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: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554
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
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…
Continue reading DCM20 v Secretary, Department of Home Affairs
Sign in free to access the full text
- AGLC
- DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022
- Case
- [2020] FCA 1022
- Decision Date
CaseChat Overview and Summary
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
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.