants appeal from the respective judgments. The appeals may be referred to as the Davis appeal (VID399/2020) and the DCM20 appeal (NSD831/2020). The first respondent to the Davis appeal is the now-titled Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The relevant Departmental officers are joined as respondents in each case.

The proceedings raise common issues concerning the availability and ambit of judicial review including the utility of the remedies sought and discrete issues concerning the application of principle to the facts of each case.

Issues:-

Did the primary judge err in failing to find that the decision not to refer the intervention request to the Minister was legally unreasonable and (in the case of DCM20) in failing to find that the relevant Departmental officer misconstrued the Guidelines?

Defining the limits of non-statutory power

As an implied condition on the exercise of a statutory power, the requirement of legal reasonableness arises by a common law principle of statutory construction. As Gaudron J said in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 (at [116]):-

"As with the rules of procedural fairness, it is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it. ..."

The unsurprising proposition that Parliament is taken to have intended that a statutory power be exercised reasonably was confirmed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at [123]) and in each of the three judgments of the High Court in Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332, French CJ (at [26] and [29]), Hayne, Kiefel and Bell JJ (at [63]), Gageler J (at [88] – [91]); see also Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 (at [15]) and Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1, Brennan CJ (at 36). As Gageler J said in Li (at [92]), the obligation is not to be implied as a condition of validity if its implication is inconsistent with the statutory text or with the nature or context of the statutory power or duty. His Honour continued:

"... The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or of the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed."

See also Minister for Home Affairs v DUA16 [2020] HCA 46, 385 ALR 212, Kiefel CJ, Bell, Keane, Gordon and Edelman JJ (at [26]).

The statute supplies not only the implication of the obligation, but its practical content in the particular case. Discerning the content is important, as the limits of statutory power and the limits of the Court’s supervisory jurisdiction are inextricably linked. As Allsop CJ said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1:-

7 ... There is ‘an area of decisional freedom’ of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. ...

8 The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: Li at [30], [66] and [105]."

As can be seen, the body of principle concerning “legal unreasonableness” has developed as a judicial response to statutory problems. It is a body of judge-made law concerned with the interpretation of statutes. However, as Allsop CJ explained, as a limitation on power, legal unreasonableness has its foundations in the principles and values of the common law, including the value of reasonableness and, I would add, rationality. Robertson J plainly had the same values in mind when he said in Jabbour (at [101]):-

"If it be necessary to find a conceptual underpinning for the role of this Court in judicial review of governmental action under non-statutory powers, the Court having jurisdiction under s 39B of the Judiciary Act, reflecting relevantly the jurisdiction of the High Court under s 75(v) of the Constitution, I would find it in the common law. The matter is discussed by Professor Fiona Wheeler in ‘Judicial Review of Prerogative Power in Australia: Issues and Prospects’ [1992] SydLawRw 32; (1992) 14 Sydney Law Review 432 at 461ff and by Ms Amanda Sapienza in ‘Judicial Review of Non-Statutory Executive Action: Australia and the United Kingdom’ (2018) 43 University of Western Australia Law Review 67. It would seem to me to be incongruous to have in the common law a principle of statutory interpretation implying reasonableness as a condition of the exercise of a discretionary power conferred by statute, but not to have in the common law any such principle existing outside statutory interpretation. The creation of ‘islands of power immune from supervision and restraint’ or ‘distorted positions’, referred to in Kirk by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [99], would thereby be avoided. The second respondent is of course an officer of the Commonwealth within s 75(v) and s 39B."

The respondents argue that Robertson J’s analysis is erroneous. They submit that the rule of statutory construction that supplies the implied obligation of legal reasonableness is not a free-standing rule, but rather is limited to discerning the intention of Parliament. In respect of non-statutory executive power, the respondents submit, the statutory foothold for the application of the principles discussed and applied in cases such as Li and SZMDS is missing.

These submissions tend to misapprehend the reasoning in Jabbour. Robertson J did not purport to directly apply a common law rule of statutory interpretation in a non-statutory context. Rather, his Honour said that the body of law that supplied the rule of statutory construction (the common law) also supplied a principled answer to the question before him.

Robertson J identified a principle “existing outside statutory interpretation” from which a restraint on the exercise of non-statutory powers may be identified and its contours defined. His Honour went on (at [102]) to describe the content of the condition as at least equivalent to that discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 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”. His Honour said that legal unreasonableness may also be established by reference to the result, that is, by demonstrating that no reasonable decision-maker would have refused to refer the intervention request to the Minister, thus adopting the test referred to in Abebe extracted at [292] above. Neither approach required the limits of the power to be discerned by direct reference to the scope or purpose of a statute. His Honour said that “the guidelines and characteristics of the power” in the Ministerial intervention cases nonetheless performed a function comparable to the scope and purpose of a statutory power. To the extent that the respondents submitted that Robertson J erroneously applied a body of law solely concerned with statutory interpretation to a non-statutory context, that submission must be rejected. The reasoning in Jabbour is more nuanced than that.

For my part, I consider it unhelpful to examine the executive power exercised in the present cases in a way that assumes a strict “statutory” or “non-statutory” dichotomy. All powers exercised by officers of the Commonwealth have the Constitution (itself a statute) as their ultimate source. The respondents have not suggested that statutory powers have outer limits, but non-statutory powers do not.

The High Court’s jurisdiction under s 75(v) of the Constitution is not, in terms, limited to the supervision of power conferred by statute. In discerning the outer limits of the power in issue in a particular case (and likewise the limits of the Court’s supervisory jurisdiction) it is of course necessary to have regard to the nature of the power, the legal context in which it is exercised and the factual subject matter upon which it operates. The factual subject matter in the present cases is plainly justiciable. There is no risk that the issue of the Constitutional writs would impermissibly interfere with a purely political field of activity.

When proper consideration is given to the legal framework in which the Guidelines exist, two layers of “statute” may be seen, depending on the lens used. Their identification results in the implication of an obligation of legal reasonableness notwithstanding that the non-referral decisions were not made “under” the Act in the direct sense.

Viewed narrowly, the legal framework is one in which the Act forms an integral part. As explained earlier, the Guidelines furnished the Departmental officers with the authority to do what otherwise could not lawfully be done. The circumstance that decisions made by reference to the Guidelines are not made “under” the Act for the purposes of the statutory “migration decision” definition should not obscure the obvious statutory framework in which the Guidelines were issued and their terms implemented. In the legal context, a condition of legal reasonableness attending the implementation of the Guidelines may be seen as a means of supervising the limits of the statutory duty that otherwise arises by reference to the Act: the obligation to make the Minister aware of the fact the request had been made (see [261] and [270] above) that would otherwise exist had the Guidelines not been issued. An excess of authority in implementing the Guidelines has the legal consequence that the non-referral “decision” lacks any form of lawful authority at all.

Adopting a wider view, the Departmental officers are seen as members of the Commonwealth executive, a branch of government having powers conferred by and described by (at least) s 61 and s 64 of the Constitution. There is no reason to suppose that the principles of the common law that have developed in response to problems concerning the limits of powers directly conferred by laws of the Commonwealth cannot also inform the limits of other powers having their source more directly in the Constitution. The limits on such powers are to be discerned from the structure and text of the Constitution itself, the common law suppling a body of principles against which the Constitution may be interpreted: Plaintiff M68/2015, Gageler J (at [138]).

As Gaudron J said in Abebe (at 116) (in a statutory context), if the statute conferring a decision-making power is silent on the question, “it is difficult to see why” the statute should not be construed as imposing a condition of reasonableness as a default position. Given the arguments now raised by the respondents, it is necessary to ask why that implication should arise so readily. The answer is that to act irrationally, arbitrarily or capriciously in the exercise of a statutory power will be to act contrary to the purpose for which the power is conferred, that is, to act in a way removed from any objective the legislature might conceivably have had in mind when conferring it.

In Jabbour, Robertson J said that it would be incongruous to have in the common law a principle of statutory interpretation implying reasonableness as a condition of the exercise of a discretionary power conferred by statute, but not to have in the common law any such principle existing outside the realm of statutory interpretation. I respectfully agree.

The respondents’ submission that it is impossible to define the outer limits of the power in question absent a statute must also be rejected. In the legal context discussed above, the practical application of the principle of legal unreasonableness is as follows. The power exercised by the Departmental officers is derived from s 61 and s 64 of the Constitution. The Minister’s administrative power to make the Guidelines is that vested in him by the Governor-General under s 61. The Department is established by the Governor-General under s 64. The Minister is appointed to administer the Department under s 64. The purpose of those devolutions of executive power is plain from the Constitutional text: the execution and maintenance of a law of the Commonwealth, namely s 351 of the Act. As identified earlier in these reasons, the power in s 61 of the Constitution (as devolved upon the Minister under s 64) extends to the administration of the whole of government. It could hardly be supposed that officers of a Department administered by the Minister (having responsibility for the execution of an Act within the bounds of legal reasonableness), should be held to a lower standard in the performance of their non-statutory powers or the discharge of their duties than that which applies to the Minister himself. As is the case with powers directly conferred by statute, the exercise of non-statutory powers in that way is apt to undermine the purpose for which the powers are conferred by (or via) the Constitution, and the role of those powers in the Constitutional framework.

In my view, Robertson J was correct to say that the guidelines there under consideration served a comparable function to a statute when discerning both the availability of the unreasonableness ground for judicial review and its practical content. That was the approach adopted by the primary judge in each of the present cases by reference to the Guidelines now in force. There was no appealable error in adopting that approach.

The Davis Appeal

a) Whether the primary judge erred in failing to find that the Assistant Director’s determination that the request for intervention did not meet the criteria for referral in the Guidelines was “a decision that no reasonable decision-maker could have made”?

The submission that the Assistant Director did not have regard at all to the impact upon Ms Giddins when the request for intervention was first made should be accepted. The failure to consider that impact is made plain in the reasons given in response to the “repeat request”, which contained an unqualified statement that there was “no evidence that any Australian citizen, permanent resident, or Australian business, would suffer hardship” had previously been provided. Plainly, evidence of that kind had previously been provided. The Assistant Director was wrong to state otherwise.

Given the role of the Guidelines identified earlier in these reasons, Mr Davis was entitled to have his assertions concerning Ms Giddins assessed against their criteria on his initial request for intervention. When Mr Davis complained that the initial assessment was flawed because of that failure, his complaint ought not to have been characterised as a “repeat request”. It could not be so characterised because although the asserted impact on Ms Giddins had previously been raised, it had not previously been considered.

However, notwithstanding the erroneous characterisation of Mr Davis’s letter of 15 May 2019 as a “repeat request”, the Assistant Director in fact went on to substantially consider the asserted impact upon Ms Giddins by reference to the materials provided. The Assistant Director did not refuse to consider the issue on the basis that the information asserted in the complaint did not amount to a changed circumstance. Rather, the Assistant Director gave the issue active consideration under the Guidelines as though the issue had not previously been considered. The Assistant Director concluded that there was no evidence that there was no other person in the community able to provide support to Ms Giddins of the kind that she claimed to receive from Mr Davis. That substantive conclusion was open to the Assistant Director to make.

The primary judge was correct to conclude that the demonstration of error in treating that letter as a “repeat request” could not assist Mr Davis on the application for judicial review, for the reasons that his Honour gave.

DCM20

The first ground concerned the decision-maker’s conclusion that the medical information DCM20 had provided did not indicate any significant deterioration in her parents’ health. It was submitted that the medical evidence provided in support of the repeat request clearly demonstrated a deterioration in the health of DCM20’s mother in the period following the 2016 request. It was submitted that letters from the mother’s general practitioner in 2016 and 2019 demonstrated that she suffered from significant medical conditions that were not present at the time that the 2016 request was made, including mobility restrictions requiring a higher level of care. It was submitted that the decision-maker was not medically qualified to form an opinion that there had not been significant deterioration in the mother’s health. It was submitted that the decision-maker fundamentally misunderstood that the nature of the health conditions constituted a significant change in circumstances, and so fundamentally misunderstood the request.

The primary judge identified that the focus of the challenge in the first ground of review was the decision-maker’s statement 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”. The primary judge concluded that the statement had not been shown to be illogical or irrational, because, inter alia that it was plainly open to the decision-maker to conclude that the mother’s health had not significantly deteriorated by reference to the brevity and inconclusive nature of the report by the mother’s general practitioner provided in 2019, which the primary judge considered in some detail.

The second ground concerned the treatment of DCM20’s claims to fear harm as a single woman of Indian ethnicity should she be returned to Fiji.

The primary judge observed that clause 4 of the Guidelines provided that “unique and exceptional circumstances” may include a significant threat to personal security, human rights or human dignity arising by reason of a person’s particular circumstances or personal characteristics, but that was subject to a qualification that the mistreatment must not “meet the criteria for the grant of any type of protection visa”. Section 48B of the Act authorised the Minister to “lift the bar” in s 48A which would otherwise prohibit the making of a second protection visa application where a prior protection visa application had been refused. The primary judge observed that the Minister had issued guidelines about the referral of matters to him for possible consideration of the exercise of the s 48B power.

It was submitted that the decision-maker’s finding that it remained open to make a request under s 48B was legally unreasonable because the decision-maker had mischaracterised the claims and failed to consider the claimed threat of harm as being a relevant consideration under clause 4 of the Guidelines, and because there was no intelligible justification for ignoring or disregarding the claims of significant personal threats. As the primary judge identified, those arguments depended on a proposition that the claim to fear harm was not a claim that would meet the criteria for the grant of a protection visa.

The primary judge held that the decision-maker had not disregarded this aspect of the request for intervention and had formed the view that it was a circumstance falling outside those contemplated by clause 4 of the Guidelines. It was common ground, her Honour said, that the claims were of such a nature that, if accepted, would satisfy the criteria for the grant of a protection visa.

I am not satisfied that there is appealable error in the approach of the primary judge. Her Honour was correct to find that the Guidelines were not misconstrued by the original decision-maker, at least not in a way that would give rise to a finding that the decision not to refer the request to the Minister was legally unreasonable. To the extent that it is necessary to express any concluded view as to the proper construction of the Guidelines, I respectfully share the view of the primary judge.

Conclusion:-

Both appeals must be dismissed.