STJB v Minister for Immigration - [2007] FMCA 716

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STJB & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 716

MIGRATION – Application under s.476 of the Migration Act 1958 for declarations and injunctions – Minister declines to exercise power pursuant to s.417 of the Migration Act 1958 – applicant contends decision can be attacked collaterally pursuant to s.198(6) of the Migration Act 1958 – Court has no jurisdiction to determine the application.

Migration Act 1958, ss.5E, 198, 417, 474 and 476
Australian Constitution, s.75(iv)

Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14
SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No.4) [2004] FCA 104
Beyazkilinc v The Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368
Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642

O’Grady v Northern Queensland Co. Ltd (1990) 169 CLR 356

First Applicant:

STJB

Second Applicant:

SBDF

Third Applicant:

SBBF

Fourth Applicant:

SBCF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG186 of 2006

Judgment of:

Lindsay FM

Hearing date:

24 November 2006

Date of Last Submission:

24 November 2006

Delivered at:

Adelaide

Delivered on:

16 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr Ower

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondents:

Mr Roder

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Amended Application filed on 20 November 2006 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG186 of 2006

STJB

First Applicant

SBDF

Second Applicant

SBBF

Third Applicant

SBCF

Fourth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application under s.476 of the Migration Act 1958 (Cth) (hereinafter “the Act”) for declarations and injunctions. Pursuant to s.476(1) the Federal Magistrates Court has the same original jurisdiction in relation to Migration decisions as the High Court has under paragraph 75(iv) of the Constitution.
The applicants sought a protection visa when they arrived in Australia in July 2000 and October 2000 respectively. In October 2001 a delegate of the Minister refused to grant the protection visa.
A review of that decision before the Refugee Review Tribunal was unsuccessful. That was in October 2003.
An application for judicial review of that decision in the Federal Court was refused by Selway J in July 2004.
An appeal to a Full Court of the Federal Court was rejected by that Court in February 2005.
An application for special leave to appeal was refused by the High Court in December 2005.
On 11 January 2006 the applicants’ solicitor wrote to the Minister asking her to exercise her discretion under s.417 of the Act in their favour.
Section 417(1) of the Act provides:
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…

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: [2007] FMCA 716
Decision Date: 16 May 2007

CaseChat Overview and Summary

In the case of STJB v Minister for Immigration, the applicants sought judicial review of a decision made under the Migration Act 1958 (Cth). The dispute centred around the interpretation and application of the privative clauses in the Act, particularly section 474, which restricts the court's jurisdiction to review certain decisions made by the Minister for Immigration. The applicants argued that the Minister had not made a decision under section 417, which they claimed was a necessary precondition to their removal from Australia. They sought to challenge the legality of the Minister's decision, arguing that a failure to make a decision constituted a jurisdictional error.

The central legal issue before the court was the interpretation of section 476(2) of the Act, which specifies that the court has "no jurisdiction in relation to" decisions made under certain sections, including section 417. The applicants contended that this meant the court had jurisdiction to review whether a decision had been made, but not the merits of the decision itself. The secondary issue was whether the Minister's decision could be subject to a collateral challenge, despite the privative clause. The applicants relied on a previous case, SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No.4), where the court had held that the existence of the power under section 417 did not constitute a form of review.

The court dismissed the applicants' arguments, holding that the privative clause in section 474 of the Act effectively barred judicial review of decisions made under section 417. The court found that the applicants' attempt to challenge the legality of the Minister's decision was precluded by the plain language of the privative clause. It also distinguished the previous case on the basis that in the earlier case, the Minister had not actually made a decision under section 417, whereas in this case, the Minister had indeed made such a decision.

ORDERS:
1. The Amended Application filed on 20 November 2006 is dismissed.

Orders

Orders of the court

The Amended Application filed on 20 November 2006 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 474 of the Act provides:(1) A privative clause decision:(a) is final and conclusive;(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court;(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.(2) In this section:“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).(3) …(4) …(5) …(6) …(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):(a) a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 351, 417 or 454 or subsection 503A(3);(b) …(c) …(d) …. A purported privative clause decision is defined in section 5E(1) of the Act as follows: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 a privative clause decision if there was not:(a) a failure to exercise jurisdiction; or(b) an excess of jurisdiction,in the making of the decision. The effect of all of these provisions is that this Court does not have the power to review a decision made under s.417 of the Act. So much is conceded by the applicants in so far as granting a remedy directly against such a decision is concerned. Nothing said by the High Court in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 has any bearing on the powers of this Court pursuant to s.476 of the Act (see footnote 5 to that judgment). Once the High Court declined to grant special leave (see paragraph 6 hereof) the applicants were liable to be removed from Australia pursuant to s.198(6) of the Act. The applicants say that a necessary pre-condition to the removal of them under s.198(6) has not been fulfilled. They say that no decision (ie. no decision not affected by jurisdictional error) has been made under s.417. So we are back to where we left off. This apparent circularity is said to be an instance of a collateral challenge to the exercise of power under s.417. The principal issue is in simple terms what does s.476(2) mean, when it says that this Court has “no jurisdiction in relation to” such a decision? A secondary issue is that raised by the decision of Mansfield J in SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No.4) [2004] FCA 104. In that case His Honour considered the meaning of “finally determined” in s.198(6) in the context of an application to the Minister under s.417. He found that the existence of the power under s.417 did not constitute a form of review. A contention based on the visa application not being “finally determined” was rejected as not reasonably arguable. The applicants say that such decision can be distinguished in that the Minister in the case determined by Mansfield J had not actually made a decision under s.417, which is of course not the case here.

Ratio Decidendi

Legal Principle Established

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