S1083/2003 v Minister for Immigration - [2004] FCA 1455

FEDERAL COURT OF AUSTRALIA
S1083/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1455
MIGRATION – first request to Minister to exercise power under s 417 of the Migration Act refused – second request to Minister under s 417 of the Migration Act – whether decision or conduct of departmental officer not to take further action with respect to second request to the Minister reviewable
PRACTICE AND PROCEDURE – jurisdiction of the Federal Court to review decision or conduct of a departmental officer under the Migration Act
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 417, 476(2), 485(1)
Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673 cited
Minister for Immigration, Local Government and Ethnic Affairs v Ozmanian (1996) 71 FCR 1 discussed
Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 41 ALD 293; 137 ALR 103 discussed
S1083/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ORS
N 920 OF 2004
S1510/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ORS
N 1111 OF 2004
S428/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ORS
N 1112 OF 2004
MOORE J
11 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 920 OF 2004

BETWEEN:

S1083/2003
APPLICANTS

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JOANNE CONNOLLY, MANAGER, MINISTERIAL INTERVENTIONS UNIT ONSHORE PROTECTION, NEW SOUTH WALES, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
THIRD RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1111 OF 2004

BETWEEN:

S1510/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JOANNE CONNOLLY, MANAGER, MINISTERIAL INTERVENTIONS UNIT ONSHORE PROTECTION, NEW SOUTH WALES, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
THIRD RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1112 OF 2004

BETWEEN:

S428/2003
APPLICANTS

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JOANNE CONNOLLY, MANAGER, MINISTERIAL INTERVENTIONS UNIT ONSHORE PROTECTION, NEW SOUTH WALES, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
THIRD RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

11 NOVEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING N 920 OF 2004 THAT:
1.The application be dismissed as incompetent.

2.The applicants pay the costs of the first and third respondents.

THE COURT ORDERS IN PROCEEDING N 1111 OF 2004 THAT:
1.The application be dismissed as incompetent.

2.The applicant pay the costs of the first and third respondents.

THE COURT ORDERS IN PROCEEDING N 1112 OF 2004 THAT:
1.The application be dismissed as incompetent.

2.The applicants pay the costs of the first and third respondents.

Note: Settlement and entry of orders is…

Grounds of appeal

[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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Details

Case: [2004] FCA 1455
Decision Date: 11 NOVEMBER 2004

CaseChat Overview and Summary

The applicants, S1083/2003, S1510/2003, and S428/2003, sought review of decisions or conduct under the Migration Act 1958 (Cth) involving the exercise of ministerial power under section 417. They claimed that the conduct of Ms Joanne Connolly, a Departmental officer, in deciding not to refer their second requests for ministerial intervention to the Minister for consideration, amounted to a reviewable decision. The applicants argued that they were denied procedural fairness in the handling of their requests. The court had to determine whether it had jurisdiction to review the conduct of the Departmental officer under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The court found that section 476(2) of the Migration Act precluded it from reviewing the conduct of the Departmental officer in making decisions not to refer the applicants' requests to the Minister. The court reasoned that decisions not to consider exercising the power under section 417, even if made by a Departmental officer, are decisions of the Minister and are not judicially reviewable. This conclusion was supported by previous cases, Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs and Din v Minister for Immigration and Multicultural Affairs, which established that the Carltona principle does not apply to decisions not to consider exercising the power under section 417.

The court dismissed the applications as incompetent, finding that it lacked jurisdiction to review the conduct of the Departmental officer. The applicants were ordered to pay the costs of the respondents.

Orders