BHAYAT v Minister for Immigration

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.