AOA16 v Minister for Immigration
[2017] FCCA 189
•8 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOA16 v MINISTER FOR IMMIGRATION & ORS | [2017] FCCA 189 |
| Catchwords: MIGRATION – Protection (Class XA) visa – request to the Minister to exercise power under s.48B(1) to allow a further application for a protection visa – Minister’s Guidelines – determination by the Minister in advance – effect of s.476(2) is to preclude Court from reviewing decision in question. |
| Legislation: Migration Act 1958 (Cth), ss.48A, 48B, 417, 474, 476 |
| Cases cited: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31 Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZ1 [2016] HCA 29 |
| Applicant: | AOA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
| Third Respondent: | NICKY SHAW, IN THE CAPACITY OF AN OFFICER OF THE COMMONWEALTH, OR IN THE CAPACITY OF AN OFFICER OF THE FIRST RESPONDENT’S DEPARTMENT |
| File Number: | MLG 515 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 7 October 2016 |
| Date of Last Submission: | 7 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 8 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn of Counsel |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Ms Arduca |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant’s application filed on 5 March 2016 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $3,606.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 515 of 2016
| AOA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION |
Second Respondent
| NICKY SHAW, IN THE CAPACITY OF AN OFFICER OF THE COMMONWEALTH, OR IN THE CAPACITY OF AN OFFICER OF THE FIRST RESPONDENT’S DEPARTMENT |
Third Respondent
REASONS FOR JUDGMENT
Nature of Application
By an application filed 15 March 2016, the applicant sought an order that the respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”). The applicant is seeking judicial review of a determination of the second and third respondents that the applicant did not meet the Ministerial Guidelines: Section 48A Cases and Request for Section 48B Ministerial Intervention (“the Guidelines”).
Background
The first respondent summarised the background of this matter in the outline of submissions filed 4 October 2016 as follows:
3.The applicant arrived on Christmas Island as an Illegal Maritime Arrival on 10 June 2012. He applied for a protection visa on 9 September 2012. The application was refused on 23 November 2012. The former Refugee Review Tribunal affirmed the decision on 22 January 2014.
The applicant appealed to the Federal Circuit Court on
18 February 2014 and the case was dismissed on 27 March 2015. An appeal to the Full Federal Court, made on
16 April 2015, was dismissed on 28 August 2015.
4.On 24 September 2015, the Department of Immigration and Border Protection (the Department) received a request from the applicant's legal representatives for ministerial intervention under s 417 of the Migration Act 1958 (the Act).
5.On 8 March 2016, the applicant was notified that the Minister for Immigration and Border Protection (the Minister) had personally considered his case and decided it would not be in the public interest to intervene and had not exercised his power under s 417.
6.The applicant was also advised that his case had been assessed against the Ministerial Guidelines: (Section 48ACases and Request for section 48B Ministerial Intervention) and that his case did not meet the guidelines and would not be sent to the Minister.
7.The application for judicial review is made in relation to the determination made under s 48B of the Act.
There is no application for judicial review in relation to the Minister’s decision not to intervene under s.417 of the Act.
Grounds of Application
The Grounds of Review are set out in the applicant’s application as follows (omitting particulars):
1.The Second or Third Respondent or both of them fell into jurisdictional error in that he or she or they failed to give proper genuine and realistic consideration to a relevant matter.
2.The Second or Third Respondent or both of them fell into jurisdictional error in that he or she or they misapprehended the law or applied the wrong test.
3.The Second or Third Respondent fell into jurisdictional error in that there was a reasonable apprehension that they were biased or a reasonable apprehension that they approached the task of assessing the applicant’s request without an open mind.
4.The Second or Third Respondent fell into jurisdictional error in that they failed to give the applicant procedural fairness or to act in accordance with natural justice.
5.The Second or Third Respondent or both of them fell into jurisdictional error in that their determination was unreasonable.
The applicant seeks relief against the refusal or failure to refer the application to the Minister in accordance with the Guidelines. In the applicant’s written submissions, he submits that the refusal by the Minister to exercise his power under ss.417 and 48B of the Act, was a decision made without taking into account a new claim advanced by the applicant of abduction, imprisonment, sexual assault and rape by Sinhalese soldiers or member of the CID in 2011. It was put forward by his legal representatives that this was significant as these events were said to have occurred well after the conclusion of the civil war between the LTTE and the Sri Lankan government.
The substance of the applicant’s submissions in support of the grounds of review are summarised in the applicant’s written submissions where he states at [25]:
There is divided authority on whether the decision not to refer to the Minister is conduct preparatory to the making of a decision and therefore within the jurisdiction of the Federal Circuit Court, or a decision of the Minister not to consider whether to exercise of his power under 48B and therefore not within jurisdiction of Fed Circuit Court or Fed Court, but only within jurisdiction of High Court. (See sections 474 and 476.) If the decision not to refer to the Minister is regarded as a decision of the Secretary or officer, it is within the jurisdiction of the Federal Circuit Court, but if it is regarded as a decision of the Minister only the High Court has jurisdiction.
The first respondent submits that this Court does not have the jurisdiction to determine the application. For the reasons that follow, I accept that the Court does not have jurisdiction to determine this matter.
Relevant Statutory Provisions
Section 48A(1) provides that the prohibition on making a further application for a protection visa is subject to a discretionary exception, provided for in s.48B of the Act. Section 48B is a non-compellable power, which gives the Minister the discretion to respond to a request or to consider any class of case for the exercise of those powers. Section 48B provides:
Minister may determine that section 48A does not apply to non-citizen
(1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
(2)The power under subsection (1) may only be exercised by the Minister personally.
…
(6)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.
Section 476 of the Act relates to the court’s jurisdiction and provides:
(1)Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2)The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c)a privative clause decision, or purported privative clause decision, made personally by the Minister under sections 501, 501A, 501B or 501C;
(d)a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
Section 474 of the Act provides relevantly:
Decisions under Act are final
(1)A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
“privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
…
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
…
(7)To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):
(a)a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351 or417 or subsection 503A(3);
Section 417 of the Act provides that the Minister may substitute a more favourable decision:
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
(3)The power under subsection (1) may only be exercised by the Minister personally.
…
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
Jurisdiction
The applicant submits that the refusal by the Minister to exercise his power under s.48B of the Act, was a decision made without taking into account a new claim advanced by the applicant.
The High Court in the matter of Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31, considered the application of ss.48B and 417 of the Act which confers powers upon the Minister to intervene with respect to the granting of visas under the Act. In that matter, the plaintiffs submitted that in deciding whether or not to exercise the relevant powers, the Minister was obliged to afford procedural fairness to the plaintiffs.
French CJ and Kiefel J held at [50] –[51]:
50.The purpose and nature of the powers conferred by each of the dispensing provisions in these proceedings appears from their respective texts. It is clear from their terms that the Minister is under no duty to respond to a request for his or her consideration of the exercise of those powers. Nor is the Minister under a duty, independent of any such request, to consider any class of case for the exercise of those powers. With no statutory duty to consider the exercise of the Minister's powers being enlivened by a request or by the occurrence of a case to which the power might apply, no question of procedural fairness arises when the Minister declines to embark upon such a consideration. If, on ministerial instructions, certain classes of request or case are not even to be submitted to him or her for consideration, the position in law is unchanged. There is no exercise of a statutory power under the Act conditioned upon compliance with the requirements of procedural fairness.
…
There is, however, nothing about the character of the guideline processes, as an exercise of the executive power of the Commonwealth or otherwise, that attracts to them a requirement to observe procedural fairness.
Procedural fairness can be implied only as a condition of the exercise of a statutory power.[1] In a matter such as this, where the Minister had not personally made a procedural decision of a personal or substantive nature, the effect of s.476(2) of the Act is to preclude this Court from engaging in a review of this decision.
[1] Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZ1 [2016] HCA 29 at [75]
Furthermore, the applicant has not identified the manner in which he was denied procedural fairness and does not disclose an arguable case that the determination was unreasonable or irrational to the extent that it may afford a distinct ground of review.
The proper approach to the resolution of the issues raised by this application were considered by Nettle J in an application to show cause in the High Court in AAG15 v Minister for Immigration and Border Protection [2016] HCATrans 131 (3 June 2016). His Honour stated in relation to whether there was a requirement to observe procedural fairness on the part or departmental officers when considering the guidelines or whether the guidelines imposed an obligation on the Minister to intervene:
Furthermore, as was held in Plaintiff S10 of 2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 654‑655 paragraphs 50 and 51 in the joint judgment of Chief Justice French and Justice Kiefel; and at 668 paragraph 100 in the joint judgment of Justices Gummow, Hayne, Crennan and Bell, the Minister is under no duty to respond to a request for his or her consideration of the exercise of the power conferred by section 417, and it makes no difference at law that, on the basis of the ministerial instructions laid down in the guidelines, certain classes of requests are not to be submitted to the Minister for his or her consideration. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134 of 2002 (2003) 211 CLR 441 at 460‑461 paragraphs 44‑48; and 474 paragraphs 99‑100 in the judgment of Justices Gaudron and Kirby. The work done by officers acting under the guidelines involves the acquisition of information and categorisation of requests or cases. It is an executive function incidental to the administration of the Act which stands outside the conventional statutory regime. Nothing about the character of the guideline processes, whether as an exercise of the executive power of the Commonwealth or otherwise, is sufficient in itself to attract a requirement to observe procedural fairness or to impose an obligation on the Minister to intervene.
In this matter, the evidence comprised of a letter from the third respondent to the applicant dated 8 March 2016 establishes that no decision has been made by the officers of the department who assessed the case determined that it did not meet the guidelines and was not sent to the Minister.
As there was no decision made by the Minister in relation to his dispensing powers under s.48B there was no migration decision.
In those circumstances where the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister to make the procedural decision has no statutory basis and does not attract procedural fairness.[2][2] Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZ1 [2016] HCA 29 at [55].
Procedural fairness can be implied only as a condition of the exercise of a statutory power.[3] In a matter such as this, where the Minister had not personally made a procedural decision of a personal or substantive nature, the effect of s.476(2)(d) of the Act is to exclude the jurisdiction of this Court.[4]
[3] Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZ1 [2016] HCA 29 at [75]
[4] Ibid at [70]-[71]
Even if the Court had jurisdiction in relation to the decision by the second and third respondents not to refer the matter to the Minister, that application will fail because there is no obligation on them to observe procedural fairness in relation to the work done by them acting under the guidelines.
I determine that this Court does not have jurisdiction to determine the application brought by the applicant, and accordingly order that it be dismissed.
I order that the applicant’s application filed on 5 March 2016 be dismissed and the applicant pay the first respondents costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 8 February 2017
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