Australian Border Force correctly denied couple COVID-19 travel ban exemption to attend their son’s wedding, Federal Court finds
Baker v Commissioner of the Australian Border Force [2020] FCA 836
Summary
The Federal Court of Australia upheld the decision of the Australian Border Force (ABF) to refuse an application by an ultra-orthodox Jewish couple for an exemption to the current travel ban, in order to attend their son’s wedding in the United States.
The Court found the ABF had correctly determined that the couple did not provide a “compelling reason for needing to leave Australian territory”, as required for an exemption.
Facts
In light of the COVID-19 pandemic, on 25 March 2020 the Minster for Health made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth) (Determination).
Section 5 of the Determination provides that an Australian citizen or permanent resident must not leave Australian territory on an outgoing aircraft unless a general exemption applies under section 6 or the ABF grants a specific exemption "in exceptional circumstances" under section 7. Section 7(2) provides that "exceptional circumstances are demonstrated by the Australian citizen (or) permanent resident… providing a compelling reason for needing to leave Australian territory" (emphasis added).
First request for exemption
On 2 June 2020, Mr and Mrs Baker (the Applicants) requested an exemption under s 7 of the Determination, in order to attend the wedding of their youngest son on 23 June 2020 in New Jersey. The Applicants cited the following factors in support of their request:
their cultural and religious traditions require that they attend their son’s wedding;
the wedding ceremony is significant, because the Applicants’ son and his fiancée are not allowed to live together before they are married and it is one of the cornerstones of Jewish life; and
any deferral of the wedding would put a significant strain on the relationship of the Applicants’ son and his fiancée.
The Applicants were notified on 7 June 2020 that their application had been refused for the following reasons:
international travel is highly restricted to critical reasons only;
the reception venue and package was for 350 people, which is contrary to the Australian Government’s restrictions on weddings and social gatherings and poses a potential risk to the Australian community upon the Applicants' return; and
the travel is not appropriate to the risk posed to the Australian community.
Second request for exemption
The Applicants made a second request on 8 June 2020 citing the same reasons, but also correcting a misapprehension by the first decision-maker: there would only be 25 people at the wedding, not 350 people. Despite the correction, the ABF refused the second request on 11 June 2020, on the same grounds as the first request. In its response to the second request, the ABF added that:
no exceptional compassionate circumstances existed, and there was not a pressing need to travel; and
the family decided not to change the date of the wedding, in full knowledge of the current travel bans and the Applicants’ cultural customs.
Application for judicial review
The Applicants sought judicial review of the decisions on three grounds:
Ground 1
The Applicants submitted that the decision-makers had asked the wrong question in determining the applications because, despite not being required by section 7 of the Determination, they had:
reasoned that there was no “critical reason” to travel;
reasoned that “exceptional compassionate circumstances” did not exist; and
weighed up the proposed travel against the associated risk, rather than simply considering if there was a "compelling reason" to leave the country.
Ground 2
The Applicants submitted that the decision-makers inflexibly applied policy or fettered their discretion, without regard to the merits of the Applicants’ particular case or the relevant considerations of the reason for travel, being both “urgent and unavoidable personal business” and “compassionate or humanitarian grounds”.
Ground 3
The Applicants submitted that the decisions were made without affording the Applicants procedural fairness, including because they took into account the Australian Government’s restrictions on weddings and social gatherings and the potential risk to the Australian community.
There was no challenge to the validity of the Determination, nor the legal authority of the decision-makers to consider and determine the Applicants’ requests.
Decision
Justice Mortimer found that the delegates had assessed the strength and quality of the reasons advanced by the Applicants, as required of them. Her Honour dismissed the application and ordered the Applicants to pay the ABF’s costs.
Ground 1
Justice Mortimer did not accept that the decision-makers had “asked the wrong question”. Her Honour did not consider that the decision-maker's language had unduly narrowed the approach required by the Determination. Justice Mortimer explained that section 7(2) does not exhaust the concept of exceptional circumstances, but instead provides a clear statutory indication of what is included in section 7. The word “critical” was considered to be synonymous with “compelling”, in the sense that it justifies relief from what is otherwise an absolute prohibition on travel. Further, Mortimer J found exceptional circumstances include situations which indicate the need for compassion.
Her Honour also found that the risk associated with the Applicants’ proposed travel (including the location, duration and activities) was a permissible consideration. In fact, she held that it was inherent in the purpose and structure of the Determination because “the risk to the Australian community from the disease which is the subject of the Determination is the reason for the existence of the Determination. The overall purpose of the Determination is to reduce the risk of the contraction and spread of COVID-19 in the Australian community”.
Ground 2
Justice Mortimer rejected that there had been any fettering of the discretionary exemption power by the “policy” that was reflected on the Department of Home Affairs website and the ABF document titled ‘Operation Directive – Border Measures’. Her Honour held that the mere fact that some examples are given in the policy is not indicative of fettering, but rather is good administrative practice that assists prospective applicants and decision-makers in identifying what kinds of circumstances might be “exceptional”.
Her Honour found that there was ample evidence that the delegate had considered and engaged with the Applicants’ requests and supporting material. The absence of reference to every detail of the requests was not indicative of error, but was consistent with the somewhat summary nature of the administrative process and the context of the Determination as part of an emergency regime.
Ground 3
Justice Mortimer rejected the Applicants' argument that they had been denied procedural fairness.
Her Honour accepted the assumption that the power to grant or refuse an exemption under the Determination obliged the decision-maker to afford the Applicants procedural fairness. However, the content of a procedural fairness obligation depends on the statutory context, the context of the Determination (which is an unprecedented health emergency), and the relative urgency of any application. Her Honour found that the statutory context in this case did not require a degree of procedural fairness equivalent to a full administrative decision-making or merits review process. Instead, the obligation to afford a reasonable opportunity to be heard must conform to the circumstances of an emergency situation.
Her Honour held that the requisite level of procedural fairness had been afforded to the Applicants, because:
they had been capably represented and had fulsome submissions with supporting material made on their behalf;
they were given an opportunity to be heard;
there was no adverse material relied upon by the decision-makers of which they were not given notice; and
even if there was some denial of procedural fairness in the first refusal, this was cured by the second request because the Applicants were on notice of the factors considered by the delegate in the first refusal and had the opportunity to comment on them.
Finally, Her Honour stated that the decision-makers were not required, prior to their decision, to explain to the Applicants why their circumstances were not considered “exceptional”. This is because both the consideration of the potential risk of the travel to Australia, and the consideration of the restriction on wedding gatherings in Australia, "are legitimate factors in the very broad and qualitative assessment of what might be ”exceptional circumstances”, or might demonstrate a “compelling reason” for the need to travel".
Commentary
This decision involved a “very broad and qualitative assessment” of the factors relevant in assessing whether an exemption was available from the Determination, and highlights that such decisions will be made on a case-by-case basis. Justice Mortimer’s decision is also a reminder that the degree of procedural fairness required of decision-makers will depend on the statutory context of the decision-making power, the circumstances in which the decision is made and the urgency of the decision.
More broadly, this decision emphasises the now-familiar position adopted by courts around the world during the COVID-19 pandemic: individuals' human rights (in this case, the freedom of movement) can be validly restricted in times of crisis, in order to protect the general population's rights to life and health. Recent decisions in Australia (Commissioner of Police v Gibson) and the United States (Geller v De Blasio) restricting the right to protest, and the decision of the New Zealand High Court to approve the country's national lockdown (Borrowdale v Director-General of Health ), all reinforce that limits on personal freedom are likely to be justified during the current health crisis.
The full text of the decision can be found here.
Sarah Lethlean is a Solicitor at King & Wood Mallesons.