Dalpatadu v Minister for Immigration
[2020] FCCA 1599
•18 June 2020
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 |
| Cases cited: Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791 Ell Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43 |
| 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
Introduction
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).
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
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].
[1] Court Book (CB) 1-21.
[2] CB 22-29.
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).
[3] CB 56-58.
[4] CB 53-58.
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].
[5] CB 59-69.
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].
[6] CB 101-103.
[7] CB 104-107.
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]:
[8] CB 109-113.
[9] CB 111, at [15].
[10] CB 112, at [18]-[19].
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.
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 (FirstRequest)[12].
[11] CB 117-118.
[12] CB 130-131.
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].
[13] CB 132-137.
[14] CB 138-142.
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.
[15] CB 145-146.
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].
[16] CB 147-148.
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].
[17] CB 151-152.
The “decision” under review
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.
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.
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.
[18] CB 145.
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.
The Second Refusal reads[19]:
[19] CB 151-152.
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.
The Court has proceeded on the basis that the Applicant seeks review of both decisions.
Judicial Review Application
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.
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.
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]
[20] Applicant’s Submissions, p.3.
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.
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.
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
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.
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.
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]:
[21] See, s.476 of the Act.
[22] Section 5 of the Act.
“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.
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.
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.)
[23] AOB16 v Minister for Immigration & Border Protection [2017] FCA 697, at [11].
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.
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]:
[24] CLA15 v Minister for Home Affairs [2019] FCA 262 at [9]-[14].
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.
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.
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.
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.
It is noted that, following the hearing of this matter the Federal Court has considered whether the Department’s non-referral to the Minister of a request to intervene is amenable to judicial review[25]. The Federal Court has held that such can be reviewed, though on limited bases. It appears that the jurisdiction invoked in those matters was under s.39B of the Judiciary Act 1903 (Cth). In the absence of submissions on this point the Court need not address it.
[25] Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791.
On that basis, the application is dismissed.
In the event the Court is wrong and the refusals are “migration decisions” and are within the jurisdiction of the Court to consider, at least in relation to the First Refusal, the Court can dismiss this on the basis that the Applicant has not requested an extension of time. The Applicant’s lawyer submitted that an extension was not necessary for the First Refusal. That is plainly incorrect. The First Refusal was made on 20 June 2016. The Application was filed on 10 July 2017. Clearly, this is outside the 35 day time limit prescribed in s.477(1) of the Act.
Section 477(2) of the Act states:
The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The Applicant has not made any application for an order in in writing nor indicated why it is in the interests of the administration of justice for the order to be made. In the absence of any application for the order to extend time, the Court has no jurisdiction[26].
[26]Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 47, at [12]-[15] (Judge Lucev).
Accordingly, on the basis which the matter was argued before this Court, the Court has no jurisdiction to review the Amended Application.
Amended Application
Notwithstanding the Court’s findings above, for the reasons that follow the Court does not consider that there is any arguable case of jurisdictional error in the First Refusal nor any jurisdictional error in the Second Refusal.
Ground 1
Ground 1 appears to take issue with the Minister not having exercised his powers in a personal capacity. The Applicant’s submissions are, with respect, confusing and difficult to understand.
The Applicant appears to argue that the Minister had not personally exercised his powers in this case and that the particular circumstances of this case warranted the Minister personally exercising his powers. This submission simply invites impermissible merits review.
To the extent that the Applicant argues that the Minister has impermissibly delegated his power, the Court does not accept this to be the case. For the reasons outlined above in relation to the Jurisdiction Issue, the Minister did not exercise his power at all. This is supported by the following extract from the High Court relied on by the Minister[27]:
The first ground is that the Minister cannot delegate the exercise of his powers under sections 417 and 48B of the Act. It is true that both the Minister’s power to substitute for a decision of the Tribunal a decision that is more favourable to an applicant and the Minister’s power to determine that the restriction in section 48A of the Act does not apply to an applicant can only be exercised personally. But neither power has been exercised, or has been purported to be exercised, in relation to the plaintiff. Indeed, the Minister’s statutory powers have not been engaged at all. All that has happened here is that an officer of the Department has decided not to refer the two requests from the plaintiff to the Minister. If the plaintiff, by this ground of the application, seeks to argue that the Minister must personally consider every request for intervention under either of those sections, such an argument is unavailable in light of prior decisions of the Full Court of this Court.
[27]Plaintiff S28/2018 v Minister for Home Affairs [2018] HCATrans 168.
To the extent that the Applicant is suggesting that the Minister impermissibly delegated his power by virtue of creating the Guidelines, this cannot be accepted. Both SZSSJ and Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2016) 246 CLR 636 (Plaintiff S10/2011) approved the use of the Guidelines.
The Applicant also submits that the Guidelines (which he refers to as being part of the Procedures Advice Manual (PAM3)) impose a duty on the Department to refer cases which meet the Guidelines and, on the authority of Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 (Tesic), submits that the Department is bound by the Guidelines. The Applicant submits that the Department did not follow the Guidelines and was bound to do so. Having not done so, it appears to be submitted that the Department has offended Tesic. Unfortunately, the Applicant advanced no specific argument outlining how the Department did not follow the Guidelines other than to say that the case should have been referred to the Minister.
During the course of the hearing, the Applicant’s Lawyer indicated that they believed the “medical history” of the Applicant was not considered and the Guidelines state that this should be considered. This fails on its facts. The Departmental minutes both identify the “medical” issues of the Applicant. In the minute concerning the First Refusal, reference is made to the Applicant’s medical issues and specific reference is made to “medical letters from doctors provided”[28]. In relation to the Second Refusal, reference is again made to the Applicant’s medical issues[29]. This indicates these matters were considered.
[28] Affidavit of Coenraad Henry van der Westhuizen affirmed 23 January 2019, Annexure CHW-1.
[29] Ibid, Annexure CHW-2.
The Applicant’s reliance on Tesic is, as the Minister submits, misconceived. First, Tesic involved a Ministerial direction issued under s.499 of the Act. There is no evidence that the Guidelines are the subject of a Ministerial direction. Second, on the Applicant’s submissions, the Guidelines form part of PAM3. PAM3 is not a binding document and is intended to act as no more than guidance to the Department[30]. Third, again, the Applicant did not point to anything to demonstrate that the Guidelines were not followed other than referring to the “strong compassionate circumstances”.
[30] Ell Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43, at [45].
Finally, the Applicant also made reference to having a “legitimate expectation” that the requests would be undertaken in accordance with the Guidelines and that the Minister would personally look into his case. The notion of a “legitimate expectation” is often linked to procedural fairness. In Plaintiff S10/2011[31], it was made clear that no obligations of procedural fairness attach to considerations of this sort.
[31] Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2016) 246 CLR 636, at [3]-[4]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180; (2016) 333 ALR 363, at [77].
The Applicant’s references to BEG17 & Ors v Minister for Immigration & Anor [2018] FCCA 216 and WZAWB v Minister for Immigration & Border Protection (2016) 309 FLR 398 are unclear. To the extent they refer to the delay in the Department’s assessment on the first occasion and the Applicant having a “legitimate expectation” that the request would be determined in a short time, as noted immediately above, this cannot form a basis of error.
To the extent the Applicant draws attention to these matters in relation to the delay in commencing the judicial review application in this Court (which the Applicant indicated he did not require), a request for Ministerial intervention is not itself a sufficient explanation for a delay[32]. In any event, nothing turns on this as the Applicant has (incorrectly) indicated he does not require an extension of time and the Court is not satisfied there is sufficient merit in the grounds, even if it was considering such a request.
[32] VU v Minister for Immigration & Citizenship [2008] FCAFC 59; (2008) 101 ALD 211, at [32].
The submissions do not distinguish between the First Refusal or the Second Refusal and appear to submit that, generally, on both occasions there has been an error in the Minister not personally considering the requests or the Guidelines have not been applied properly.
There was no obligation on the Minister to personally consider the requests, there was no impermissible delegation of powers (or a delegation of power at all) and the Applicant is simply disagreeing with the assessment that the Department would not refer the requests.
Ground 1 fails.
Ground 2
In Ground 2, the Applicant submits:
As in ground 1, we submit that the decision of the First Respondent’s delegate to not refer the matter to the Minister was ultra vires. This is on the basis that there are unique and exceptional circumstances in this case, and thus requires the Minister’s attention at his personal capacity.
This is plainly an expression of disagreement with the First Refusal and the Second Refusal. Just because the Applicant believes the circumstances are unique and exceptional does not mean that in the Department not so finding they acted ultra vires.
The Applicant also made submissions relating to the Delegate’s Decision. In oral submissions, the Applicant’s Lawyer submitted that the “very basic issue” in this case was that the Delegate’s Decision was ultra vires because the Delegate considered outdated law.
The fact is, the Court does not have jurisdiction in relation to the Delegate’s Decision[33]. The Applicant cannot indirectly seek review of the Delegate’s Decision through his application for review of the First Refusal and the Second Refusal.
[33]Section 476 of the Act.
Further, the incorrect legislation was not applied by the Delegate, nor the Tribunal. The Applicant’s submissions to the Ministerial Intervention Unit contained the incorrect legislative criterion as did his submissions to this Court. As the Minister pointed out, schedule 7, item 1 of the Migration Amendment Regulations 2005 (No. 8) (Cth) (Amendment Regulations) amended reg.1.15 to the form that was applied by the Delegate and the Tribunal. Section 9 of the Amendment Regulations indicated that the new definition would be in force for any visa application made on or after 1 November 2005. Clearly, the Son applied after this date.
The Applicant’s argument is misconceived and without merit. The Applicant otherwise seeks to disagree with the First Refusal and Second Refusal as opposed to advancing any substantive argument as to why they were ultra vires.
Ground 2 is dismissed.
Ground 3
The Applicant argues in this ground that the decision was legally unreasonable. If the Court had jurisdiction (which it has found it does not), it appears that it would be open to the Applicant to argue that the First Refusal and the Second Refusal were unreasonable notwithstanding there has been no exercise of any statutory power[34].
[34] Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791.
The Applicant submitted that the First Refusal and the Second Refusal were ‘legally unreasonable’ on the basis that there were unique and exceptional circumstances in the case that required the Minister’s personal intervention.
This submission rises no higher than expressing a difference of opinion with the individuals who made the First Refusal and the Second Refusal. It is well accepted that reasonable minds may differ and the Applicant’s submissions do not touch upon how no reasonable decision-maker could have made the First Refusal and the Second Refusal[35]. The submissions also do not identify how the decision has no evident and intelligible justification[36]. They simply assert that it lacks any.
[35] Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2011) 240 CLR 611; (2011) 84 ALJR 369; (2011) 266 ALR 367; (2011) 115 ALD 248, at [131].
[36] Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50.
The Applicant brought attention to the following parts of the Guidelines which state when a matter should be brought to the Minister’s attention[37]:
[…] strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
[…]
circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in your case
[37] The Guidelines were not tendered into evidence by any party. As such, the Court has relied on the guidelines as referenced in the Applicant’s Submissions, p.10.
The Applicant also submits that there are no written reasons for the First Refusal and the Second Refusal and, therefore, in light of the “serious, ongoing and irreversible harm and continuing hardship” to the Applicant, the decision lacks an evident and intelligible justification. There is no obligation for the Department to produce reasons.
What will assist the Court in determining whether no decision-maker could reasonably have come to the relevant conclusion, are the Departmental minutes produced in relation to the First Refusal and the Second Refusal.
In relation to the First Refusal, the Departmental minute specifically addressed the circumstances presented by the Applicant. In particular it appears that the following matters were the reasons for the First Refusal:
a)The Regulations had operated as intended in this case.
b)The situation that the Applicant and his Son had found themselves in was deliberate and not beyond their control. It was a direct consequence of their migration choices.
c)The Applicant claimed he had suffered significant stress because of the situation and this had caused high blood pressure, gout and the Applicant resigning from his employment.
d)Contrary to the Applicant’s claim that his son had had his career damaged because of this situation, the evidence suggested the Son’s career had advanced.
e)The Son’s current occupation is listed on the Consolidated Sponsored Occupations List.
When the above is considered as a whole (as it should be) it is apparent that the Department’s conclusion was entirely reasonable. The matters referred to by the Department in the minute (Minute)[38] provide an evident and intelligible justification for considering that there were no unique or exceptional circumstances to refer the matter to the Minister.
[38] Affidavit of Coenraad Henry van der Westhuizen affirmed 23 January 2019, Annexure CHW-1.
In relation to matters the Applicant particularly took issue with:
a)Whether the Applicant’s claim that he suffered from high levels of stress and this had caused high blood pressure and gout amounted to “strong compassionate circumstances” was a matter of evaluation and judgment for the Department. It was open to the Department to not consider that this would result in serious, ongoing and irreversible harm and continuing hardship to the Applicant.
b)The Minute also came to the conclusion that the legislation in these circumstances operated as was intended and it is clear that any applicants with near relatives outside of Australia are ineligible. Again, on the plain text of the legislation this was reasonable and, it is noted that the definition of reg.1.15 was actually changed to appear to make persons like the Applicant’s son ineligible. The version of reg.1.15 of the Regulations, which the Applicant relied upon and said was applicable in his case and arguably would have seen him meet the criteria, was repealed and substituted. Hence, it was reasonable for the Department to find that the legislation operated as intended and did not lead to any unfairness or unreasonableness and it cannot be said that no decision-maker could reasonably have come to the relevant conclusion.
c)During the course of the hearing the Applicant’s lawyer referred to the following part of the Minute in relation to the First Refusal[39]:
Further, Mr Dalpatadu’s father, Mr Udaya Kosmapatabendige DALPATADU, chose to proceed with his Regional Skilled Migration Scheme (Subclass 887) visa application in the knowledge that Mr Dalpatadu could not be included due to not meeting the dependency criteria (see Family disposition). Mr Dalpatadu consented to withdrawing from this application in the knowledge that the family unit could be separated.
The Applicant’s Lawyer says that this is erroneous and given the reliance on this Minute, it appears he is suggesting that it was unreasonable. This fails on a factual level (and therefore cannot be unreasonable) as the Applicant himself indicated this in his submissions at Court Book 132.
[39] Affidavit of Coenraad Henry van der Westhuizen affirmed 23 January 2019, Annexure CHW-1, at p.2.
It was open to the Department to make the First Refusal.
As for the Second Refusal, in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791 it was stated that it was clearly open to find a second request a “repeat request” when a previous request had been made and denied. The Second Refusal also expressly indicated that the request repeated the same claims. The Applicant did not argue in this Court that it did not and, in any event, the Court is satisfied that it was open to conclude that the second request did not raise any new matters that were not previously considered. It was entirely open to reach the conclusion in the Second Refusal.
The Applicant has not established that the First Refusal or the Second Refusal were unreasonable or lack any evident or intelligible justification.
Ground 3 fails.
Conclusion
The Court has concluded that it does not have jurisdiction to consider the Amended Application. In any event, none of the grounds of review identify any jurisdictional error which such a decision is open to be challenged upon.
The Amended Application is dismissed.
At the hearing the Minister sought costs in the scale amount. This amounts to $7,467. The Court accepts the Minister’s submission that given the nature of this application (including the jurisdiction issue), the need to file an amended response in relation to the Amended Application and the affidavit in light of the Amended Application, in addition to the general matters that are required in such cases (submissions and appearances) it is entirely appropriate that the Minister have costs in their favour fixed in the sum of $7,467.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 18 June 2020
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