BHAYAT v Minister for Immigration
[2020] FCCA 3259
•1 December 2020
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 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.
The matter is one which the Court also treated as having before it not just on a jurisdictional challenge but actually under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) and the parties did not oppose that course.
The grounds
The grounds in the application are as follows:
1.The decision maker did not have the power to make the decision.
Particulars
a. There is no power for the decision maker to refuse to refer a request to the Minister.
b. Even if the Ministerial Guidelines is authority to make a decision, by acting outside any authority given by the Guidelines, the decision maker acted beyond that authority.
2.The decision maker based the decision on a fact that did not exist.
Particulars
a. Section 4 of the Ministerial Guidelines states that cases that have unique or exceptional circumstances may be referred to the Minister including cases that have strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
b. The Ministerial Guidelines also state that cases may be referred to the Minister with compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.
c. In the Applicant's request to the Minister, the strong compassionate circumstances referred to were the Applicant's 77 year old mother who is an Australian citizen and suffers from diabetes, arthritis and a degree of cognitive impairment which requires 24 hour/7 day a week care provided by the Applicant. Further, the Applicant provided a BUP A medical assessment which found that the Applicant met the prescribed criteria for the Carer visa.
d. The decision maker committed a jurisdictional error by finding that the request did not meet the guidelines for referral to the Minister when the request fulfilled Section 4 of the Ministerial Guidelines by provided details of serious, ongoing and irreversible harm and continuing hardship to an elderly Australian citizen.
3.The decision maker's decision was affected by legal unreasonableness.
Particulars
a. The decision maker had evidence before it that the Applicant met the guidelines of unique or exceptional circumstances and no reasonable decision maker would have failed to refer the application to the Minister by reference to the description in the Ministerial guidelines: refer to Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438.
Mr Turner sought to contend that the applicant met, as a matter of fact, the criteria under the Ministerial Guidelines and, accordingly, that there had been a decision made on a fact that does not exist. That was nothing more than a merits review submission based on the applicant’s circumstances, contending that the applicant met the guidelines. That contention is a merits review invitation. That Court rejects the argument that there was a fact that does not exist and does not identify any arguable case of error as to a jurisdictional fact.
The Court is satisfied that the application does not, on its face, raise an arguable case for the relief claimed, and the Court is satisfied that the matter is one in respect of which it is appropriate to exercise the Court’s powers under r 44.12 of the Rules in respect of the application. Further for the reasons given the applicant has not established that this Court has jurisdiction.
The Court will also observe that this application is one which, on its face, that falls within Part 8B of the Act because it is an application of a kind that had no reasonable prospect of success and was bound to fail.
The Court takes into account the succinct and concise submissions presented by Mr Ray Turner, who is one of the best and most able migration solicitors in Australia.
Given the concise argument that was developed, the Court is not satisfied that this is an appropriate matter in which to exercise the powers under Part 8B of the Act. The Court would, however, make clear that further applications before the Court of this kind are likely to engage the Court’s powers under Part 8B, and the Court will have to give careful and close attention to whether it should exercise those powers if an application of a similar kind is advanced before the Court.
I certify that the preceding twelve (12) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 December 2020 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Date: 11 December 2020
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