Jabbour v Secretary, Department of Home Affairs [2019] FCA 452
File number:
NSD 1500 of 2018
Judge:
ROBERTSON J
Date of judgment:
3 April 2019
Catchwords:
MIGRATION – statutory power vested in Minister, acting personally, to substitute more favourable decision if the Minister thinks that it is in the public interest to do so – non-statutory guidelines issued by Minister on those ministerial intervention powers – whether action by officer of the Department that a repeat request not be referred to the Minister is judicially reviewable for legal unreasonableness – if so, whether action legally unreasonable
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Jabbour v Secretary, Department of Home Affairs [2019] FCA 452
Case
[2019] FCA 452
Decision Date
CaseChat Overview and Summary
In the case of Jabbour v Secretary, Department of Home Affairs, the applicants sought judicial review of a decision made by an officer of the Department of Home Affairs not to refer their matter to the Minister for consideration of exercising a power under the Migration Act. The applicants argued that the officer's decision was legally unreasonable. The court was required to determine whether the officer's decision was judicially reviewable for legal unreasonableness and, if so, whether the decision was legally unreasonable. The court found that the officer's decision was not judicially reviewable for legal unreasonableness. The court held that the officer's decision was a non-statutory guideline issued by the Minister and did not involve the exercise of a statutory power. As such, the decision did not attract the requirements of procedural fairness or legal reasonableness. The court further held that the officer's decision was not a failure to exercise jurisdiction, as the Minister was not obliged to consider exercising the power under the Migration Act. The court dismissed the applicants' application for review and ordered that the applicants pay the respondents' costs.
The decision in this case highlights the importance of distinguishing between statutory powers and non-statutory guidelines in administrative law. The court held that non-statutory guidelines, such as those issued by the Minister in this case, do not attract the requirements of procedural fairness or legal reasonableness. This is because the exercise of non-statutory guidelines is an executive function incidental to the administration of the Act and is within the executive power of the Commonwealth. The court further held that the failure to refer a matter to the Minister for consideration of exercising a statutory power does not amount to a failure to exercise jurisdiction, as the Minister is not obliged to consider exercising the power. This case provides important guidance for administrative decision-makers and applicants seeking judicial review of administrative decisions.
Orders
Orders of the court
1. The application for review, in the form of the amended originating application for relief under s 39B of the Judiciary Act 1903 (Cth) dated 27 November 2018, be dismissed.
2. The applicants pay the respondents’ 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
The relevant provision of the Migration Act is as follows:351 Minister may substitute more favourable decision(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 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.(2)In exercising the power under subsection (1), 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 this Act.(3)The power under subsection (1) may only be exercised by the Minister personally.(4)If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:(a) sets out the decision of the Tribunal; and(b) sets out the decision substituted by the Minister; and(c)sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.(5) A statement made under subsection (4) is not to include:(a) the name of the applicant; or(b)if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.(6)A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:(a)if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or(b)if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.(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 provision was considered by the High Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636. The Minister had declined to consider exercising the relevant power. At [4], French CJ and Kiefel J said the consideration by officers of the Department of the requests by the plaintiffs for the Minister to consider exercising non-compellable powers under the Migration Act did not attract the requirements of procedural fairness. Further, the Minister was not obliged to accord procedural fairness, in the form of the so-called hearing rule, in personally considering whether to exercise the Minister’s discretion under s 351. At [32] their Honours said requests, when made, did not enliven a statutory process attended by the requirements of procedural fairness. Their Honours said, at [51]:The guidelines under consideration in the present case are directions to departmental officers about the circumstances in which requests for consideration of the exercise of the Minister’s powers may be referred to the Minister. The work done by officers, acting under the guidelines, involves the acquisition of information and categorisation of requests or cases. It may be regarded, for the purposes of s 61 of the Constitution, as an executive function incidental to the administration of the Act and thus within that aspect of the executive power which “extends to the execution and maintenance ... of the laws of the Commonwealth.” There is, however, nothing about the character of the guideline processes, as an exercise of the executive power of the Commonwealth or otherwise, that attracts to them a requirement to observe procedural fairness. In the context of this case that requirement can only have significance if it conditions the exercise of the statutory powers conferred by the dispensing provisions.
Ratio Decidendi
Legal Principle Established
The applicants submitted that the existence in fact of reasons then engages the seriously considered obiter dictum in Singh (2014) 231 FCR 437 at [47] that “it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was” and that the “intelligible justification must lie within the reasons the decision-maker gave”. The court can, by reference to the reasons in fact given, “identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable” (see Singh at [45]). It followed, the applicants submitted, that the Court may discern legal unreasonableness from the second respondent’s reasons and the surrounding factual circumstances (ie the first way unreasonableness is put) whether or not it formed the view that the outcome was of itself unreasonable (ie the second way unreasonableness is put). That is, if the second respondent acted unreasonably by failing to comprehend the nature of the request, as the relevant non-statutory executive power required, then it did not matter whether the outcome might by itself otherwise be explicable, “bearing in mind that it is for the repository of power, and not the Court, to exercise the power” (see Singh at [45]).Consideration In my opinion, contrary to the Minister’s submission, neither Plaintiff S10/2011 nor Raikua constitutes a bar to the applicants’ success. As to Plaintiff S10/2011, I accept that judicial review for denial of procedural fairness and judicial review for legal unreasonableness may overlap in their operation. I also accept that procedural fairness and legal unreasonableness are analogous and closely linked principles as presumptions of law and implied as conditions of validity of the exercise of statutory power, subject at the level of principle to similar displacement for inconsistency. Nevertheless the principles are distinct in their history, principles and terms. I would not read the factors relied on by Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10/2011 at [98]-[99], which led in that case to the conclusion that the dispensing provisions were not conditioned upon observance of the requirements of natural justice, as necessarily meaning that the conditioning of those provisions by the requirement of legal reasonableness was to be construed as displaced. The mere fact that both principles may be displaced as a matter of statutory construction does not necessarily mean that because one principle, procedural fairness, is so displaced, the other principle, legal reasonableness, is also displaced. In my opinion, whether a person taking administrative action is required to give a reasonable opportunity to be heard to an affected person involves factors distinct from whether that person’s actions must be legally reasonable. That one error may be characterised as “at least” a failure to accord natural justice where breach of the rules of natural justice was excluded as a ground upon which an application may be made, as in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24], does not mean that there has not been a constructive failure to exercise jurisdiction. As in Dranichnikov at [25], the question remained whether what occurred, either characterised as a failure to accord natural justice or as that, and more as a constructive failure to exercise jurisdiction, entitled Mr Dranichnikov to relief under s 75(v) of the Constitution. See also Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [74]-[76] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.