Case Background

The applicants "Esther Baker and Charles Baker" are ultra-orthodox Jews.
They have nine children, three of whom live in the United States.
The candidates wish to head out to New Jersey to go to the wedding of their
most youngest son on 23 June 2020 however can't make a trip because of the
Australian Government forced Biosecurity Act 2015, which decides the
limitation on outbound travel for Australian residents and permanent
residents because of the progressing COVID-19 outbreak.
To get the exemption from the Biosecurity Act 2015, Baker's legal advisor
"Mr M Guo" from Carina Ford Immigration Lawyers have filed an
application in the Federal Court of Australia and "Mr P Knowles" have
showed up as the counsel for the respondent which was "Commissioner of
the Australia Border Force".
Applicants had applied twice for the exemption but denied both of the times.
In their first application for an exemption which was applied on second of
June, the applicants have referred the following issues:
(a) The applicant's social and strict customs necessitate that they be at their
son's wedding.
(b) The wedding function is critical, on the grounds that the couple are not
permitted to together before they are married and it is one of the foundations
of Jewish life.
(c) Any deferral of the wedding would put a huge strain on the relationship of
the applicants’ son and his fiancée.
The Applicants looked for legal review of the decisions on three grounds:
Ground 1
The Applicants presented that the decision-makers had posed some
unacceptable question in deciding the applications in light of the fact that,
regardless of not being needed by section 7 of the Determination, they had:
- Reasoned that there was no "critical reason" to travel;
- Reasoned that "exceptional compassionate circumstances" didn't exist; and
- Weighed up the proposed travel against the related risk, instead of basically
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.
On 7 June 2020, the applicants were told that their application had been
declined expressing that, under the current worldwide pandemic global travel
is exceptionally confined to basic reasons as it were. Participation at a
wedding doesn't meet this criteria.
On 8 June 2020, the applicants made a second application for an exemption,
the candidates alluded to similar issue. They tried to address a supposed
confusion with respect to the primary decision-maker to be specific, that
there would be 350 individuals at the wedding, when truth be told it is
proposed there would only be 25 guests. They additionally presented that the
primary decision-maker applied some unacceptable test in deciding their
request.
This time, a similar submission is currently put by the applicants in their
application for judicial review.
In any case, the second application also got dismissed on ninth of June, 2020
by the court expressing that, exceptional sympathetic conditions don't exist to
affirm the applicant to leave Australian domain as the travel is not urgent or
pressing. Neither participation at a wedding nor the applicant’s readiness to
submit to isolate laws on return - should travel be conceded - doesn't
comprise a pressing need to travel.

Implications
This decision involved a "exceptionally broad and subjective assessment" of
the factors relevant in surveying whether an exemption was accessible from
the Determination, and features that such decisions will be put forth on a
defense by-case premise.
Justice Mortimer's decision is additionally a reminder that the level of
procedural fairness expected of decision-makers will rely upon the legal
setting of the decision-making power, the conditions wherein the decision is
settled on and the urgency of the decision.
Furthermore, family settled on the dynamic choice from the beginning to not
move the wedding to another date that would profit the applicants to travel
when travel bans were lifted. This was a choice made by the family in full
perspective on the current travel bans and their cultural customs set up during
this worldwide pandemic.
There being no misconception of the assignment, it was a matter for each
delegate whether what was set out by the applicants constituted “exceptional
circumstances”. Why the archive was not fulfilled of this is made particularly
clear in the details of the subsequent refusal, with the accentuation about the
family choice not to delay the wedding, as different families have decided to
do.
Moreover one has to say that, applicant's counsel competently built up his
contentions, with impressive detail in the time accessible however the judge
haven't been convinced any of them ought to succeed.

Principles of Statutory which came while employing the

decision by the Judge
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”.
In this ground, Justice Mortimer has considered the Literal Rule which says:
"The courts won't inspect the intention of Parliament. This rule is used
regularly as judges are not approved to make laws and by following the
statute to the letter judges can't be blamed for making law."
While failing this specific ground judge have sticked with what Section 7(2)
of the Determination provide:
"exceptional circumstances are demonstrated by the Australian citizen,
permanent resident or operator providing a compelling reason for needing to
leave Australian territory."
Apart from that, Section 477 of the Biosecurity Act 2015 (1[a]) was also been
considered by the judge here
“(1)    During a human biosecurity emergency period, the Health
Minister may determine any requirement that he or she is satisfied is
necessary:

(a)    to prevent or control:

(i)    the entry of the declaration listed human disease into Australian

territory or a part of Australian territory; or

(ii)    the emergence, establishment or spread of the declaration listed

human disease in Australian territory or a part of Australian territory

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.
The purposive approach came into consideration while rejecting the second
ground. This approach is implemented to ensure the law is effective as
Parliament would have intended.
“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’.”
This above paragraph is the clear indication of what are the principles here
the judge is applying.

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". 

Here, purposive approach came into play again where we clearly see the judge
by saying :

“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.”