BHAYAT v Minister for Immigration - [2020] FCCA 3259

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHAYAT v MINISTER FOR IMMIGRATION

[2020] FCCA 3259

Catchwords:
MIGRATION – Request for Ministerial Intervention – where claims and circumstances found not to be unique or exceptional when assessed against the Minister’s Guidelines – whether there is a decision engaging the Court’s jurisdiction – no decision engaging the Court’s jurisdiction – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 474, 476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant:

SYLVIA BHAYAT

Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number:

SYG 1087 of 2020

Judgment of:

Judge Street

Hearing date:

1 December 2020

Date of Last Submission:

1 December 2020

Delivered at:

Sydney

Delivered on:

1 December 2020

REPRESENTATION

Solicitors for the Applicant:

Mr R Turner, Turner Coulson

Solicitors for the Respondent:

Ms B Griffin, Australian Government Solicitor

ORDERS

Leave is granted to the applicant to rely upon the amended application annexed to the submissions filed on 19 November 2020 and the Court directs that the amended application be properly filed on or before 4 December 2020 in that form.
The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s cost fixed in the amount of $3,737.00.

THE COURT NOTES THAT:

The proceedings would otherwise have been dismissed for want of jurisdiction as sought in the application in a case.

DATE OF ORDER: 1 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1087 of 2020

SYLVIA BHAYAT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

This is an amended application in a case alleging an entitlement to bring proceedings for a Constitutional writ under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision made on 18 March 2020, under s 351 of the Act in respect of the Minister’s powers. Contrary to the applicant’s assertion the claims and circumstances presented are not unique or exceptional when assessed against the Minister’s Guidelines and the case is assessed as not meeting the guidelines for referral to the Minister. Nor it that state of affairs a jurisdictional fact or a matter capable of engaging this Court’s jurisdiction.
The Court’s reference to the decision in that regard is simply seeking to identify what it is that the applicant is contending engages the Court’s jurisdiction.
Section 351 of the Act is as follows:
351 Minister may substitute 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 349 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.
(2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 3259
Decision Date: 1 December 2020

CaseChat Overview and Summary

The applicant, Mr. Bhayat, sought judicial review of a decision by the Minister for Immigration concerning a request for ministerial intervention under section 351 of the Migration Act 1958 (Cth). The dispute centred on whether the Minister's refusal to substitute a more favourable decision, based on the applicant's claims and circumstances not being unique or exceptional according to the Minister's Guidelines, constituted a reviewable decision within the Court's jurisdiction. The matter was heard in the Federal Circuit Court of Australia before Judge Street.

The primary legal issue before the Court was whether there had been a "migration decision" that engaged the Court's jurisdiction under section 476 of the Migration Act. This involved determining whether the Minister's refusal to exercise the power under section 351(1) to substitute a more favourable decision, or the refusal to refer the matter for such consideration, amounted to a jurisdictional error. The Court also considered whether the applicant's arguments regarding the Minister's Guidelines and the exceptional nature of his circumstances constituted a reviewable error or merely an invitation for merits review.

Judge Street reasoned that section 351(7) of the Act explicitly states that the Minister has no duty to consider whether to exercise the power of substitution, regardless of whether a request is made. Consequently, the Court found that there was no migration decision that engaged its jurisdiction. The Court held that the applicant's submissions concerning the Minister's Guidelines and the assessment of his circumstances amounted to a request for merits review, which does not involve a jurisdictional fact or an error capable of engaging the Court's jurisdiction. The refusal to refer the matter was not considered a step in a migration decision, and the Court noted that this refusal was not made by the Minister personally. The Court concluded that there was no decision or fact-finding that engaged the principles of legal unreasonableness, and the reasons provided for the refusal were logical and rational.

The application was dismissed under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth), with the applicant ordered to pay the first respondent's costs fixed at $3,737.00. The Court noted that the proceedings would otherwise have been dismissed for want of jurisdiction.

Orders

Orders of the court

ORDERS

1. Leave is granted to the applicant to rely upon the amended application annexed to the submissions filed on 19 November 2020 and the Court directs that the amended application be properly filed on or before 4 December 2020 in that form.

2. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s cost fixed in the amount of $3,737.00.

THE COURT NOTES THAT:

The proceedings would otherwise have been dismissed for want of jurisdiction as sought in the application in a case.

DATE OF ORDER: 1 December 2020

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 351 of the Act is as follows: 351 Minister may substitute 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 349 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. (2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act. (3) The power under subsection (1) may only be exercised by the Minister personally. (4) If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that: (a) sets out the decision of the Tribunal; and (b) sets out the decision substituted by the Minister; and (c) sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest. (5) A statement made under subsection (4) is not to include: (a) the name of the applicant; or (b) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person. (6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. (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. Subsection (7) makes clear that the Minister has no duty to consider whether to exercise the powers. Notwithstanding the skilful submissions of Mr Turner, the Court does not accept that there is any migration decision within this Court’s jurisdiction. Further the submissions concerning the Minister’s Guidelines and submission as to the circumstances meeting the same is merits review which does not involve any jurisdictional fact or an error capable of engaging this Court’s jurisdiction. Mr Turner sought to rely upon section 474(3) of the Act in relation to the breadth of the procedural matters that might be picked up within the scope of the migration decision. However, given the terms of s 351 and in particular subsection (7), where a matter has not been referred to a Minister, there is no decision engaging the Court’s jurisdiction under s 476. The refusal the request to refer is not a step in a migration decision. It matter that the refusal to refer was not made by the Minister personally. The submission that there was a non-existent fact is not on the material correct, invites merits review and does not involve any jurisdictional fact. There is no decision or fact finding that engages the principles of legal unreasonableness. Further the reasons given for the refusal to refer are logical, rational and were open on the material.

Ratio Decidendi

Legal Principle Established

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