CLA15 v Minister for Home Affairs - [2019] FCA 262

FEDERAL COURT OF AUSTRALIA
CLA15 v Minister for Home Affairs [2019] FCA 262

Appeal from: Application for extension of time: CLA15 v Minister for Home Affairs (No 2) [2018] FCCA 1497

File number: NSD 1401 of 2018

Judge: ALLSOP CJ

Date of judgment: 28 February 2019

Catchwords: MIGRATION – application for protection visa refused – request for ministerial intervention under s 48B of the Migration Act 1958 (Cth) – request did not meet the Minister’s Guidelines and finalised without referral to the Minister – non-compellable power – no personal decision of the Minister and therefore no statutory basis of decision – no requirement to afford procedural fairness – no jurisdiction – application dismissed with costs

Legislation: Migration Act 1958 (Cth) ss 48A, 48B, 474

Cases cited:
AOA16 v Ministerfor Immigration and Border Protection [2017] FCA 697

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180

Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636

Date of hearing: 28 February 2019

Registry: New South Wales

Division: General Division

National Practice Area Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 16

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: T Reilly

ORDERS

NSD 1401 of 2018

BETWEEN:
CLA15

Applicant

AND:
MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

ALLSOP CJ

DATE OF ORDER:

28 FEBRUARY 2019

THE COURT ORDERS THAT:
1.The application for an extension of time in which to file an application for leave to appeal and for any appeal be refused and dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)
ALLSOP CJ:

This is an application for an extension of time and leave to appeal from an order made by a judge of the Federal Circuit Court on 4 June 2018 dismissing an application for judicial review of a purported decision of a person within the Department of Home Affairs not to refer an application for Ministerial intervention under s 48B of the Migration Act 1958 (Cth) (the Act) to the Minister.
By way of background, the applicant is a citizen of Bangladesh who arrived in Australia on 27 June 2006. In December 2013, the applicant applied for a Protection (Class XA) Visa, which was refused by a delegate of the Minister. The applicant applied to the then Refugee Review Tribunal for review of this decision. The Tribunal Member noted that the applicant appeared to be under a misapprehension as to the process of Ministerial intervention:
[5] … It is relevant to note here that the applicant was unrepresented and had apparently misunderstood the process relating to what is known as Ministerial intervention. A Tribunal officer therefore contacted him to explain that his case could not be referred to the Department for consideration by the Minister…

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: [2019] FCA 262
Decision Date: 28 February 2019

CaseChat Overview and Summary

The applicant, a person from a non-specified country, lodged an application for a protection visa which was subsequently refused. The applicant then sought ministerial intervention under section 48B of the Migration Act 1958 (Cth), arguing that the Minister's refusal did not adhere to the Minister’s Guidelines. The Minister did not refer the matter to himself and finalised the request without intervention, leading to the applicant lodging an application for judicial review. The central issue was whether the Minister’s decision not to refer the matter to himself, and finalise it without intervention, was subject to judicial review.

The court considered the nature of the Minister's power under section 48B of the Migration Act, which was non-compellable, meaning the Minister was not required to exercise the power. As there was no personal decision by the Minister, there was no statutory basis for the decision. Consequently, the court held that no procedural fairness was required to be afforded, and it had no jurisdiction to review the decision. The applicant's argument that the Minister’s decision was flawed because it did not meet the Minister’s Guidelines was rejected, as the Minister’s Guidelines did not impose any binding obligations on the Minister.

The court dismissed the application for judicial review, concluding that the Minister's decision not to refer the matter to himself and finalise it without intervention was not subject to judicial review. The application for an extension of time to lodge an appeal was also dismissed, with costs awarded against the applicant. The court ruled that the decision-making process under section 48B of the Migration Act did not require procedural fairness, and thus, there was no statutory basis for the decision, rendering it immune from judicial review. The case underscores the limited scope of judicial intervention in ministerial decisions under the Migration Act.

Orders

Orders of the court

1. The application for an extension of time in which to file an application for leave to appeal and for any appeal be refused and dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Application for extension of time: CLA15 v Minister for Home Affairs (No 2) [2018] FCCA 1497
File number:	NSD 1401 of 2018
Judge:	ALLSOP CJ
Date of judgment:	28 February 2019
Catchwords:	MIGRATION – application for protection visa refused – request for ministerial intervention under s 48B of the Migration Act 1958 (Cth) – request did not meet the Minister’s Guidelines and finalised without referral to the Minister – non-compellable power – no personal decision of the Minister and therefore no statutory basis of decision – no requirement to afford procedural fairness – no jurisdiction – application dismissed with costs
Legislation:	Migration Act 1958 (Cth) ss 48A, 48B, 474
Cases cited:	AOA16 v Ministerfor Immigration and Border Protection [2017] FCA 697 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636
Date of hearing:	28 February 2019
Registry:	New South Wales
Division:	General Division
National Practice Area	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	16
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	T Reilly

JUDGE:	ALLSOP CJ
DATE OF ORDER:	28 FEBRUARY 2019