AKB17 v Minister for Home Affairs

[2018] FCCA 3924

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKB17 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3924

Catchwords:
MIGRATION – Jurisdiction – whether refusal to refer request for Ministerial intervention to Minister is amenable to judicial review – whether Minister made personal procedural decision – no jurisdiction – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.417, 474(4), (5) & (7), 476 and 476(2)

Cases cited:

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180

AOA16 v Minister for Immigration [2017] FCA 697

Applicant: AKB17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: DIRECTOR MINISTERIAL INTERVENTION (NATIONAL)

File Number: ADG 296 of 2018

Judgment of: Judge Heffernan

Hearing date: 7 December 2018

Date of Last Submission: 7 December 2018

Delivered at: Adelaide

Delivered on: 7 December 2018

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Ms L Butler

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of THREE THOUSAND, SEVEN HUNDRED AND THIRTY SEVEN DOLLARS ($3,737.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 296 of 2018

AKB17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

DIRECTOR MINISTERIAL INTERVENTION (NATIONAL)

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. This is an application by the applicant for judicial review. She seeks a writ of mandamus to require the second respondent to refer her request for ministerial intervention to the Minister, to enable him to then consider exercising his personal power under s.417 of the Migration Act 1958 (Cth) (‘the Act’). The grounds upon which the application have been made are:

   “(1)   The Second Respondent acted arbitrarily and thereby committed a jurisdictional error by failing to refer the Applicant’s medical reports to a Medical Officer of the Commonwealth (MOC) for assessment.

   (2)     The Second Respondent acted arbitrarily and thereby committed a jurisdictional error by unreasonably refusing to refer the Applicant’s request for ministerial intervention to Minister.” [sic]

2. The applicant has filed in support of that application her affidavit dated 1 August 2018, which I have read for the purpose of these proceedings.  It is not necessary for me to describe the contents of that affidavit.  I simply observe that it sets out the background as alleged by the applicant behind the refusal to refer a request that her matter be referred to the Minister. 

3. The first respondent does not dispute that the request for referral was made in the circumstances set out in the applicant’s affidavit. The position taken by the first respondent is that this Court does not have the power to entertain this application or, to put it another way, simply has no jurisdiction under the Act to conduct the review and issue the writ sought by the applicant.

4. The background to this matter is that the application was filed on 2 August 2018 and it seeks a review of the assessment made by a Departmental officer on 25 July 2018.  That arises in this way.  The applicant applied for and was refused a protection visa.  She applied for a merits review before the Administrative Appeal Tribunal (‘AAT’), which affirmed that refusal decision on 6 January 2017.  The applicant then sought judicial review of the AAT decision.  That application for judicial review was dismissed in May 2018.

5. The applicant then made a request, through her solicitor, to the Minister, under s.417 of the Act, to exercise his personal power to intervene in her case. That is a non-compellable power which, if exercised, would enable the Minister to substitute a more favourable decision in place of the decision of the Tribunal. Various correspondence was sent to the relevant Departmental officers. Ultimately, the Department decided that having considered the request as against the Minister’s guidelines, the request did not meet the guidelines for referral to the Minister and for that reason the Department declined to refer the matter to the Minister.

6. The applicant is self-represented and has made the straightforward submission that it is a matter for the Court to determine whether it has power to entertain her application.  She says that if the Court concludes that it does not have such power, then she will be bound by that decision. 

7. The first respondent has filed a written outline of submission. It submits, correctly, that the power of this Court in migration matters arises under s.476 of the Act, which gives this Court the same original jurisdiction in relation to a migration decision as the High Court has under the Australian Constitution.

8. However, subsection (2) of that section provides that this Court has no jurisdiction in relation to a privative clause decision, or a purported privative clause decision, mentioned in subs.474(7). A privative clause decision means a decision of an administrative character made or proposed to be made under the Act or under a regulation or other instrument under the Act other than a decision referred to in subsection (4) or (5) of s.474.

9. The decision complained of in this matter is a privative clause decision. This much is made abundantly clear by the terms of s.474(7) of the Act, which specifically states that a decision of the Minister not to exercise or not to consider the exercise of the Minister’s power under sections including s.417 is a privative clause decision. That forms the statutory basis for the Minister’s submission that this Court does not have jurisdiction.

10. This question has been determined by both the High Court and the Federal Court, and those decisions have been followed by a number of decisions in this Court.  The High Court in the Minister for Immigration and Border Protection v SZSSJ[1] held that unless there was a personal procedural decision by the Minister to make a substantive decision in respect of a case or a class of cases, then actions undertaken by the Department on his instructions to assist him on whether to make a procedural decision do not have a statutory basis, and for that reason they do not attract a requirement to afford procedural fairness. 

    [1] (2016) 259 CLR 180.

11. There is no evidence in this matter that the Minister made a personal procedural decision. For that reason, the decision made by the Departmental officer or officers did not have a statutory basis. It was simply an assessment made by a Departmental officer against guidelines provided by the Minister. That decision did not attract a requirement for procedural fairness. As such, it not being a statutory decision under the Act, it could not be regarded as a migration decision. As a result, this Court does not have jurisdiction.

12. The Federal Court reached the same conclusion in the decision of AOA16 v Minister for Immigration.[2]  The facts of that matter were very similar to this case and involved a request to the Minister to exercise particular powers.  There was no decision by the Minister in that case, and therefore no migration decision.  I note that an application subsequently made in AOA16 in the original jurisdiction of the High Court was unsuccessful. 

    [2] [2017] FCA 697.

13. I have been referred to and considered a number of examples of authorities whereby this Court has acted on the basis of those decisions in matters relating to requests for referral to the Minister and in which the Court has acted on the basis that it has no power to entertain an application for judicial review of such a decision.  I have come to the conclusion that on the basis of High Court, Full Court and Federal Court authorities, I do not have the power to hear the application for judicial review and the request for a writ of mandamus that has been made by the applicant. 

14. Accordingly, I dismiss the application and make the orders to be found at the beginning of these reasons.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 16 January 2019