DCM20 v Secretary, Department of Home Affairs

Case [2020] FCA 1022


FEDERAL COURT OF AUSTRALIA

DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022

File number(s): NSD 68 of 2020
Judge(s): PERRY J
Date of judgment: 20 July 2020
Catchwords: MIGRATION – where applicant made repeat request for ministerial intervention under s 351, Migration Act 1958 (Cth) – where Assistant Director, Department, signed minute declining to refer repeat request to the Minister in exercise of non-statutory executive power with short reasons in line with Ministerial guidelines – where applicant submitted Assistant Director’s decision was susceptible to judicial review on grounds of legal unreasonableness applying Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438 – where Minister made formal submission that Jabbour was wrongly decided – consideration of principles regarding drawing of inferences where no statutory obligation to provide reasons – application dismissed
Legislation:

Migration Act 1958 (Cth) ss 48A, 48B, 351, 476A

Judiciary Act 1903 (Cth) s 39B

Cases cited:

Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457

Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554

CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791

Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438

Minister for Foreign Affairs v Lee [2014] FCA 927; (2014) 227 FCR 279

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

Minister for Immigration and Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Minister of Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173

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

XA v Minister for Home Affairs [2019] FCAFC 166

Date of hearing: 7 July 2020
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 63
Solicitor for the Applicant: Mr R T Selliah of Rasan T. Selliah & Associates
Counsel for the First Respondent: Mr N Wood
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: Second Respondent filed a submitting notice
Table of Corrections
15 February 2021 In the second line of paragraph [1], the words “under s 235(1)” have been changed to “under s 351(1)”.
15 February 2021 In the first line of paragraph [3], the second line of paragraph [45] and the thirteenth line of paragraph [62], the words “Assistant Minister’s” have been changed to “Assistant Director’s”.
15 February 2021 In the third line of paragraph [3] and the third line of paragraph [28], the word “Minister” has been changed to “Secretary”.

ORDERS

NSD 68…

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AGLC
DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022
Case
[2020] FCA 1022
Decision Date

CaseChat Overview and Summary

DCM20 sought judicial review of a decision by the Department of Home Affairs, which declined to refer their repeated request for ministerial intervention under section 351 of the Migration Act 1958 (Cth) to the Minister. The decision was made by an Assistant Director, who exercised a non-statutory executive power, providing brief reasons in accordance with Ministerial guidelines. The applicant argued that the Assistant Director's decision was legally unreasonable and thus subject to judicial review, relying on the principles established in Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438. The Minister intervened, asserting that Jabbour was wrongly decided. The court had to determine the validity of the Assistant Director's decision, the principles governing the drawing of inferences when no statutory obligation to provide reasons exists, and the correctness of the Minister's assertion regarding the Jabbour decision.

The court considered the principles for judicial review when a decision-maker is not statutorily required to provide reasons, particularly in the context of ministerial intervention requests. It assessed whether the Assistant Director's decision was legally unreasonable, given the lack of statutory obligation to provide reasons. The court acknowledged the Minister's submission that Jabbour was wrongly decided, but it ultimately concluded that the Assistant Director's decision was not legally unreasonable. The court found that the Assistant Director's brief reasons, while not comprehensive, were sufficient in light of the Ministerial guidelines and the nature of the request.

Based on its analysis, the court dismissed the application for judicial review. The Assistant Director's decision to decline referral of the repeated request for ministerial intervention was not legally unreasonable. The court also found that Jabbour did not apply as a binding precedent, given the Minister's submission that it was wrongly decided. Consequently, the applicant's argument failed, and the application was dismissed. The court ordered that the applicant pay the Department's costs as agreed or assessed, in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for judicial review is dismissed.

2. The applicant is to pay the first respondent’s costs as agreed or assessed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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