ARY16 v Minister for Immigration (No.2)
[2020] FCCA 2040
•24 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARY16 v MINISTER FOR IMMIGRATION (No.2) | [2020] FCCA 2040 |
| Catchwords: MIGRATION – Review of a refusal of Ministerial intervention – no jurisdiction. |
| Legislation: Migration Act 1958 (Cth), ss.417, 474, 476 |
| Cases cited: AOA16 v Minister for Immigration [2017] FCA 697 ARY16 v Minister for Immigration [2018] FCCA 1226 ARY16 v Minister for Immigration [2018] FCA 1768 ARY16 v Minister for Immigration [2019] HCASL 59 Minister for Immigration v SZSSJ [2016] HCA 29 Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31 |
| Applicant: | ARY16 |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 3300 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2020 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Mr N McArdle of Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed as incompetent for want of jurisdiction.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3300 of 2019
| ARY16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 16 December 2019. By that application the applicant seeks judicial review of a decision of the Minister through the Ministerial intervention unit notified on 25 November 2019 in relation to the non-exercise of the Minister’s discretion under s.417 of the Migration Act 1958 (Cth) (Migration Act). The application is supported by a short affidavit filed with it which I received. I also have before me as evidence the court book filed on 27 February 2020.
The background facts relating to this matter are set out in the Minister’s outline of submissions filed 17 July 2020.
The applicant appealed a decision of the Administrative Appeals Tribunal to this Court, then the Federal Court of Australia and sought special leave to the High Court of Australia. All of his appeals were dismissed.[1]
[1] ARY16 v Minister for Immigration [2018] FCCA 1226; ARY16 v Minister for Immigration [2018] FCA 1768; ARY16 v Minister for Immigration [2019] HCASL 59
On 8 November 2019, the applicant applied for Ministerial intervention under s.417 of the Migration Act.[2] On 25 November 2019, an officer of the Minister assessed that the request did not meet the guidelines for referral to the Minister and finalised the request without referral.[3]
[2] Court Book (CB) 3-60
[3] CB 62
The simple result in this matter is that the Court lacks jurisdiction. This has been stated numerous times in similar circumstances.
The applicant’s ground does not need to be considered in circumstances where this Court has no jurisdiction to review the decision. In any event, the actions undertaken by officers of the Minister on the Minister’s 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.[4]
[4] Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31 at [50]-[51] in the joint judgment of French CJ and Kiefel J; and at [100] in the joint judgment of Gummow, Hayne, Crennan and Bell JJ; Minister for Immigration v SZSSJ [2016] HCA 29 at [54]
Section 476(2)(d) of the Migration Act provides that this Court has no jurisdiction in relation to a “privative clause decision”, or purported privative clause decision, mentioned in subsection s.474(7) of the Migration Act. A “privative clause decision” is defined by s.474(2) of the Migration Act as a decision of an administrative character made or proposed to be made under the Migration Act or under a regulation or other instrument under the Migration Act other than a decision referred to in subsection (4) or (5) of s.474. Section 474(7)(a) provides that a decision of the Minister not to exercise, or not to consider to exercise, the Minister’s power under s.417 of the Migration Act is a “privative clause decision” within the meaning of s.474(2).
For these reasons, the intervention decision is a “privative clause decision” as mentioned in s.476(2)(d) of the Migration Act. As such, this Court lacks jurisdiction as the Minister has not made a migration decision under the Migration Act which is reviewable by this Court.[5]
[5] Plaintiff S10/2011 at [50]-[51] in the joint judgment of CJ French and Kiefel J; and at [100] in the joint judgment of Gummow, Hayne, Crennan and Bell JJ; AOA16 v Minister for Immigration [2017] FCA 697 at [12]
The consequence is that the application is incompetent for want of jurisdiction. I dismiss the application on that basis.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,200. I am satisfied that that amount is reasonable when assessed on a party and party basis. The applicant complains of impecuniosity but that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,200.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 August 2020
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