SZLJM v Minister for Immigration - [2007] FMCA 1945

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLJM v MINISTER FOR IMMIGRATION

[2007] FMCA 1945

MIGRATION – Refusal to refer s.417 request to Minister – whether a ‘migration decision’ – whether excluded from jurisdiction of Federal Magistrates Court – no arguable case to show competence – application dismissed.

Acts Interpretation Act 1901 (Cth), s.34AB(c)
Federal Magistrates Act 1999 (Cth), ss.16, 18
Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.5(1), 5(1)(a), 5(1)(b), 5E, 417, 474(2), 474(3), 474(3)(h), 474(3)(i), 474(7), 476, 476(1), 476(2), 476(2)(d)

Abualbasal v Minister for Immigration & Anor [2007] FMCA 1316
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre & Anor (2006) 155 FCR 465
Fisher v Minister for Immigration & Citizenship [2007] FCA 591
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Griffith University v Tang (2005) 221 CLR 99
Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia & Ors (2003) 128 FCR 507
Raikua v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 158 FCR 510
S1083 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1455
SZFDZ v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 482, [2006] FCA 1366
SZFDZ v Minister for Immigration & Multicultural Affairs [2006] FCA 974
SZFDZ v Minister for Immigration [2006] FMCA 717
Vietnam Veterans’ Affairs Association of Australia New South Wales Branch v Cohen & Ors (1996) 70 FCR 419

Applicant:

SZLJM

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG2975 of 2007

Judgment of:

Smith FM

Hearing date:

13 November 2007

Delivered at:

Sydney

Delivered on:

13 November 2007

REPRESENTATION

Counsel for the Applicant:

Mr R Turner

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondent:

Ms D Watson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2975 of 2007

SZLJM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

(As Corrected)

The applicant has filed an application invoking this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision which is identified as being a decision evidenced by a letter to the applicant’s solicitors dated 3 September 2007. This letter is signed by a person who describes herself as holding a position in the “Ministerial Intervention Unit” of the Department of Immigration & Citizenship. It said:
I am writing further to the letter of 5 June 2007, which advised that when an examination of [the applicant’s] case was completed, you would be contacted. You requested that the Minister for Immigration and Citizenship, the Hon Kevin Andrews MP, exercise the public interest power under section 417 of the Migration Act 1958 (the Act) in [the applicant’s] case. Your letter has been referred to me for response.
As you may be aware, while section 417 of the Act provides the Minister with the power to substitute for a decision of the Refugee Review Tribunal a decision more favourable to the applicant, it is a non‑compellable power.
This case was previously brought to the attention of a Minister and was not considered. Cases previously brought to the attention of a Minister will not be considered unless additional information is provided that brings the case within the Guidelines and whereby it may be in the public interest to substitute a more favourable decision for that of a review authority.
This case has been reassessed in the light of your letter. The additional information provided, in combination with the information provided previously, does not bring the case within the Minister’s Guidelines. Therefore, no further action will be taken in respect of this request.
[The applicant] should contact the nearest Regional office of this Department to discuss his status in Australia.
The application to this Court contends that “the person who purported to make the decision did not have the authority or power to make the decision”. The particulars to that ground suggest that only the Minister can decide whether to exercise discretions under s.417, and not an officer of his Department, so that “the officer, therefore, lacked the authority or power to make the decision”.
The application seeks a declaration that the decision of the Minister dated 3 September 2007 is null and void and of no effect, a writ of certiorari to quash that decision, and a writ of mandamus directing the Minister to redetermine the matter according to law. It may be that other relief might be sought directed personally at the officer rather than the Minister. Indeed, the contention is that the officer acted without any statutory authority. I shall assume that such amendments might be sought.
The application was returnable before me at a first date on 16 October 2007. I made directions allowing the applicant to file an amended application and evidence, and listed the matter for today for a hearing under r.44.12 of the Federal Magistrates Court Rules 2001 (Cth). Discussion with the legal representatives on that occasion clearly identified a live issue, which was whether this Court had any jurisdiction to grant any relief in relation to the identified “decision”.
Rule 44.12(1)(a) allows the Court to dismiss an application “if it is not satisfied that the application has raised an arguable case for the relief claimed”. In my opinion, it is appropriate to exercise that power if it appears to the Court that the application is plainly beyond its jurisdictional competence. The power gives rise to an order which is interlocutory and not final, and therefore should be exercised only if the Court is confident that jurisdiction could not be established if the matter proceeded to a final hearing.
The applicant was today offered a final hearing in relation to the competence of the application, but declined that offer. The offer was declined on the basis that further evidence elucidating the conduct of the officer in the Department might have a bearing on the Court’s jurisdiction. The nature of the anticipated evidence was not explained. As I shall explain, I have concluded that whatever evidence might emerge if the matter proceeded, it could not assist the applicant to establish jurisdiction in this Court.
I have decided that the application is plainly incompetent. I am therefore not satisfied that it has raised an arguable case for the relief claimed. I consider that it is appropriate to dismiss the application summarily on an interlocutory basis. The present is a case, in my opinion, where interlocutory dismissal is appropriate, because argument has demonstrated “that the case of the plaintiff is so clearly untenable that it cannot possibly succeed”, at least in relation to the jurisdictional issues (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130).
The Court’s jurisdiction in relation to migration matters is a statutory jurisdiction, defined in s.476(1) of the Migration Act as “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”.
The concept of “migration decision” is defined in s.5(1) to include:
(a)a privative clause decision; or
(b)a purported privative clause decision”…
The former term is defined by reference to s.474(2): “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 …”.
Section 474(7) expressly includes as a privative clause decision: “a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under … section … 417 …”.
The references to a “decision” in both s.474(2) and (7), take an expanded meaning under s.474(3), so as to include under paragraph (h): “conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation”, and under paragraph (i): “a decision on review of a decision …”.
The reference in the definition of “migration decision” to a “purported privative clause decision” is, under s.5E, a reference to a privative clause decision, including any administrative action coming within the expanded meaning of “decision”, which:
would be a privative clause decision if there were not:
(a)a failure to exercise jurisdiction; or
(b)an excess of jurisdiction;
in the making of the decision.
In my opinion, the breadth of this definitional structure in relation to a “migration decision” encompasses a broad range of administrative actions taken, or proposed, or required to be taken, referable to a power conferred under the Migration Act, including decisions and actions taken or purported to be taken by a delegate on behalf of the Minister (see s.34AB(c) of the Acts Interpretation Act 1901 (Cth)) or by an agent of the Minister under the Carltona principle.
In the context of the above provisions, the administrative action evidenced by the officer’s letter set out above would appear to come within the reference in s.476(1) to a “migration decision”, as an action purported to be taken referrable to the Minister’s discretionary power under s.417 of the Migration Act to substitute a more favourable decision than that made by the Refugee Review Tribunal. Judicial review of that decision would, absent any exclusionary provision, come within the Court’s jurisdiction under s.476(1).
However, that jurisdiction is “subject to this section”. The section also contains special exclusions in s.476(2), including s.476(2)(d):
476(2)The Federal Magistrates Court has no jurisdiction in relation to the following decisions: …
(d)a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
As I have identified above, the decisions “mentioned in subsection 474(7)” include a decision, including in the extended meaning, made, or proposed, or required to be made, under s.417.
The apparent difficulty facing the present application therefore is that, if it is sought to be argued that the officer in the Department has engaged in conduct preparatory to the making of a decision under s.417, including by an unauthorised refusal to take an action required under that section, her conduct is a privative clause decision or a purported privative clause decision which is specifically excluded from this Court’s jurisdiction. If mandamus is sought to compel the Minister, his delegates or agents, to perform any duties said to arise under s.417, then jurisdiction to make those orders is also excluded by s.476(2)(d).
If, however, as it was submitted, the applicant wishes to prove that the officer acted without any reference to the Minister’s statutory obligations when declining to transmit the s.417 request to the Minister’s personal attention, then there has been no administrative action which can be described as having been made under the Migration Act, including through the extended provisions of s.474(3). Such action could not satisfy the concept of a decision “under an enactment” which has been adopted in the High Court in Griffith University v Tang (2005) 221 CLR 99 at [89]. The applicant could not establish any “migration decision” which this Court would have jurisdiction to address under s.476(1).
In short, in my opinion, the present application is caught on the horns of a dilemma. Whichever view of the character of the officer’s action is taken, the relief sought could not be related to a power of decision whose exercise is amenable to this Court’s jurisdiction. The grant of relief in relation to a refusal to take steps required by s.417 is precluded by s.476(2)(d). The grant of relief in relation to administrative action not referrable to s.417, is precluded by s.476(1) in the absence of any conceivable other source of statutory duties under the Migration Act. I therefore consider that there is no prospect of the applicant having even an arguable case to establish jurisdiction to give any form of relief relating to the officer’s letter.
It was not submitted for the applicant, and in my opinion could not be submitted, that even if the Department officer’s action was not referable to an exercise or purported exercise of power under s.417, this Court’s consequential declaratory jurisdiction under s.16 of the Federal Magistrates Act 1999 (Cth), or associated jurisdiction under s.18 of the Federal Magistrates Act could independently support the competence of the application. Such a submission would be contrary to authority (see Vietnam Veterans’ Affairs Association of Australia New South Wales Branch v Cohen & Ors (1996) 70 FCR 419 at 434, Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia & Ors (2003) 128 FCR 507 at [18] and [33], and Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre & Anor (2006) 155 FCR 465 at [54]).
My opinion that this Court lacks jurisdiction to give remedies against action taken relating to the Minister’s s.417 powers, has the support of authority binding upon me, and no authority to the contrary has been cited.
In Abualbasal v Minister for Immigration & Anor [2007] FMCA 1316, I addressed an application challenging a decision by the Minister not to consider an exercise of power under s.417. I concluded that the absence of this Court’s jurisdiction was so clear that I dismissed the matter at a first court date.
In SZFDZ v Minister for Immigration [2006] FMCA 717, Driver FM addressed a situation similar to the present, where an officer in the Immigration Department declined to forward a s.417 request. His Honour considered that there was no doubt that the Court lacked jurisdiction to entertain the application. His Honour’s decision was upheld by Moore J in SZFDZ v Minister for Immigration & Multicultural Affairs [2006] FCA 974, and in a subsequent decision Moore J ordered costs against an unqualified helper of the appellant (see SZFDZ v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 482, [2006] FCA 1366).
These cases arrive at the end of a long line of authority which has addressed previous jurisdictions of the Federal Court in relation to judicial review of decisions made by Ministers and their officers under s.417. The authorities were recently reviewed by Lindgren J in Raikua v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 158 FCR 510. It is unnecessary for me to repeat his Honour’s meticulous examination of the cases.
The previous authorities, in my opinion, are directly against the argument which was presented to me today, which was that the actions of the officer could be characterised as conduct preparatory to the making of a s.417 decision which was not encompassed by the provisions of s.474(7) read with s.474(3) (see in particular Raikua at [44] and [58], citing another decision of Moore J in S1083 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1455).
Lindgren J’s further analysis in relation to an action by an officer which could not be characterised as a decision of the Minister, was that the officer’s conduct would not be “susceptible to judicial review” because it was not something provided for by the Act, and did not affect legal rights (see [64] and [70]). As I have explained above, if that was the situation in the present case, then this Court’s statutory jurisdiction could not be invoked because there would be no “migration decision” as defined.
On any analysis of the situation and on any conceivable evidentiary basis, therefore, in my opinion the applicant has no arguable case for establishing jurisdiction in relation to the relief sought in this matter. Whether relief might be available from either the Federal Court or the High Court, is not something I need to decide. I also note that I was not asked to transfer the matter to the Federal Court on the basis that it had a broader jurisdiction than this Court (cf. Fisher v Minister for Immigration & Citizenship [2007] FCA 591).
If, as the applicant’s representative seemed to be submitting, the Constitutional jurisdiction in relation to the issue of a writ of prohibition against an officer of the Commonwealth would encompass actions by an officer of the Immigration Department which were not referrable to s.417 nor to any other section of the Migration Act, then that jurisdiction may have to be found in the High Court alone.
For the above reasons I propose to dismiss the application today under r.44.12(1)(a).

I certify that the preceding twenty‑nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 November 2007

CORRECTIONS

Paragraph 20 line 2 – for “officer’s Department” read “Department officer’s action”.
Paragraph 22 line 3 – insert “the absence of” after the word “that”.