STDB &Ors v Minister for Immigration
[2006] FMCA 561
•21 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STDB &ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 561 |
| MIGRATION − Jurisdiction – review of Minister’s decision − where applicant challenged the decision of Minister on grounds a decision under s.417 Migration Act1958 was so unreasonable as to constitute failure to properly consider the exercise of her discretion − where applicant sought finding that the Federal Magistrates Court is required to consider decision by Minister under s.417 and investigate whether or not it was made in jurisdictional error − whether FMC has jurisdiction under s.476(7) to review a “purported privative clause” decision − whether there was invalidity in the limitation imposed by s.476(2)(b). |
| Federal Magistrates Court Rules2001 Migration Act 1958, ss.5E, 5(9), 198(2), 417, 476 Constitution of Australia, ss.71,75 Judiciary Act 1903 (Cth), s.39B(1) Migration Litigation Reform Act 2005 (Cth) Federal Magistrates Act 1999, s.10 |
| Re Minister for Immigration; Ex parte Applicant S134/2002 (2003) 211 CLR 441 R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Applicant S395 of 2004 v Minister for Immigration [2005] FCAFC 171 S1083/2003 v Minister for Immigration [2004] FCA 1455 Ah Yick v Lehmert (1905) 2 CLR 593 at 603-8 New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54 at 90 |
Yuen, Chris (2006) “Judicial Review of Migration Decisions in the Federal Magistrates Court”, NSW Law Society Journal April 2006, p 66
| Applicants: | STDB, SWWB, SWXB & SWYB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File numbers: | ADG49 of 2006 & ADG50 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 7 April 2006 |
| Date of last submission: | 7 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Charman |
| Solicitors for the Applicant: | McDonald Steed McGrath Lawyers |
| Counsel for the Respondent: | Mr M Roder |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
Substantive application be dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $3,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG49 of 2006 & ADG50 of 2006
| STDB, SWWB, SWXB & SWYB |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The application in respect of which these reasons are given is made by the respondent, who seeks an order pursuant to Rule 13.10 of the Federal Magistrates Court Rules2001 that the proceedings be dismissed on the following grounds.
“(a)By reason of the provisions of s.476(2) of the Migration Act 1958 (Cth) (the “Act”), the Federal Magistrates Court has no jurisdiction to review a decision or failure to make a decision under s.417 of the Act.
(b)Further, the proceedings do not disclose a reasonably arguable cause of action.”
The applicants, who are members of a family against whom it is alleged blood feud revenge is sought in their country of nationality, made an application to the Minister for Immigration and Multicultural and Indigenous Affairs requesting she consider exercising her discretion under s.417 of the Act to replace the decision of the second respondent confirming a decision not to grant the family protection visas with a decision more favourable to the applicants. On 31 January 2006 the applicants’ representative received a letter from The Hon. John Cobb MP dated 18 January 2006, advising that he had “decided against considering to exercise my powers under s.417”. The grounds of the application are:
“4.20The purported decision of the Minister to refuse the Applicant’s request that she/he consider intervening under s.417 of the Migration Act 1958 (Cth) was so unreasonable as to constitute a failure to properly consider the exercise of her/his discretion.
“4.21The Minister failed to consider the exercise of her/his discretion in accordance with the requirements of s.417 in that she/he failed to personally consider the request.
4.21.1The Minister has imposed Guidelines to determine those applications that are to be considered by her personally. The operation of these Guidelines constitute a fetter on the Minister’s discretion in that they preclude her from personally considering the exercise of her discretion.”
The applicant sought orders for:
“(1)a declaration that the Applicants have not had their matter finally determined in accordance with s.5(9) of the Act;
(2)an injunction restraining the first respondent from removing the applicants from Australia under s.198(2);
(3)certiorari quashing the decision of the Minister and mandamus requiring the Minister to consider the application personally in accordance with s.417.”
Section 417 is in the following form.
“417
(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 s.415 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) 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 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 must 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 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)any information that may identify the applicant; or
(c)if the Minister thinks that it would not be in the public interest to public interest to publish the name of another person connected in any way with the matter concerned – the name of that other person or any information that may identify 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 31 December (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.” (Emphasis added)
The High Court of Australia considered its powers in relation to s.417 in Re Minister for Immigration; Ex parte Applicant S134/2002 (2003) 211 CLR 441, where at [48] the majority, Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ, said
“There is a further point to be made. On the footing that prohibition or injunction and certiorari issue, directed to the Minister, the prosecutors seek mandamus requiring the Minister to reconsider the exercise of his power under s.417(1). However, s.417(7) states in terms that the Minister does not have a duty to consider whether to exercise the power conferred by s.417(1). That gives rise to a fatal conundrum. In the express absence of a duty, mandamus would not issue without an order that the earlier decision of the Minister be set aside. Further, in that regard, there would be no utility in granting relief to set aside that earlier decision where mandamus could not then issue.”
The dissenters, Gaudron and Kirby JJ, expressed similar concerns at [100]:
“Sub-section 7 of s.417 provides:
“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.”
Given that there is no duty on the Minister to consider an application that he substitute a more favourable decision under s.417(1) of the Act, mandamus cannot issue to compel consideration of the application made on behalf of the prosecutors even if the Minister’s earlier refusal is set aside. Even if it could be said that the Minister’s refusal to exercise his power under s.417(1) of the Act involved jurisdictional error – a matter on which we express no opinion – such that prohibition or certiorari might issue in respect of it, it may be that those remedies would serve no useful purpose. That is because mandamus cannot issue and, absent relief by way of mandamus, the prosecutors’ only right is to have their visa applications determined by the Tribunal in accordance with law, which right is secured by the relief with respect to the Tribunal’s decision.”
So far as this court is concerned there must therefore be serious doubt as to whether it would be able to make orders for mandamus as requested in the application.
In order to come to a conclusion as to whether or not the Federal Magistrates Court of Australia has the jurisdiction to hear a claim for judicial review of a decision of the Minister under s.417 it is appropriate to look at the history. There is a constitutionally created Federal Court, the High Court of Australia (s.71 Constitution), whose jurisdiction is set out in s.75. Relevantly in s.75(v) the High Court has original jurisdiction in any matter
“in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.”
This jurisdiction cannot be diminished by any Act of Parliament, but its scope may be qualified: R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. The Parliament also has power under the Constitution (s.71) to create other federal courts and invest them with federal jurisdiction. The jurisdiction vested in such courts may be limited by the Parliament, so that if no jurisdiction is conferred it cannot be exercised. The Judiciary Act 1903 (Cth) was amended in 1992 to grant to the Federal Court a judicial review jurisdiction similar to that of the High Court under s.75(v):
“s.39B(1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.”
When the Parliament created the Federal Magistrates Court under the Federal Magistrates Act 1999, it expressed its jurisdiction as being:
“10 [Jurisdiction]
(1)The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by the Parliament:
(a)by express provision; or
(b)by the application of s.15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Magistrates Court in relation to a matter.
(2)The original jurisdiction of the Federal Magistrates Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.
(3)The process of the Federal Magistrates Court runs, and the judgments of the Federal Magistrates Court have effect and may be executed, throughout Australia.”
In relation to migration matters, s.476 of the Act is in the following form:
“(1)Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under s.500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under ss.501, 501A, 501B or 501C;
(d)a privative clause decision or purported privative clause decision mention in subsection 474(7).
(3) Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under s.8 of the Administrative Decisions (Judicial Review) Act 1977 or s.44AA of the Administrative Appeals Tribunal Act 1975.
(4) In this section :
“primary decision” means a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or 7 or s.500 (whether or not it has been reviewed); or
(b)that would have been so reviewable if an application for such review had been made within a specified period.”
This section had been amended by the Migration Litigation Reform Act 2005 (Cth). The effect of the amendments were to make the Federal Magistrates Court the sole court of review of the decisions of the Refugee Review Tribunal and the Migration Review Tribunal by excluding the Federal Court’s jurisdiction except in isolated matters such as decisions under s.501 of the Act, and allowing the High Court to remit matters filed in its original jurisdiction to the Federal Magistrates Court. The Minister stated in the Second Reading Speech for the Migration Litigation Reform Bill 2005 that:
“A key feature of the bill is to enhance the role of the Federal Magistrates Court in migration cases. … It is commonsense that efficiency is to be gained by directing migration cases to the Federal Magistrates Court. To that end, the bill limits the original jurisdiction of the Federal Court in migration cases.” (10 March, 2005, p 3)
The Bill further centralised the Federal Magistrates Court’s role in relation to review of migration cases by expanding the ability of the High Court to remit migration cases filed in its original jurisdiction directly to the Federal Magistrates Court, and expressly without hearing. In so doing the Minister stated that
“This is an appropriate efficiency for the handling of all matters filed in the High Court. The High Court is the apex of our judicial system. It should not be burdened with cases that are more appropriately handled by a lower court.” (Minister, Second Reading Speech, 10 March, 2005, p 3)
The original grant of jurisdiction in migration matters to the Federal Magistrates Court was accompanied by an amendment to the Migration Act, described in Aronson and Dyer (2004) Judicial Review and Administrative Action 3rd Edition at [34]:
“The migration and judicial review legislation were radically amended in 2001. The Migration Act 1958 (Cth) gained a savage looking privative clause, the Government’s intent essentially being to leave bad faith as the only ground of challenge. At the same time, the Government bowed to the protests regarding the trial burden it had imposed on the High Court. The same legislation which brought in the privative clause restored the ADJR in s.39B migration jurisdiction of the Federal Court and the Federal Magistrates Court, subject (as in the High Court’s case) to the privative clause. However, the High Court gave a minimalist interpretation to the privative clause in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.…As now interpreted the privative clause offers no protection to jurisdictionally flawed migration decisions and not a lot of ammunition for re-characterising statutory requirements previously regarded as jurisdictional to now be non-jurisdictional.”
It could be said that the decision in Plaintiff S157 v Commonwealth (2003) 211 CLR 476 exhibited a compromise between the legislature and the judiciary, whereby the judiciary accepted the ability of the legislature to qualify its jurisdiction but the legislature tacitly accepted the limitation imposed upon such qualification to decisions which were validly made.
The Court in S157 concluded that an administrative decision that was infected with jurisdictional error was not a valid decision, it was only a purported administrative decision and as such was not covered by s.474. At [19] Gleeson CJ:
“On the other hand it may be that, as in Hickman, the impugned act is not to be treated as if it were valid. In the case of a purported exercise of decision-making authority, limitation on authority is given effect, notwithstanding the privative provision. That may involve a conclusion that there was not a “decision” within the meaning of the privative clause. In a case such as the present, it may involve a conclusion that a purported decision is not a “decision…under this Act” so as to attract the protection given by s.474.”
The Chief Justice reinforced his view that a purported decision under the Act was not a decision and therefore was not amenable to limitations, such as that found in s.486A of the Act in regard to time limits, at [41] and [42].
Gaudron, McHugh, Gummow, Kirby and Hayne JJ, took up the question of purported decision-making at [74].
As previously indicated, it was argued on behalf of the plaintiff that s 474(1)(c) of the Act is directly inconsistent with s 75(v) of the Constitution. However, s 474(1)(c) cannot be read in isolation from the definition of "privative clause decision" in s 474(2). That definition relevantly confines "privative clause decision[s]" to decisions "made, proposed to be made, or required to be made ... under this Act".
[75] When regard is had to the phrase "under this Act" in s 474(2) of the Act, the words of that sub-section are not apt to refer either to decisions purportedly made under the Act or, as some of the submissions made on behalf of the Commonwealth might suggest, to decisions of the kind that might be made under the Act. Moreover, if the words of the sub-section were to be construed in either of those ways, s 474(1)(c) would be in direct conflict with s 75(v) of the Constitution and, thus, invalid. Further, they would confer authority on a non-judicial decision-maker of the Commonwealth to determine conclusively the limits of its own jurisdiction and, thus, at least in some cases, infringe the mandate implicit in the text of Ch III of the Constitution that the judicial power of the Commonwealth be exercised only by the courts named and referred to in s 71.
[76] Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision[s] ... made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all”: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 at 606 [51] per Gaudron and Gummow JJ, 608 [63] per McHugh J, 624-625 [152] per Hayne J; 187 ALR 117 at 129, 131, 154-155. Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties"(see R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248 per Dixon J. See also Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 632 per Gaudron and Gummow JJ) or to observe "inviolable limitations or restraints" (R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 419 per Mason ACJ and Brennan J), the decision in question cannot properly be described in the terms used in s 474(2) as "a decision ... made under this Act" and is, thus, not a "privative clause decision" as defined in ss 474(2) and (3) of the Act (see Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 635 per Gaudron and Gummow JJ) .
[77] To say that a decision that involves jurisdictional error is not "a decision ... made under [the] Act" is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction.
[78] The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft Order Nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a "privative clause decision" as defined in s 474(2) of the Act.
This reference to “purported privative clause decisions” is important in the context of this proceeding because of the use of that phrase in s.476 of the Act in granting jurisdiction to the Court. A “purported privative clause decision” is defined in s.5E of the Act as follows:
“(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
(c) in the making of the decision.
(2) In this section, decision includes anything listed in ss.474(3).
But I will return to this aspect of the matter.
Before the amendments contained in the Migration Litigation Reform Act 2005, s.476 of the Act limited the jurisdiction of the Federal Court and the Federal Magistrates Court, in respect of decisions under s.417, in the following manner.
“476 Federal Court and Federal Magistrates Court do not have any other jurisdiction in relation to certain privative clause decisions.
…
(2) Despite any other law (including s.483A, ss39B and 44 of the Judiciary Act 1903, s.32AB of the Federal Court of Australia Act 1976 and s.39 of the Federal Magistrates Act 1999), the Federal Court and the Federal Magistrates Court do not have any jurisdiction in respect of a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under…s.417…”
This section was considered by a Full Bench of the Federal Court in Applicant S395 of 2004 v Minister for Immigration [2005] FCAFC 171. In this case an applicant had sought relief from the High Court in respect of a decision under s.417. Hayden J transferred the matter to the Federal Court, where it was heard by Moore J who dismissed the application on the grounds that the Federal Court had no jurisdiction. The matter went to appeal to a Full Bench, composed of Wilcox, Merkel and Jacobson JJ. In his reasons for judgment Wilcox J said
“[4] Section 476(2) of the Migration Act states this Court does not have any jurisdiction in respect of a decision of the Minister not to exercise, or not to consider the exercise of, the Minister’s power, inter alia, under s.417 of the Act.
[5] Section 476(4) of the Act provides that, despite s.44 of the Judiciary Act 1903 (Cth), the High Court must not remit a matter to the Federal Court if it relates to a decision or matter in respect of which the Federal Court would not have jurisdiction because of s.476.
[6] At one time, there might have been some uncertainty as to the operation of these statutory provisions. However, it is clear from the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1, 211 CLR 441, that relief cannot be granted pursuant to s.75(v) of the Constitution in relation to a decision by the Minister under s.417 of the Act: see [34], [38] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan JJ) and [98] to [100] (Gaudron and Kirby JJ).”
His Honour’s views were confirmed by Merkel J at [14]. In S1083/2003 v Minister for Immigration [2004] FCA 1455, Moore J considered the matter again and opined at [18]:
“While the language of s.476(2), raised for consideration in the present case, is not precisely the same as the language formerly used in s.485(1), nonetheless the differences are immaterial for present purposes. In my opinion, the reasoning of both Merkel J (save for his reasoning about review of conduct) [in Minister for Immigration, Local Government & Ethnic Affairs v Ozmanian (1996) 71 FCR 1] and of the Full Court inexorably leads me to the conclusion in this matter that s.476(2) denies the Court jurisdiction to consider the conduct of Ms. Connelly in the way the applicants seek to in these applications.”
The wording of s.476 has again been amended as set out. Importantly, it refers not just to a decision of the Minister but to a privative clause decision or a purported privative clause decision, mentioned in ss.474(7), which includes a decision under s.417. The applicant argues that the phrase “purported privative clause decision” as defined in s.5E of the Act offers no more protection to a decision affected by jurisdictional error than the attempt to protect the decision reviewed by the High Court in S157. In other words, the court would be required to consider the decision made and to investigate whether or not it was made in jurisdictional error because in that case it would not be a privative clause decision and would therefore be susceptible to review. This is an interesting argument, but not one I think is valid. It does not proceed from an analysis of the jurisdiction given to the court. The scheme of s.476 is to give the Federal Magistrates Court a grant of jurisdiction subject to limitations. Chris Yuen says in his article “Judicial Review of Migration Decisions in the Federal Magistrates Court” NSW Law Society Journal April 2006 p 66:
“Clearly, under s.476, the FMC’s jurisdiction is not removed simply because a decision is a privative clause decision or a purported privative clause decision. The FMC does not have jurisdiction if a privative clause decision or a purported private clause decision also has some additional characteristics, such as being a “primary decision”.” (at p.68)
Another characteristic would be that the decision is a privative clause decision, or a purported privative clause decision mentioned in s.474(7).
As it is clear that the Parliament can give the Chapter III Courts, other than the High Court, such jurisdiction as it wishes, and limit that jurisdiction in any way it pleases, it does not seem to me that there is any invalidity in the limitation imposed by s.476(2)(b). None of the Second Reading Speech, Explanatory Memorandum to the Bill, or debates in the House reveal a different interpretation of this subclause or any indication of why the direct reference to a decision of the Minister was replaced by the words “a privative clause decision” or a “purported privative clause decision”. But this may well be because all involved thought it was quite obvious that if the High Court had held that a decision made in jurisdictional error is not a decision, then it would be dangerous to use the word “decision” on its own when attempting to limit jurisdiction. In fact, by designing the section in the way that it has been written, the drafters were endeavouring to ensure that the type of application currently before me should not be made, or if made should be rejected.
The Federal Magistrates Court, like all courts created under Chapter III, has the power to decide on its jurisdiction: Ah Yick v Lehmert (1905) 2 CLR 593 at 603-8, New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54 at 90. Having decided that I do not have jurisdiction it is not appropriate for me to consider the next part of the application for summary judgment. I am simply functus once I declare that I do not have jurisdiction over the proceeding.
I dismiss this substantive application and I order that the substantive applicant pay the Minister’s costs which I assess in the sum of $3,750.00.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: