DQT22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 704
•8 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQT22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 704
File number: PEG 219 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 8 August 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – where the Tribunal declined to refer the matter to the Minister for consideration of the Minister’s intervention powers in s 417 of the Migration Act 1958 (Cth) – where the only ground of application relates to the Tribunal’s refusal to refer the matter for Ministerial intervention – whether the Tribunal’s refusal to refer the matter for Ministerial intervention can establish jurisdictional error in the Tribunal decision. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 18B
Migration Act 1958 (Cth) ss 36, 65, 315, 349, 351, 411, 414, 415, 417, 423, 425, 430, 476, 477, 501J
Migration Regulations 1994 (Cth) reg 2.12
Cases cited: AFG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1361
Akula v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2661
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 179 ALD 1; [2023] HCA
Fernandez v Minister for Immigration and Border Protection (2015) 238 FCR 251; [2015] FCA 1265
Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438; [2019] FCA 452
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609; [2000] HCA 1
Searle v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 94
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of hearing: 11 September 2023 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr B Zipser (Direct brief) Counsel for the First Respondent: Mr B Kaplan Second Respondent: Submitting appearance by the second respondent, save as to costs. Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 219 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQT22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
8 AUGUST 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs, fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Vietnam who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and on 17 October 2022 the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. In its reasons for decision, the Tribunal considered the applicant’s request for the Tribunal to refer his matter to the Minister’s Department for consideration of the exercise of the Minister’s discretion in s 417 of the Migration Act 1958 (Cth) (Migration Act), which allows the Minister to substitute for a decision made by the Tribunal another decision that is more favourable to the applicant, if the Minister thinks it is in the public interest to do so. The Tribunal decided not to refer the applicant’s matter for Ministerial intervention.
The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act. The applicant relies on an amended application filed on 23 August 2023 which raises a single ground. That ground does not directly assert any jurisdictional error in the Tribunal decision insofar as the Tribunal affirmed the decision not to grant the applicant a protection visa. Rather, the ground asserts jurisdictional error in relation to the Tribunal’s reasons for not referring the applicant’s matter for Ministerial intervention. In particular, the applicant submitted that the guidelines relied on by the Tribunal in making the decision were unlawful and that in any event, the Tribunal misconstrued or misapplied certain sections of the guidelines.
In response to this ground, the Minister submitted that anything that the Tribunal said in relation to Ministerial intervention was not relevant to the discharge of its functions under Part 7 of the Migration Act to conduct a ‘review’ of the of the delegate’s decision, which was limited to a review of the delegate’s decision not to grant the applicant a protection visa.
For the reasons explained below, I have found that the applicant has not established jurisdictional error in the Tribunal decision and I therefore dismiss the judicial review application.
VISA APPLICATION AND REVIEW APPLICATION
The applicant applied for a Protection (Class XA) visa on 3 August 2021 and the application was refused by a delegate of the Minister on 12 November 2021.
On 26 November 2021 the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant’s review application was accompanied by a written submission by the applicant’s representative dated 26 November 2021 which contained the following request for the Tribunal to refer the case to the Minister’s Department for the Minister’s consideration under s 417 of the Migration Act:
The Review Applicant also makes this review application in order to seek the Tribunal’s assistance in making a referral to the Hon Minister to consider exercising her personal intervention powers for favourable exercise of discretion, should the review application fail.
On 1 August 2022 the applicant provided to the Tribunal statements made by him and his wife. Some parts of these statements were relevant to the applicant’s request for Ministerial intervention.
On 4 August 2022 the applicant’s representative sent an email to the Tribunal in which, amongst other things, he said:
Furthermore even if the Tribunal should see fit to affirm the primary decision then nonetheless a referral ought to be made to the Hon Minister for favourable exercise of his personal intervention powers including a necessary bar lift and/or sponsorship waiver to allow the lodgement of a partner visa given that the Review Applicant is now in a relationship with an Australian citizen and the couple is wishing to start a family. There also exists significant mental health considerations of both the Review Applicant and his Australian partner which it will be submitted compels referral to the Hon Minister for a favourable consideration of the Minister’s intervention powers.
The applicant attended a hearing before the Tribunal on 5 August 2022.
On 31 August 2022 the applicant, via his representative, provided a 4-page submission to the Tribunal addressing why the applicant believes the Tribunal should refer his case to the Minister for Ministerial intervention.
On 17 October 2022 the Tribunal affirmed the delegate’s decision and declined to refer the matter to the Minister for Ministerial intervention under s 417 of the Migration Act.
TRIBUNAL DECISION
The Tribunal was not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act. The Tribunal also noted that there was no suggestion that the applicant met the criteria in s 36(2) of the Migration Act on the basis of being a member of the same family unit as a person satisfies the criteria in ss 36(2)(a) or 36(2)(aa) and who holds a protection visa. The Tribunal therefore found that the applicant did not meet the criteria for a protection visa and affirmed the delegate’s decision. Given that the ground of judicial review does not relate to these findings, it is unnecessary to set out the Tribunal’s reasons for those findings.
The paragraphs of the Tribunal decision that are relevant to the judicial review application are [159]-[163], where the Tribunal addressed the applicant’s request for his matter to be referred to the Department for Ministerial intervention. Those paragraphs read:
159.The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
160.In relation to this request, the Tribunal has read and considered the submissions made on behalf of the applicant arguing that this would be an appropriate matter for the Minister to exercise such discretion.
161.However, the Tribunal has also considered the Minister’s guidelines in relation to such intervention which outlines cases that do not meet the guidelines for referral, and which have the types of circumstances that are inappropriate for the Minister to consider. One of circumstances outlined as being inappropriate is where a person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore.
162.In the applicant’s case he has clearly stated that he has previously had an onshore application for a Partner visa refused and that he is barred from making a further such Partner visa application onshore. Accordingly, the applicant’s circumstances do not appear to meet the guidelines for referral to the Minister.
163.Therefore, the Tribunal has decided not to refer the matter. However, the Tribunal notes that the applicant can make a request directly to the Minister.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 15 November 2022 and was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The sole ground in the amended application filed on 23 August 2023 reads:
The applicant asked the Administrative Appeals Tribunal (“AAT”) to refer the applicant’s case to the Minister for consideration under s 417 of the Migration Act 1958 (Cth). The AAT at [161] stated that it has “considered the Minister’s guidelines in relation to such intervention which outlines cases that do not meet the guidelines for referral and which have types of circumstances that are inappropriate for the Minister to consider” (“Guidelines”). The AAT at [163] concluded that it “has decided not to refer the matter”. The AAT fell into jurisdictional error in making this finding for reasons including the following:
a)The Guidelines were unlawful. Where a decision-maker who makes a decision under a statutory power, in making a material finding, applies a guideline which is unlawful, that part of the decision involving or affected by the material finding is tainted by jurisdictional error.
b)The AAT misapplied or misconstrued the Guidelines. Section 8 of the Guidelines states that “a review tribunal may refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of these guidelines”, upon which “the Department will assess the circumstances of the case”. However, the AAT did not assess the applicant’s request by considering whether the case fell within the unique or exceptional circumstances described in section 4 of the Guidelines. Instead, the AAT at [161] considered whether the case fell within section 7 of the Guidelines which listed types of cases the Minister did not wish to consider and in respect of which the Minister instructed that “the Department will finalise these cases without referral to me”. It follows that the AAT did not comply with the instruction in section 8 of the Guidelines to “refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of these guidelines”. This misapplication of the Guidelines by the AAT was significant. Where a decision-maker misapplies or misconstrues guidelines, this may be a jurisdictional error, and was a jurisdictional error in the present case.
c)The AAT misapplied or misconstrued the Guidelines in an additional way. The AAT at [161] expressly relied on the bullet point in section 7 of the Guidelines which states
“the person’s application for a Partner visa onshore, as prescribed under reg 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore”.
On the proper construction of this bullet point, the partner the subject of:
i.the past onshore partner visa application which “has been refused”; and
ii.the desired further partner visa onshore application in respect of which the applicant “is now barred”,
is the same person. The bullet point does not apply where, as in the present matter, an applicant’s application for a partner visa (sponsored by Partner A) was refused, as a result of which the applicant is barred from applying for a partner visa onshore (sponsored by a different Partner B). Therefore, the AAT’s finding at [162] that “the applicant’s circumstances do not appear to meet the guidelines” was based on an erroneous construction of the Guidelines.
The evidence before the Court comprises:
(a)a copy of guidelines issued by former Minister Dutton on 11 March 2016 in relation to the exercise of the Minister’s powers in ss 351, 417 and 501J of the Migration Act (Ministerial Guidelines) (exhibit 1);
(b)a court book filed on behalf of the Minister on 28 February 2023 (exhibit 2); and
(c)a supplementary court book filed on behalf of the Minister on 5 September 2023 (exhibit 3).
RELEVANT LEGISLATION, GUIDELINES AND DIRECTIONS
Before addressing the parties’ submissions in this matter, it is convenient to set out those parts of the relevant legislation, guidelines and directions that the parties refer to in their submissions and that I consider to be most relevant to the determination of the issues in this proceeding.
Legislation relating to the review conducted by the Tribunal
Part 7 of the Migration Act provides for the review of Part 7-reviewable decisions by the Tribunal in its Migration and Refugee Division.
Section 411 of the Migration Act contains the definition of the Part-7 reviewable decision. The Tribunal decision was a Part 7-reviewable decision by virtue of s 411(1)(c), which provides that a Part 7-reviewable decision includes:
(c)a decision to refuse to grant a protection visa, other than a decision that was made relying on:
(i)subsection 5H(2), or 36(1B) or (1C); or
(iii)paragraph 36(2C)(a) or (b);
Section 414(1) of the Migration Act requires the Tribunal to review a Part 7-reviewable decision where a valid application for review is made.
The Tribunal’s powers on review are set out in s 415 of the Migration Act, which relevantly provides:
(1)The Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2)The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c)if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d)set the decision aside and substitute a new decision; or
(e)if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.
Section 430(1) of the Migration Act requires the Tribunal to provide a written record of its decision. That subsection provides:
Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material question of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
…
(f)records the day and time the statement is made.
The Minister’s discretion in s 417 of the Migration Act
Section 417 of the Migration Act allows the Minister to substitute for a decision of the Tribunal a decision which is more favourable to an applicant. The section relevantly provides:
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal has the power to make that other decision.
(2)In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of the Act.
(3)The power under subsection (1) may only be exercised by the Minister personally.
…
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
The Minister has from time to time issued guidelines in relation to the exercise of the Ministerial intervention powers in ss 351, 417 and 501J of the Migration Act, including the Ministerial Guidelines received into evidence as exhibit 1. The Ministerial Guidelines were considered by the High Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 179 ALD 1; [2023] HCA 10 (Davis).
Under a subheading ‘3. Ministerial intervention principles’, the Ministerial Guidelines relevantly provide:
The following principles apply to the intervention powers covered by these guidelines:
…
•If a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for me to intervene …
Under a heading ‘Cases that should be brought to my attention’ and a subheading ‘4. Unique or exceptional circumstances’, the Ministerial Guidelines relevantly provide:
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
•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 …
Under a heading ‘Cases that should not be brought to my attention’ and a subheading ‘7. Inappropriate to consider’, the Ministerial Guidelines relevantly provide:
Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing:
…
•the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore …
Under a subheading ‘8. Who can make a request?’ the Ministerial Guidelines provide the following information about referrals from the Tribunal:
A review tribunal may refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of these guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet my guidelines for referral, the Department will finalise the case according to these guidelines.
Direction of the Tribunal
Section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) allows the President of the Tribunal to make directions relevant to the conduct of reviews by the Tribunal. The section relevantly provides:
(1)The President may give written directions in relation to any or all of the following:
(a)the operations of the Tribunal;
(b)the procedure of the Tribunal;
(c)the conduct of reviews by the Tribunal;
(d)the arrangement of the business of the Tribunal;
(e)the places at which the Tribunal may sit.
(1A)Before the President does so, the President must consult the head of any Division to which the direction would apply.
(2)A failure by the Tribunal to comply with a direction does not invalidate anything done by the Tribunal.
(3)If the Tribunal deals with a proceeding in a way that complies with the directions given under this section, the Tribunal is not required to take any other action in dealing with the proceeding.
On 1 August 2018 the President of the Tribunal issued a direction under s 18B of the AAT Act titled ‘Conducting Migration and Refugee Reviews’ (AAT Direction). Part 16 of the AAT Direction addresses referrals for ministerial intervention and relevantly provides:
16.1Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The member’s views will be brought to the Minister’s attention by the Department under the guidelines.
16.2The member may refer a case to the Department on the basis that the member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.
16.3The circumstances which the member considers warrant the case being brought to the Minister’s attention should be set out in the member’s statement of decision and reasons and may also be set out in the referral letter to the Department.
16.4If an applicant requests a member to refer a case to the Department and the member decides not to do so, the member should refer to the request in the statement of decision and reasons and note that the applicant may make a request directly to the Minister.
16.5If the AAT has no jurisdiction to conduct a review, the Minister has no power under section 351 or section 417 to intervene. In such circumstances, the case should not be referred to the Department.
SUBMISSIONS OF THE PARTIES
The submissions of the parties addressed:
(a)a preliminary issue, described in different ways, which broadly relates to whether any error by the Tribunal in refusing to refer the matter to the Department or Minister for consideration of the exercise of the power in s 417 of the Migration Act can, on judicial review, vitiate the Tribunal’s decision under s 415 of the Migration Act; and
(b)if the Tribunal’s refusal to refer a matter for consideration of the exercise of the power in s 417 is amenable to judicial review, whether there was jurisdictional error in the present case.
Given that the second issue, relating to whether the Tribunal made a jurisdictional error, need only be considered if the first issue, relating to whether a decision not to refer a matter to the Minister for ministerial intervention is amenable to judicial review, is resolved in the applicant’s favour, it is convenient to separately summarise the parties’ submissions in relation to these two issues.
The parties’ submissions in relation to the preliminary issue
The applicant’s submissions
In his written submissions, the applicant made the following submissions in relation to the features of the statutory and regulatory scheme:
(a)the Minister does not have power to make a decision under s 417(1) of the Migration Act unless the Tribunal has first made a decision under s 415;
(b)section 8 of the Ministerial Guidelines and paragraph 16 of the AAT Direction set out a procedure by which an applicant may, during a review before the Tribunal, ask the Tribunal to draw to the attention of the Minister a proposed request to the Minister under s 417 of the Migration Act and, in respect of such a proposed request, request that the case be brought to the Minister’s attention or referred to the Department;
(c)if an applicant makes a request to the Tribunal for the matter to be referred to the Minister, the Tribunal must deal with the request in accordance with paragraph 16 of the AAT direction;
(d)it is not inappropriate for an applicant to make an application to the Tribunal for merits review of a visa refusal decision which the applicant knows has no prospects of success, for the sole purpose of seeking a referral to the Minister;
(e)neither s 417 of the Migration Act nor any other provision specifies an application or request process leading to consideration by the Minister of the exercise of the power under s 417; and
(f)as long as the Tribunal has made a decision under s 415 of the Migration Act, an applicant may request directly to the Department that the Minister exercise the power in s 417, but there are benefits for an applicant if the Tribunal refers the case to the Department, including:
(i)the Department may initiate a request where a case is referred by a review tribunal (section 8 of the Ministerial Guidelines);
(ii)the member’s views will be brought to the Minister’s attention by the Department (paragraph 16.1 of the AAT Direction);
(iii)if an applicant makes a request directly to the Minister for consideration of the exercise of power in s 417, before referring the request to the Minister, under the Ministerial Guidelines, the Department must be satisfied that the request meets the ‘unique or exceptional circumstances’ test in section 4 of the Ministerial Guidelines and not fall within any of the ‘inappropriate to consider’ categories in section 7 of the Ministerial Guidelines, whereas, if a request is made to the Tribunal, the Tribunal need only consider whether the request meets the ‘unique or exceptional circumstances’ test in section 4 of the Ministerial Guidelines.
In his written submissions, the applicant pre-empted a submission from the Minister to the effect that the Tribunal’s task was limited to a review of the decision of the Minister’s delegate under s 65 of the Migration Act and that any finding, observation or recommendation of the Tribunal that is not part of the Tribunal’s statutory task is not amenable to judicial review, and submitted that such a contention would be wrong because:
(a)the scope of the functions of a merits review body are not necessarily the same as the scope of functions of the original decision-maker, and the scope of the functions of the review body are to be determined by reference to the statutory scheme; and
(b)the following aspects of the statutory scheme indicate that the Tribunal must consider and deal with a request by an applicant for a case to be brought to the Minister’s attention pursuant to s 417 of the Migration Act:
(i)s 415(2) of the Migration Act, which deals with the ‘powers’ of the Tribunal in relation to the decision under review, does not have the effect that the Tribunal has no obligation to consider and deal with a request by an applicant that a case be brought to the Minister’s attention under s 417 of the Migration Act, because the Tribunal making a finding or recommendation in its decision that the ‘the circumstances … warrant the case being brought to the Minister’s attention’ does not involve the exercise of a ‘power’;
(ii)an ‘issue in relation to the review’ may be whether, if the Tribunal affirms the delegate’s decision, the Minister might exercise the power in s 417 of the Migration Act, noting that s 423(1) allows an applicant to make written arguments ‘relating to the issues arising in relation to the decision under review’ and the expression ‘in relation to’ is of broad import;
(iii)s 425 of the Migration Act requires the Tribunal to invite the application to appear before it to give evidence and to present arguments ‘in relation to the decision under review’, which may involve whether, if the Tribunal affirms the decision, the Minister might exercise the power in s 417, and such a construction is supported by paragraph 16 of the AAT Direction; and
(iv)s 430(1) of the Migration Act requires the Tribunal to make a written statement that ‘sets out the decision of the Tribunal on the review’, which includes a finding in response to any request by an applicant for the case to be referred to the Minister for consideration under s 417 of the Migration Act, and paragraph 16 of the AAT Direction supports such a construction.
In his oral submissions, Counsel for the applicant submitted that a central issue in the matter is the scope of the Tribunal’s powers of review and whether it includes an obligation to consider a referral to the Minister to consider exercising a power under s 417 of the Migration Act. The applicant referred to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [10] and Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10 at [31] to support the contention that the term ‘review’ does not have a fixed meaning and takes meaning from the context in which it appears.
Counsel for the applicant submitted that the scope of the review in the present matter includes consideration of whether the matter should be referred to the Minister for consideration of the exercise of the discretion in s 417 of the Migration Act. Counsel for the applicant submitted that the powers in ss 415 and 417 are part of the same administrative continuum and, in this regard, it is relevant that s 417 is placed within the same division of the Migration Act as s 415 and that the power in s 417 is only enlivened once the Tribunal has made a decision under s 415. Counsel for the applicant submitted that the wording of s 415 of the Migration Act, which says that the Tribunal ‘may … exercise all the powers and discretions that are conferred by this Act on the person who made the decision’ is inclusive rather than exclusive and does not prevent the Tribunal from taking some step beyond the powers and discretions conferred by the Migration Act. Counsel for the applicant also submitted that the making of a recommendation for referral to the Minister is not an exercise of power.
Counsel for the applicant submitted that the phrase ‘arising in relation to’, used in s 425 of the Migration Act can have a broad construction and it is not inconsistent with the legislative scheme that one of the issues arising in relation to the review is whether the Tribunal should recommend to the Department that the Minister exercise the power in s 417 of the Migration Act.
Counsel for the applicant referred to s 18B of the AAT Act to distinguish Fernandez v Minister for Immigration and Border Protection (2015) 238 FCR 251; [2015] FCA 1265 (Fernandez) and submitted that in Fernandez the applicant relied on the Department’s Procedure and Advice Manual (PAM 3), which contains policy that is not binding on the Tribunal and cannot affect the meaning of the word ‘review’ or the scope of the review, whereas in the present case there was a direction under s 18B which could affect the scope of the review. Counsel for the applicant noted that the direction was made in August 2018 and therefore was not in place in 2015 when Fernandez was decided. Counsel for the applicant submitted that in Fernandez the Court did not give a conclusive determination concerning the proper construction of the meaning of the word ‘review’ and was simply not persuaded by the appellant’s submissions. Counsel for the applicant observed that in Fernandez Robertson J referred to Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 (Plaintiff S10) and Counsel for the applicant submitted that in the later case of Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438; [2019] FCA 452 (Jabbour), Robertson J found that the dispensing powers are conditioned by an obligation to act reasonably and are amenable to judicial review in that way. Counsel for the applicant did not submit that Robertson J had fundamentally changed his position between deciding Fernandez and deciding Jabbour, but suggested that in Fernandez, his Honour was referring to parts of Plaintiff S10 that indicated that a decision not to refer a matter under the guidelines was prima facie not amenable to judicial review, whereas in Jabbour, his Honour found the position was different, at least in relation to legal unreasonableness.
Counsel for the applicant submitted that the Tribunal in conducting a review has a number of discretionary powers, which are amenable to judicial review. Counsel relied on this to support a submission that just because there is nothing in s 415 of the Migration Act that expressly refers to an obligation on the Tribunal to consider requests for referral to the Minister does not mean that the conduct or action associated with that step by the Tribunal cannot be amenable to judicial review.
In response to a question from the Court in relation to the impact of s 18B(2) of the AAT Act on the applicant’s submissions, Counsel for the applicant submitted that conduct of the Tribunal in relying on the invalid Ministerial Guidelines is not caught by s 18B(2) and does not involve a failure by the Tribunal to comply with the AAT Direction. Counsel for the applicant further submitted that, on a proper construction of s 18B(2) of the AAT Act, a failure by the Tribunal to comply with the AAT Direction does not necessarily invalidate something done by the Tribunal and, instead, in each matters the nature of the failure and the significance of its impact on the carrying out of the review would be relevant in assessing whether there is jurisdictional error.
The Minister’s submissions
In his written submissions, the Minister submitted that the applicant overlooks the Tribunal’s functions under Part 7 of the Migration Act, with the ‘core function’ under s 414(1) of the Migration Act being to review the ‘Part 7-reviewable decision’, as defined in s 411, and the Tribunal’s powers on review being those set out in s 415.
The Minister submitted that none of the statutory provisions referred to by the applicant supports the expansion of the Tribunal’s functions to review the delegate’s decision not to grant a protection visa. The ‘powers and discretions that are conferred by the Act on the person who made the decision’ do not include referring a case to the Minister for intervention, but rather are concerned with making a decision on the visa application under s 65 of the Migration Act. Further, none of the powers in s 415(2) pertains to the referral of cases for intervention by the Minister.
The Minister submitted that the AAT Direction cannot change, or expand, the scope of the statutory functions or powers of the Tribunal.
The Minister submitted that there were a number of cases on this issue that contradict the applicant’s case, including Fernandez, Searle v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 94 (Searle), Akula v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2661 (Akula) and AFG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1361 (AFG20).
The Minister submitted that the ‘review’ conducted by the Tribunal was limited to the review of the delegate’s decision not to grant the applicant a protection visa and therefore any request for referral for Ministerial intervention fell outside of the Part 7 review and was not relevant to any discharge of the Tribunal’s functions. The applicant in this matter does not take issue with the decision of the Tribunal to affirm the delegate’s decision, but rather cavils with the Tribunal’s reasons for decision relating to a matter falling outside the scope of the review of the delegate’s decision.
The Minister submitted that any error by the Tribunal in relation to its consideration of whether to refer the matter to the Minister for intervention was not material because, even if the choice as to whether to refer his case to the Minister for intervention might have been different, the Tribunal’s decision on review, being the migration decision under challenge in this proceeding, would have remained the same.
In his oral submissions, Counsel for the Minister submitted that the applicant’s case boils down to two propositions:
(a)the decision or determination of the Tribunal not to refer to case to the Department for ministerial intervention is affected by a number of errors; and
(b)by reason of (a), the Tribunal’s decision under s 415(2) of the Migration Act is affected by jurisdictional error.
Counsel for the Minister submitted that there is a fundamental difficulty with that case, before one even gets to the specific complaints. The decision on review was made under s 415(2)(a) of the Migration Act. Section 417 of the Migration Act, which confers power on the Minister the power to substitute for a decision of the Tribunal under s 415 another decision which is more favourable to the applicant, presupposes that a decision has already been made by the Tribunal on review under s 415. A determination to refer or not refer a case to the Department for consideration by the Minister also presupposes that a decision has already been made under s 415, because one can only decide whether or not to refer a case for ministerial intervention if a decision has been made on the review under s 415. If a determination not to refer a case to the Department for consideration by the Minister under s 417 proceeds on the footing that a decision under s 415 has already been made, it cannot vitiate that decision under s 415 of the Migration Act.
Counsel for the Minister submitted that in this respect an analogy can be drawn with Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609; [2000] HCA 1, in which it was held that a breach of s 430 of the Migration Act, which imposes on the Tribunal an obligation to give reasons for its decision, would not amount to a jurisdictional error because the obligation to give reasons presupposes that the Tribunal has already made its decision on review under s 415. Counsel for the Minister submitted that no errors in [159]-[163] of the Tribunal’s written statement could vitiate the Tribunal’s decision under s 415(2)(a) of the Migration Act, being the only migration decision that is challenged in these proceedings.
Counsel for the Minister submitted that the Tribunal was not exercising any power under s 415(1) of the Migration Act in deciding whether to refer the case to the Department for ministerial intervention, because the core function of the Tribunal was to review the delegate’s decision and, in performing that duty, its powers and functions were limited to those that were conferred on the Minister’s delegate, which did not include deciding whether to refer the case ministerial intervention.
In response to the submissions made by Counsel for the applicant in relation to the scope of the word ‘review’, Counsel for the Minister accepted that the word ‘review’ takes its meaning from its context but submitted that the context here included s 415 and neither that section nor any other section in Part 7 of the Migration Act says anything about the Tribunal referring cases to the Department for intervention. Counsel for the Minister submitted that the applicant’s reliance on s 425 of the Migration Act does not advance his case. Section 425 directs attention to the issues that are dispositive to the Tribunal’s decision and whether to refer a case to the Department for ministerial intervention is not an issue dispositive to the Tribunal’s decision to affirm the primary decision-maker’s decision not to grant a protection visa. Counsel for the Minister submitted that the words ‘in relation to’ are not of broad import, relying on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, where the High Court said at [34] that the statutory language ‘arising in relation to the decision under review’ is more particular than simply whether the applicant is entitled to a protection visa.
Counsel for the Minister submitted that the core contention of the Minister in this case is that the review conducted by the Tribunal did not involve whether to refer the case for ministerial intervention, and that is the case irrespective of the AAT Direction issued under s 18B of the AAT Act. Counsel for the Minister submitted that the applicant’s reliance on the AAT Direction is misplaced, because that Direction cannot alter the terms of the Migration Act and the fact that something appears in the Direction does not mean that the scope of the review includes referring cases to the Department for ministerial intervention. The manner in which the Tribunal is required to conduct a review is set out in Division 4 of Part 7 of the Migration Act, not the AAT Direction. Counsel for the Minister submitted that paragraph 16 of the AAT Direction concerns the procedure of the Tribunal. The requirement in subparagraphs 16.3 and 16.4 for the Tribunal member to state certain matters in their reasons for decision is of no consequence because the AAT Direction cannot alter the terms of s 430 of the Migration Act. It does not mean that the question of referral for ministerial intervention forms part of the decision on the review or forms part of the findings on the material questions of fact. It cannot expand the scope of a review under Part 7 of the Migration Act. Nothing in the AAT Direction can have the effect that a precondition to the validity of a decision under s 415(2) of the Migration Act is the making of a valid determination to refer or not to refer a case to the Minister for intervention.
Counsel for the Minister submitted that s 18B(2) of the AAT Act poses some difficulty for the applicant in this case and undermines this case. Even if, contrary to the Minister’s submissions, the Court were to accept the applicant’s submission that the AAT Direction shapes the conduct of review, any misconstruction of the AAT Direction does not result in jurisdictional error in the Tribunal decision, because s 18B(2) so provides.
Counsel for the Minister submitted that if the AAT Direction does not shape the conduct of the review, then [81] of Fernandez is fatal to the applicant’s case. Counsel for the Minister submitted that Fernandez is not relevantly distinguishable in this case and noted that there was an earlier version of a direction made by the Tribunal, expressed in similar terms to paragraph 16 of the AAT Direction, which Robertson J referred to in Fernandez at [49] of his reasons.
Counsel for the Minister submitted that Jabbour has no relevance to the issues in the present case and there is no tension between it and the earlier decision in Fernandez. The point made in Fernandez is that the decision of the Tribunal on review under ss 349 or 415 is not vitiated by an error in a decision or determination by the Tribunal not to refer a case for ministerial intervention. The point in Jabbour is that a decision by the Department that a case did not meet the criteria in the Ministerial Guidelines may be challenged on reasonableness grounds. But that has nothing to do with the question of whether any error in a determination or decision has the consequence that there is a jurisdictional error in a decision of the Tribunal under s 415 of the Migration Act.
The parties’ submissions about the alleged jurisdictional errors
The applicant’s submissions
The applicant provided the following written submissions as to why the Tribunal’s reasoning process in declining to refer the matter to the Minister is vitiated by jurisdictional error.
The applicant submitted that, at the time of the Tribunal decision, the Ministerial Guidelines were unlawful because they transgressed the limits on executive power imposed by s 417 of the Migration Act, for the reasons explained by the High Court in Davis.
The applicant submitted that the Tribunal misapplied the Ministerial Guidelines, because the Tribunal did not comply with the instruction at section 8 to ‘refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of these guidelines’ and instead assessed whether the case fell within the types of matters described as ‘inappropriate to consider’ in section 7 of the Ministerial Guidelines.
The applicant submitted that the Tribunal misapplied the bullet point it relied on in section 7 of the Ministerial Guidelines, which suggests a case should not be referred where ‘the person’s application for a Partner visa onshore, as prescribed under reg 2.12(1) of the Migration Regulations 1994 (Cth), has been refused and the person is now barred from applying for a Partner visa onshore’, because, properly construed, the partner the subject of the past onshore partner visa application that has been refused and the desired further partner visa application is the same person, and the bullet point does not apply where the person wishes to make a new partner visa application sponsored by a different partner’, as the applicant did here.
The applicant submitted that the alleged error by the Tribunal was material because there are benefits for an applicant if the Tribunal makes a referral in its decision and human experience and common sense suggests that an officer of the Department is more likely to refer a case to the Minister if there is a referral or recommendation from the Tribunal.
The oral submissions advanced by Counsel for the applicant at the hearing were consistent with the applicant’s written submissions.
The Minister’s submissions
The Minister did not address this issue in his written submissions, but Counsel for the Minister did address, in his oral submissions, the alleged jurisdictional errors.
Counsel for the Minister submitted that the applicant’s complaint that the Ministerial Guidelines are invalid, following the High Court’s judgment in Davis, misunderstands Davis. The problem in Davis was that, via the Ministerial Guidelines, the Minister purported to entrust to officers in the Department the evaluation of the public interest in s 315(1) of the Migration Act but, in so doing, the Minister exceeded the statutory limit on executive power imposed by that provision. The same problem does not arise in this case because all the Tribunal was doing was deciding whether or not to bring the case to the attention of the Department, which would in turn decide whether or not to refer the case to the Minister. There was no exercise of any non-statutory executive power in deciding not to refer the case to the Department.
Counsel for the Minister submitted, in response to the applicant’s complaint that the Tribunal misapplied the Ministerial Guidelines by not addressing whether or not there were unique or exceptional circumstances as described in section 4 of the Ministerial Guidelines, that the Tribunal was entitled to form a view as to whether the case was one which the Minister had determined to be inappropriate to consider. Nothing in the Ministerial Guidelines required the person or entity making a referral to first form a view as to whether or not a case meets the unique or exceptional circumstances requirement described in section 4 of the Ministerial Guidelines.
In response to the applicant’s allegation that the Tribunal misapplied one of the bullet points in section 7 of the Ministerial Guidelines, Counsel for the Minister submitted that nothing in the Ministerial Guidelines suggest that the reference to a partner visa that has been refused is anything other than a reference to the fact that of that visa having been refused.
CONSIDERATION
The decision the subject of the application for judicial review
While not addressed in the summary of the parties’ submissions above, an issue arose at the hearing as to the ‘decision’ the subject of the judicial review application. While the applicant’s application indicates that he seeks review of the Tribunal decision made on 17 October 2022, which I understand to be the decision under s 415 of the Migration Act, aspects of his submissions caused me to wonder at the hearing whether he was seeking review of the refusal of the Tribunal to refer the matter to the Minister for consideration of the exercise of the powers in s 417 of the Migration Act as a separate ‘decision’. If the latter was the case, there may be implications in relation to the Court’s jurisdiction and Counsel for the Minister raised whether an amended application may be required.
Counsel for the applicant confirmed that he was seeking judicial review of a single decision, namely, the Tribunal decision of 17 October 2022, which has two parts. One part relates to whether the applicant is a person to whom Australia owes protection obligations, and the applicant does not cavil with that part of the decision. The other part of the decision relates to the decision not to refer the matter for consideration of ministerial intervention, and the applicant seeks relief in relation to that part of the decision.
While the position is not entirely clear from the submissions advanced at the hearing, taking into account the application and the manner in which the parties have advanced their submissions, I proceed on the basis that the applicant seeks review of the Tribunal decision made on 17 October 2022, which is a decision made under s 415 of the Migration Act, albeit the only ground advanced by the applicant, and the only challenge to the decision, relates to the refusal of the Tribunal to refer the case to the Department or the Minister for consideration of the exercise of the Minister’s discretion under s 417 of the Migration Act.
Consideration of the preliminary issue
As can be seen from the summary of the Minister’s submissions, the courts have previously considered whether a refusal by the Tribunal to refer a matter to the Minister for ministerial intervention is amendable to judicial review and have found that it is not.
While, at first glance, this may appear to be a complete answer to this application, the applicant relies on aspects of the statutory scheme that were not expressly referred to in the earlier cases and there is a nuance to his submissions that does not appear to have been present in some of the earlier cases. It is therefore convenient to commence my consideration of the application with a review of the past cases.
In Fernandez, Robertson J, in considering the Tribunal’s consideration of a request for referral for intervention by the Minister under s 351 of the Migration Act (which is similar in terms to s 417), said at [81]:
It has not been shown by the appellant that what the Tribunal said about Ministerial intervention was relevant to the discharge of its functions of review under the Migration Act. Put differently, I am not persuaded that the Tribunal’s referral or non-referral for Ministerial intervention was within the discharge of the Tribunal’s duty of review under the Migration Act. Although detailed submissions were not made by either side on this point, I reach this conclusion by reference to ss 476(1), (2)(d) and 474(7)(a) of the Migration Act and to the reasoning in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [45]-[48] and [100], and Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [46], [50]-[52], [100] and [118]-[119]. That reasoning pointed out the exceptional, personal and non-compellable nature of powers such as those conferred by s 351.
The issue has also been considered in at least three cases in this Court.
In AFG20, Judge Mercuri (as her Honour then was) considered an argument that the Tribunal unreasonably refused to recommend Ministerial intervention under s 417 of the Migration Act and said at [121]-[128] (footnotes omitted):
121.In any event, the real question in this ground is whether the tribunal’s consideration of the request for a referral for Ministerial intervention was a necessary part of the tribunal’s discharge of its review function and therefore any error in determining whether or not to make the recommendation could not amount to jurisdictional review.
122.Deciding whether or not to refer a matter to the Minister for exercise of their discretion under section 417 is not part of the tribunal’s review function.
123.Without determining whether there is any error in that decision making process, any such error cannot therefore amount to jurisdictional error, as it does not result in:
a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.’
[citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [24]]
124.The tribunal’s powers are confined by the terms of the Act. Considering whether to refer a matter to the Minister for his consideration under section 417 of the Act is not such a power.
125.The applicant has not pointed to any provision in the Act which empowers the tribunal to make a recommendation under section 417. The applicant appears to rely upon the PAM3 as the source of this power.
126.A similar argument to that advanced in this case was advanced in Fernandez v Minister for Immigration and Border Protection and Anor (2015) 238 FCR 251; [2015] FCA 1265 where the applicant similarly requested the tribunal to support an application for Ministerial intervention in the event that it did not grant the applicant’s application.
127.In that case, it was held that the PAM3 is not a direction made under section 499 of the Act and therefore does not impose a duty on the tribunal to consider the issue of Ministerial intervention. Moreover, Robinson J said:
It has not been shown by the appellant that what the Tribunal said about Ministerial intervention was relevant to the discharge of its functions of review under the Migration Act. Put differently, I am not persuaded that the Tribunal’s referral or non-referral for Ministerial intervention was within the discharge of the Tribunal’s duty of review under the Migration Act.
128.The same reasoning applies in this case. The applicant has not established how it is said that the tribunal’s decision not to seek Ministerial intervention falls within the discharge of its review obligations.
In Akula, Judge A Kelly, in considering the Tribunal’s refusal to refer a matter for ministerial intervention under s 351 of the Migration Act, said at [39] and [40]:
39.I agree that there is no requirement in the Act that obliges the Tribunal to make, or consider making, a referral for Ministerial intervention and that this is not part of the Tribunal’s review function: cf Fernandez v Minister for Immigration and Border Protection (2015) 238 FCR 251, [81]; AFG20 v Minister for Immigration & Anor [2020] FCCA 1361, [124]-[128]. Accordingly, had any error been committed in deciding whether or not to refer the applicant’s case to the Minister (which was not sought), any such failure could not amount to jurisdictional error.
40.The Procedural Advice Manual 3 (PAM3) Minister’s guidelines on ministerial powers ss 351, 417 and 501J states that a Tribunal may refer a matter to the Minister if it is satisfied there are unique or exceptional circumstances. Those guidelines, dated 11 March 2016, are expressly issued for the purposes of ss 351, 417 and 501J of the Act. They are not, and are not to be misunderstood as, a direction having effect under s 499 of the Act and do not expand the Tribunal’s review function: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43, [45].
In Searle, Judge Kendall considered whether the Court had jurisdiction to review the ‘non-referral’ of the matter to the Minister for consideration of the possible exercise of the Minister’s intervention powers. His Honour considered the reasoning in AFG20 and Fernandez and found that the reasoning and conclusions of the courts in those cases also applied in the case before him. His Honour proceeded to continue to consider the jurisdiction of the Court to review the non-referral of a matter to the Minister and said at [101]-[107]:
101.As correctly outlined by the Minister in this matter (at [4] to [6] in further written submissions dated 9 September 2021), where the Tribunal affirms a decision refusing to grant the applicant a visa because of a failure to meet a mandatory criterion for the grant of that visa, the Minister has a statutory discretion to substitute a more favourable decision (as per subsection 351(1) of the Migration Act). Further, pursuant to s 351(3) of the Migration Act, the power under s 351(1) may only be exercised by the Minister personally and there is no duty imposed on the Minister to consider to exercise of the power in s 351(1) of Migration Act (as per s 351(7) of the Migration Act).
102.Here, as detailed above, the applicant did not satisfy the requirement in clause 187.233(3) of Schedule 2 of the Regulations (at CB 111). The Tribunal thus had no choice but to affirm the decision under review: as per Singh v Minister for Immigration and Border [2017] FCAFC 105.
103.This proceeding commenced in the Federal Circuit Court of Australia. Pursuant to s 8(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the “FCFCoA Act”), as from 1 September 2021 the federal court known before that date as the Federal Circuit Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 2). Pursuant to s 131(1) of the FCFCoA Act, the Federal Circuit and Family Court of Australia (Division 2) has such original jurisdiction as it vested in it by laws made by the Parliament. The combined effect of ss 8(2) and 131(1) of the FCFCoA Act and s 476 of the Migration Act is that this has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
104.Here, the applicant applied to this Court to review the Tribunal’s decision to affirm the decision refusing to grant him a visa. The Tribunal’s decision is reviewable by this Court pursuant to s 476(1) of the Migration Act as it is a “migration decision” as that term is defined in ss 5(1), 5E and 474(2), (3) and (6) of the Migration Act.
105.In relation to the Court’s jurisdiction to review, the Minister in this matter argues as follows:
19.However, the non-referral to the Minister for possible intervention under s 351(1) of the Migration Act is not a “migration decision” for the purposes of the Migration Act. This is because it was not a decision of an administrative character made or purportedly made under the Migration Act or under a regulation or other instrument made under the Migration Act: see the definition of “privative clause decision” in s 474(2) and the definition of purported privative clause decision” in s 5E.
20.Subsection 348(1) of the Migration Act provides that, subject to subsection (2) (here not relevant), if an application is properly made under s 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision. Section 349 then deals with the Tribunal’s powers on review of Part 5-reviewable decisions, s 350 deals with the review of assessments made under s 93, and then s 351 provides a discretionary power to the Minister to substitute for a decision of the Tribunal under s 349 a decision more favourable to the applicant. Division 3 of Part 5 of the Migration Act concludes with s 352 which requires notification to the Secretary of review applications made to the Tribunal, and the Secretary’s obligations after being so notified.
21.What is noticeably absent in Division 3 of Part 5 of the Migration Act (or anywhere else in that Act) is any provision giving power or discretion to the Tribunal to refer a matter to the Minister for consideration of the exercise of the Minister’s powers under s 351(1) when the Tribunal has made a decision adverse to the applicant. Accordingly, in the event that the Tribunal makes an adverse decision in relation to an applicant, and also does not refer that adverse decision to the Minister for possible intervention under s 351(1), that subsequent “administrative act” is not a “migration decision”, as it is not a decision made or required to be made under the Migration Act. Nor is there any provision of the Migration Regulations 1994, or of any other instrument made under the Migration Act, which provides for the possible referral by the Tribunal of an adverse decision to the Minister.
106.The Court agrees. Her Honour Judge Mercuri’s findings in relation to the Tribunal’s refusal to refer the matter to the Minister for possible intervention under s 417 of the Migration Act apply here in relation to a request for intervention pursuant to under s 351(1) of the Migration Act. Here, the Tribunal also has no statutory power to refer a matter to the Minister for his consideration under s 351(1) of the Migration Act.
107.The decisions of AFG20 and Fernandez support the Minister’s conclusion that the Court has no jurisdiction to review the non-referral in this matter. As rightly noted by the Minister, the decision to not refer was not a migration decision reviewable by the Court under s 476(1) of the Migration Act and it did not fall within the discharge of the Tribunal’s review functions under that Act. Any concerns the applicant has about the Tribunal’s “refusal” to refer his matter to the Minister are not concerns of a sort that can be addressed by the Court on judicial review. This Court has no jurisdiction to review the non-referral. Neither the Migration Act nor any regulation or instrument made under that Act gives the Tribunal a power to refer an adverse decision to the Minister for the possible exercise of the Minister’s powers under s 351(1) of the Migration Act.
I am required to follow the Federal Court’s judgment in Fernandez unless it can be distinguished, and as a matter of comity I should follow the three cases of this Court (or its predecessor) unless I am satisfied that they are plainly wrong.
The main way in which the applicant seeks to distinguish Fernandez is by relying on the AAT Direction, made under s 18B of the AAT Act, to submit that the scope of the Tribunal’s powers and functions on review include consideration of whether to refer the matter to the Minister for consideration of the exercise of the power in s 417 of the Migration Act.
As can be seen from the cases referred to above, the applicants in those cases appear to have relied on the Department’s PAM 3 policy guidelines in advancing their submissions, whereas in the present case, the applicant relies on the AAT Direction made under s 18B of the AAT Act. While there was Tribunal guidance note referred to in Fernandez at [49], that predated the introduction of s 18B of the AAT Act.
I do not consider that Fernandez or the three cases of this Court referred to above can be distinguished on the basis of the applicant’s reliance on s 18B of the AAT Act and the AAT Direction.
I accept the Minister’s submission that a direction made by the Tribunal under s 18B of the AAT Act cannot change the scope of the statutory functions or powers of the Tribunal. The Tribunal’s statutory functions and powers relevant to the review it was required to conduct are set out in Part 7 of the Migration Act. Section 18B of the AAT Act allows, relevantly, the President of the Tribunal to make a direction in relation to procedure of the Tribunal and the conduct of reviews, but this does not allow the President to expand the powers or functions of the Tribunal that have been conferred by statute.
I therefore do not accept that the AAT Direction made under s 18B of the AAT Act is the source of a power or function of the Tribunal for the consideration of whether to refer the matter to the Minister or the Department for the consideration of the exercise of the Minister’s powers in s 417 of the Migration Act.
Even if it were, the applicant would still need to overcome the operation of s 18B(2) of the AAT Act, which indicates that a failure to comply with the AAT Direction will not invalidate anything done by the Tribunal. It is, however, unnecessary to address that further because it would be more relevant to the consideration of the asserted jurisdictional errors, rather than the preliminary issue.
Insofar as the applicant relies on the provisions of the Migration Act and the scope of the term ‘review’, I accept that the term ‘review’ can take its meaning from the context in which it appears. However, that does not assist the applicant in the present case. The review that the Tribunal is required to conduct under s 414(1) is to review the Part 7-reviewable decision, which in this case is the delegate’s decision made under s 65 of the Migration Act to refuse to grant the applicant a protection visa. There is nothing in that provision, the powers of the Tribunal in s 415 or any other provision in Part 7 of the Migration Act that would indicate that a statutory function of the Tribunal in reviewing the delegate’s decision includes considering whether to refer a matter to the Minister or the Department for the consideration of the possible exercise of the power in s 417.
I also accept the Minister’s submission that any refusal by the Tribunal to refer the matter to the Department or the Minister for consideration of the exercise of the power in s 417 of the Migration Act could not vitiate the Tribunal’s decision under s 415 of the Migration Act, as any consideration of whether or not to refer the matter to the Minister could only arise after a decision under s 415 has been made. Given that s 417 allows the Minister to substitute for a decision of the Tribunal a decision that is more favourable to the applicant, the consideration of the exercise of that power can only arise once the Tribunal has made a decision. It follows that any consideration by the Tribunal of whether to refer the matter to the Minister or the Department presupposes that a decision under s 415 has been made.
I also do not consider that the judgment in Fernandez is subject to any doubt based on Robertson J’s reference in that case to Plaintiff S10 and his Honour’s subsequent judgment in Jabbour. Nothing said by Robertson J in Jabbour, in which he considered that a determination by an officer of the Department not to refer a matter to the Minister was amenable to review on the grounds of unreasonableness, casts any doubt on the finding at [87] of Fernandez to the effect that anything the Tribunal says about ministerial intervention was not relevant to the discharge of the Tribunal’s functions of review under the Migration Act.
I therefore consider that it is appropriate to follow Fernandez, AFG20, Akula and Searle. The Tribunal was not exercising its statutory functions or powers in determining not to refer the matter to the Minister for consideration of the exercise of the powers under s 417 of the Migration Act. Its reasoning in relation to that issue cannot therefore establish jurisdictional error in the Tribunal’s decision under s 415 of the Migration Act.
The alleged jurisdictional errors
Given my findings in relation to the preliminary issue, it is unnecessary to address the alleged jurisdictional errors. Even if there were errors in the Tribunal’s reasons at [159]-[163] (and I make no finding in relation to that), any such errors could not result in jurisdictional error in the Tribunal’s decision affirming the delegate’s decision refusing to grant the applicant a protection visa.
CONCLUSION
The applicant has not established jurisdictional error in the Tribunal decision and the application for judicial review must therefore be dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 8 August 2024
4
19
3