FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALPATADU v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1599 |
| Catchwords: MIGRATION – Decision of a Departmental officer not to refer a matter for Ministerial Intervention – whether the Court has jurisdiction – no jurisdiction – no jurisdictional error in any event – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.11.04 Migration Act 1958 (Cth), pt.7, ss.48B, 351, 417, 474, 476, 477, 499 Migration Amendment Regulations 2005 (No. 8) (Cth), schedule 7, item 1 |
| Applicant: | UDAYA KOSMAPATABENDIGE DALPATADU |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1475 of 2017 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 12 February 2019 |
| Date of Last Submission: | 12 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 18 June 2020 |
REPRESENTATION
| Solicitors for the Applicant: | TAI Lawyers |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
| Second Respondent | Submitting appearance, save as to costs |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application, as amended, be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1475 of 2017
| UDAYA KOSMAPATABENDIGE DALPATADU |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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- Case
- [2020] FCCA 1599
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether it had jurisdiction to review the departmental decision not to refer the matter for Ministerial Intervention, and if so, whether that decision was affected by jurisdictional error, including being ultra vires or legally unreasonable. The applicant contended that the departmental decisions were reviewable "non-privative clause decisions" and that the Minister's guidelines were not followed. The Minister argued that the Court lacked jurisdiction because the decision not to refer a case for intervention under section 351 of the Act does not constitute a "migration decision" as defined by the Act, and therefore falls outside the Court's limited jurisdiction.
The Court determined that it did not have jurisdiction to review the departmental decision. Applying the principles established in *Minister for Immigration and Border Protection v SZSSJ* and *CLA15 v Minister for Home Affairs*, the Court held that the process of assessing whether a case meets the guidelines for referral to the Minister under section 351 is a non-statutory executive power exercised by the Department. The Minister had not personally made a procedural decision to consider the exercise of the non-compellable power under section 351. Consequently, the departmental assessment and refusal to refer were not decisions made under the Act that attracted the Court's jurisdiction for judicial review.
The applicant's application was dismissed. The Court ordered that the name of the First Respondent be amended and that the applicant pay the First Respondent's costs fixed in the sum of $7,467.
Orders
Orders of the court
1.
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.
The Applicant’s application, as amended, be dismissed.
3.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE
MLG 1475 of 2017
UDAYA KOSMAPATABENDIGE DALPATADU
Applicant
And
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction
1.
By amended application filed on 19 December 2018 (Amended Application), the Applicant seeks judicial review of a decision dated 20 June 2017 of an officer of the department of the First Respondent (Minister) to not refer the Applicant’s son’s visa refusal to the Minister for intervention and personal consideration under s.351 of the Migration Act 1958 (Cth) (Act).
2.
Before the Court is the Amended Application, a Court Book comprising of 194 pages, an affidavit of Coenraad Henry van der Westhuizen affirmed 23 January 2019, an outline of written submission from the Applicant dated 10 January 2019 (Applicant’s Submissions) and an outline of written submissions from the Minister dated 23 January 2019 (Minister’s Submissions). The Court has also reviewed the transcript of the hearing before this Court.
Background
3.
The Applicant’s son (Son) is a citizen of Sri Lanka. On 17 October 2011, the Son applied for an Other Family (Class BO) Remaining Relative (Subclass 115) Visa (Visa)[1]. The Son applied for the Visa while still in Colombo, Sri Lanka. He was sponsored by the Applicant[2].
4.
On 11 May 2012, a delegate of the Minister (Delegate) refused to grant the Son the Visa (Delegate’s Decision)[3]. Notification of the Delegate’s Decision was sent on 13 June 2012[4]. The Delegate found that as the Son’s mother and sister were residing in the Netherlands, the Applicant did not meet cl.115.211 of the Migration Regulations 1994 (Cth) (Regulations).
5.
On 17 July 2012, the Applicant (who was the sponsor) sought review of the Delegate’s Decision in the then Migration Review Tribunal (Tribunal)[5].
6.
On 3 February 2014, the Son provided an affidavit and his uncle also provided an affidavit to the Tribunal[6]. The Applicant and his Son (by telephone in Sri Lanka) attended a hearing before the Tribunal on 17 February 2014[7].
7.
On 28 February 2014, the Tribunal affirmed the Delegate’s Decision not to grant the Son the Visa (Tribunal’s Decision)[8]. The Tribunal found that reg.1.15(1)(c) of the Regulations was not met[9]. Accordingly, the Son did not meet cl.115.211 of the Regulations and he could not be granted the Visa. However, the Tribunal added as follows to its decision[10]:
MINISTERIAL INTERVENTION
18. The Tribunal discussed and gave consideration to a request for a recommendation for Ministerial Intervention. The Tribunal considers it appropriate that this case be referred to the Minister for consideration of his powers under s.351 of the Act to exercise his discretion and make a decision more favourable to the visa applicant. The Tribunal has considered the review applicant, his wife and teenage son are permanent residents of Australia. The Tribunal notes the review applicant and his wife have purchased a home and both have employment. The circumstances that are unique or exceptional in this case include that the review applicant included the visa applicant in his original applicant to migrate to Australia as a family unit and was requested to remove the visa applicant from the application due to his age and the fact he had employment. The review applicant has continued to financially support and annually visit the visa applicant, and tried other avenues for his older son to join the family in Australia. The Tribunal has noted the medical report about the review applicant’s medical condition which is apparently attributable to the anguish from being separated from his son.
19. The Tribunal considers there are strongly compassionate circumstances that may result in irreparable harm and continuing harm to a family unit. The Tribunal considers in circumstances where the son has had no contact with a parent since he was aged nine and where that parent who is not usually resident in Australia also does not live in the visa applicant’s home country, was not an intended consequence of the legislation and regulation requirements for remaining relative visas. The Tribunal further considers there are compassionate circumstances regarding the age and psychological state and health of the review applicant who is the father of the visa applicant.
8.
On the same date as the Tribunal’s Decision (28 February 2014), the Tribunal referred the Son’s matter to the Ministerial Intervention Unit[11]. On 3 March 2014, the Ministerial Intervention Unit advised the Applicant and the Son that it had received the referral from the Tribunal and would treat this as a request for Ministerial Intervention under s.351 of the Act (First Request)[12].
9.
On 19 March 2014, the Ministerial Intervention Unit received submissions and supporting information in relation to the First Request[13]. Other submissions and information was provided by the Applicant to the Ministerial Intervention Unit on 28 March 2014, 7 July 2014 and 18 April 2016[14].
10.
On 8 July 2016, (in correspondence sent to the Applicant) the Son was advised that the Minister’s department (Department) had assessed that the First Request did not present the types of circumstances that may be referred to the Minister for intervention under s.351 of the Act (First Refusal)[15]. This Request was finalised without referral to the Minister.
11.
On 16 June 2017, the Applicant emailed the Department and outlined his circumstances and his wish to have his Son in Australia. The email asked the Minister to “reconsider” (Second Request)[16].
12.
On 20 June 2017, the Minister’s Department advised the Applicant and the Son that the Second Request had been finalised without a referral to the Minister (Second Refusal)[17].
The “decision” under review
13.
The Amended Application seeks review of the “decision” of the Assistant Director of the Ministerial Intervention Unit made on “8 July 2017”. There are no materials before the Court which reference 8 July 2017.
14.
At hearing, the Applicant’s lawyer indicated the “relevant decision” was on Court Book pages 144 and 145. Those pages contain the First Refusal which is headed as a notification of the “outcome” of the Request and is dated 8 July 2016. The Applicant’s lawyer was incorrect in asserting that First Refusal was made in 2017. The First Refusal clearly on the materials before the Court was made in 2016.
15.
The First Refusal reads[18]:
[…]
This request has been assessed against the Minister’s guidelines on ministerial powers (s351, s417, s501J). The guidelines indicate that cases that have one or more unique or exceptional circumstances may be referred to the Minister and provide examples of the types of circumstances that may be referred.
The department has assessed that this request does not present the types of circumstances that may be referred to the Minister.
Where a request is assessed as not for referral, the Minister’s guidelines set out the circumstances in which he does not want a request to be referred to him. The guidelines provide that such requests are to be finalised by the department without referral to the Minister.
This department has assessed that this request does not meet the Minister’s guidelines. This request has therefore been finalised by the department without referral.
16.
While not indicated in the Amended Application, the Applicant’s lawyer stated that the relevant decision was also at Court Book 151 which was the Second Refusal.
17.
The Second Refusal reads[19]:
The Minister’s guidelines describe a repeat request as a request in relation to which the Minister or another Minister (current or previous) has previously received a request to intervene in the person’s case under any of the powers covered in the guidelines. A request is a repeat request even if the earlier request or requests related to a different visa application.
The Minister’s guidelines indicate that the Minister does not wish to consider repeat requests unless the Department is satisfied that there is a significant change in circumstances which were not provided before or considered in a previous request and which present unique or exceptional circumstances as described in the guidelines.
The Department has assessed that this request does not meet the guidelines for referral to the Minister.
The Department has, therefore, finalised this request without referral.
18.
The Court has proceeded on the basis that the Applicant seeks review of both decisions.
Judicial Review Application
19.
The Applicant filed a judicial review application in this Court on 10 July 2017. In that application, the Applicant first sought review of the Tribunal’s Decision. In doing so, he requested an extension of time. The Applicant also sought review of the “decision” dated 20 June 2017 by a person from the Ministerial Intervention Unit to not refer the Son to the Minister for intervention. The grounds of the review were directed to the decision dated 20 June 2017.
20.
On 19 December 2018, the Applicant filed the Amended Application. In the Amended Application, the Applicant sought review of the “decision” of the Department dated “8 July 2017”. The Amended Application did not seek an extension of time. The grounds of the Amended Application were as follows (without particulars):
1. The decision of the First Respondent’s delegate, Penelle Stern (‘the Delegate’), to not refer the matter to the Minister was a decision within the Federal Circuit Court’s jurisdiction.
2. The decision of the First Respondent’s delegate to not refer the matter to the Minister was ultra vires.
3. Alternatively to ground 2, the decision of the First Respondent’s delegate to not refer the matter to the Minister was ‘legally unreasonable’ following the authority of the High Court of Australia in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 and subsequently the Full Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437.
21.
The Applicant’s Submissions stated as follows:
Moreover, with reference to the compassionate and compelling circumstances in this case, and the legitimate expectation of the applicant, the applicant challenges the DHA’s decision on three grounds. First, that the Minister has not exercised his powers at a personal capacity. Second, that the decision of the Respondent’s delegate was ultra vires, and finally, based on grounds 1 and 2, that this decision was not reasonable.[20]
22.
As can be noted, Ground 1 is omitted in this passage and another ground added. For ease of reference the Court will refer to Ground 1 of the Amended Application as the “Jurisdiction Issue” and will refer to the other grounds as articulated in the Applicant’s Submissions. It is also noted that the Applicant refers to s.417 of the Act throughout his submissions. The relevant provision is s.351 of the Act. Section 417 pertains to protection visas and matters arising under pt.7 of the Act.
23.
The Minister submits that this Court does not have jurisdiction as the First Refusal and the Second Refusal are not “migration decisions”, the Applicant has not sought an extension of time and there is no merit in any of the grounds in any event.
24.
As an additional note, the Amended Application no longer raises any issue with the Tribunal’s Decision. It is therefore unnecessary for the Tribunal to be a named party in this proceeding. No application was made for the Tribunal to be removed pursuant to r.11.04 of the Federal Circuit Court Rules 2001 (Cth).
Consideration
Jurisdiction Issue
25.
The Applicant submits that the First Refusal and the Second Refusal are non-privative clause decisions. It is submitted that where the Department acts outside the “Minister’s guidelines on ministerial powers (s.351, s.417, s.501J)” (Guidelines), which govern whether a request is to be referred to the Minister, then this is a decision made by the Department (not the Minister) and is within the Court’s jurisdiction.
26.
The Minister submits that the Court has no jurisdiction to hear this matter as a determination by the Department not to refer a case to the Minister for consideration under s.351 is not a “migration decision”. The jurisdiction of this Court is limited to review of migration decisions.
27.
This Court has the same jurisdiction as the High Court in relation to a “migration decision” save for some exceptions[21]. The Act defines “Migration decisions” as[22]:
“migration decision” means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non-privative clause decision; or
(d) an AAT Act migration decision.
28.
A “non-privative clause decision” is defined in s.474(6) of the Act. The Applicant did not make any submissions about how the refusal decisions fell into this definition. The Applicant did refer to AOA16 v Minister for Immigration & Border Protection [2017] FCA 697 (AOA16) as a basis for the Court finding that it had jurisdiction.
29.
The Minister also referred to AOA16. In AOA16, the Federal Court (Pagone J), considered whether a Judge of this Court was correct to find that the Court did not have jurisdiction in circumstances where the Department had not referred to the Minister a request for intervention under s.48B of the Act as the request did not meet the Guidelines. His Honour found as follows[23]:
The majority in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 had described directions given by the Minister as the Minister having “determined in advance” the circumstances in which the Minister wished to be put in a position to consider the exercise of discretionary powers. At [91] the majority said:
The terms of the guidelines provide criteria to distinguish between requests which will not be referred to the Minister and those which may be referred to the Minister for consideration whether to exercise the relevant power. By these directions the Minister has determined in advance the circumstances in which he or she wishes to be put in a position to consider exercise of the discretionary powers by the advice of department officers. It was within the competence of the Minister to do so. The effect, as the Commonwealth Solicitor-General put it in oral argument, is that the adoption of the guidelines by the Minister represents decisions by the Minister that if a case is assessed as not meeting the guidelines, the Minister does not wish to consider the exercise of the dispensing power, and if a case is assessed favourably then the Minister does wish to consider that exercise.
(Footnote omitted.)
Whether or not the Minister has made a decision to consider or to exercise a discretionary power is a question of fact. The High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 363 considered the decision in Plaintiff S10/2011 and said at [47]-[57]:
[47] Members of the Court, with the possible exception only of Heydon J, interpreted the guidelines as directed to when the Department was to refer cases to the Minister in order to allow the Minister to decide whether or not to consider exercising a non-compellable power: where the Department had not referred a case to the Minister, no statutory power had been engaged; where the Department had referred a case to the Minister and the Minister had indicated that he would “not intervene”, the Minister had made a personal decision that he would not consider exercising any of the non‑compellable powers.
[48] The unanimous conclusion of the Court was that in none of the cases was the process undertaken by the Department or the decision of the Minister conditioned by any requirement to afford procedural fairness.
[49] Gummow, Hayne, Crennan and Bell JJ, having listed supporting statutory indicia, stated that conclusion in terms that “[u]pon their proper construction and in their application to the present cases”, the provisions conferring the relevant non-compellable powers were “not conditioned on observance of the principles of procedural fairness” for the reason that the Act revealed a “necessary intendment” that “the provisions are not attended by a requirement for the observance of procedural fairness”.
[50] French CJ and Kiefel J said:
With no statutory duty to consider the exercise of the Minister’s powers being enlivened by a request or by the occurrence of a case to which the power might apply, no question of procedural fairness arises when the Minister declines to embark upon such a consideration. If, on ministerial instructions, certain classes of request or case are not even to be submitted to him or her for consideration, the position in law is unchanged. There is no exercise of a statutory power under the Act conditioned upon compliance with the requirements of procedural fairness.
[51] Heydon J said:
The structure of the Act suggests that the powers which the empowering provisions confer on the Minister need not be exercised in compliance with the rules of procedural fairness. It would be strange if the activities of officials of the Minister’s Department preparatory to the Minister either deciding whether to consider exercising those powers or deciding to exercise them would have to comply with the rules of procedural fairness.
[52] Three principles are to be drawn from Plaintiff M61/2010E and Plaintiff S10/2011 concerning the construction and relevant application of ss 48B, 195A and 417 of the Act.
[53] First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.
[54] Second, processes undertaken by the Department to assist in the Minister’s consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister’s consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister’s instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.
[55] Third, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact.
[56] Here, on the unchallenged finding of the Full Court, the Minister has made a personal procedural decision to consider whether to grant a visa under s 195A and s 417 of the Act or to lift the bar under s 48B in the case of each applicant for a protection visa affected by the Data Breach. The ITOA processes have been undertaken by officers of the Department to assist the Minister in that consideration. An ITOA is accordingly properly characterised as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417 of the Act.
[57] That characterisation of an ITOA, as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417, informs the resolution of the issue whether procedural fairness was required in the process. The same characterisation also informs the resolution of the issue whether the Federal Circuit Court had jurisdiction.
(Footnotes omitted.)
It follows from these passages that the Minister’s statutory power under s 48B had not been engaged where the department had not referred a case to the Minister. The inclusion of the detailed minute concerning s 48B in the materials referred to the Minister was expressly stated not to be a referral to the Minister for his consideration of the s 48B request. Whatever the author of the minute may have intended by the use of the word “holistic” … as “parts of something [being] intimately interconnected and explicable only by reference to the whole” (philosophy)), and whatever the reader of the minute may have understood by the word “holistic” as used in the minute, the author made clear that the s 48B material was not being sent to the Minister for the Minister’s consideration under s 48B, and the Minister did not consider the request under s 48B. The only decision of the Minister concerning s 48B which he may have made was a decision not to consider the exercise of a non-compellable power of a kind mentioned in Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510 at [62]-[64] (referred to by the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 363 at [72]) which was not a decision made under the Act. Such a decision may be reviewable, as the Minister submitted, in the original jurisdiction of the High Court but not by the Federal Circuit Court by reason of s 474(7) of the Act.
30.
In CLA15 v Minister for Home Affairs [2019] FCA 262 (CLA15), Chief Justice Allsop considered an appeal from a Judge of this Court who had determined that there was no jurisdiction to review the decision of the Minister’s Department not to refer a matter to the Minister. His Honour stated[24]:
9. The short question before me is whether there is any basis to conclude that the course indicated by the Department in its letter was a decision which, under the statute, the Federal Circuit Court was entitled to review for relevant error, and whether in relation to it there was conditioned an obligation to afford procedural fairness by hearing the applicant before refusing to pass the application on to the Minister.
10. The matter is substantially covered by the joint judgment of the members of the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180. It is unnecessary to set out at length what their Honours said in that case beyond indicating that there was some clarification of what had fallen from the Court in the earlier cases of Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 and Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636, about the proper characterisation of the processes undertaken by the Department. The two points which I have identified are related. The first is, as is submitted by the Minister, that there was no decision under the Act, and it follows that there was no “privative clause decision” as defined in s 474 of the Act. Secondly, that there was no decision under the Act upon which there could be conditioned an obligation to afford procedural fairness.
11. The letter itself, on its face, indicates that there has been no attention to any procedural or other decision by the Minister, but rather, members of his Department have attended to an incoming letter from the applicant and dealt with it by reference to pre-existing guidelines within the Department. In the decision of the Court in SZSSJ, after a discussion of the various judgments of the Court in earlier decisions, the Court turned to questions of jurisdiction and natural justice. The Court was clear that s 48B, amongst other provisions of the Act, confers a non-compellable power that may be exercised by the Minister personally to make two distinct decisions; a procedural decision to consider whether to make a substantive decision, and a substantive decision to grant a visa or lift the bar.
12. In SZSSJ at [53], the High Court stated that “(t)he Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.” In [54], the Court then turned to the processes that may be undertaken by the Department to assist the Minister’s consideration of the possible exercise of a non-compellable power. The Court indicated that:
“(i)f the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister’s consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister’s instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.”
12. In [55], the Court indicated that “whether the Minister personally has made a procedural decision to consider whether to grant a visa or lift a bar in a particular case or class of cases is a question of fact.”
13. Here, the primary judge was of the view, or could, on the material before him, be of the view that there was no personal procedural decision of the Minister to consider whether or not to make a substantive decision. On the material before him, the matter, unless there was any further material, was to the effect that there was a process undertaken by the Department to assist the Minister to make the procedural decision, and this had no statutory basis and did not attract a requirement to afford procedural fairness.
14. This is substantially the approach that has been taken in other cases such as AOA16 v Minister for Immigration and Border Protection [2017] FCA 697 by Pagone J. On this basis, there was no privative clause decision, and nor was there a decision to attract a requirement to afford procedural fairness. In these circumstances, on the material before the primary judge, I do not perceive that there is any reasonable prospects of success of the appeal, and for that reason, I would refuse the application to extend time in which to file and serve an application for leave to appeal or to appeal.
31.
The facts of this matter are analogous to those in CLA15. While CLA15 concerned the Minister exercising the power in s.48A and here the Court is concerned with s.351, the same approach applied. Both are non-compellable powers.
32.
It is apparent on the materials before the Court that the Minister did not personally consider whether to exercise s.351. The Applicant appears to concede such in pressing Ground 1 that the Minister erred in not so personally considering. It is also apparent on the face of the materials that the Minister has not made a “personal procedural decision” to consider whether to make a substantive decision. The First Refusal and the Second Refusal and the two Departmental minutes that relate to those refusals both indicate a process undertaken by the Department to assist the Minister to make a procedural decision. Having been finalised before referral to the Minister, there was no personal procedural or substantive decision made in relation to the requests.
33.
As stated in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180; (2016) 333 ALR 363 (SZSSJ) at [54], in determining or “assessing” whether a case should be referred to the Minister under s.351, the Department is exercising a “non-statutory executive power”. In line with both CLA15 and AOA16, this Court does not have jurisdiction under the Act to review the decision.
34.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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