Dalpatadu v Minister for Immigration

The applicant, Udaya Kosmapatabendige Dalpatadu, sought judicial review of a decision made by an officer of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to refer his son's visa refusal for Ministerial Intervention under section 351 of the *Migration Act 1958* (Cth). The applicant's son had applied for a visa in 2011, which was refused in 2012, and this refusal was affirmed by the Migration Review Tribunal in 2014. The Tribunal had recommended that the matter be referred for Ministerial Intervention due to compassionate circumstances. Despite this recommendation, the Department assessed that the case did not meet the guidelines for referral, and this decision was communicated to the applicant on 8 July 2016. A subsequent request in 2017 was also finalised without referral. The matter was heard in the Federal Circuit Court of Australia.

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.