SZLPS v Minister for Immigration

[2007] FMCA 2146

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLPS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2146

MIGRATION – Refusal to forward second s.417 request to the Minister – whether involved a decision under the Migration Act – jurisdiction of Federal Magistrates Court to grant relief – no arguable case to show jurisdiction – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.417, 474(2), 476, 476(1), 476(2)(d)

Raikua v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 158 FCR 510
SZFDZ v MIMA [2007] HCATrans 759
SZFDZ v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 482, [2006] FCA 1366
SZFDZ v Minister for Immigration & Multicultural Affairs [2006] FCA 974
SZLJM v Minister for Immigration & Anor [2007] FMCA 1945

Applicant: SZLPS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: AMANDA WALTON

File Number: SYG 3480 of 2007

Judgment of: Smith FM

Hearing date: 19 December 2007

Delivered at: Sydney

Delivered on: 19 December 2007

REPRESENTATION

Counsel for the Applicant: Mr R Turner

Solicitors for the Applicant: Parish Patience Immigration

Counsel for the First Respondent: Ms K Hooper

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. 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. 

2. The applicant must pay the respondents’ costs in the sum of $2,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3480 of 2007

SZLPS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

AMANDA WALTON

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application seeking to invoke this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), in respect of an administrative action evidenced by a letter from an officer of the “Ministerial Intervention Unit Onshore Protection NSW” in the Department of Immigration and Citizenship dated 25 September 2007.  The letter states: 

   I am writing further to the letter 20 August 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 Sydney office of this Department at 26 Lee Street Sydney to discuss his status in Australia. 

2. Evidence in support of the application, including evidence which is sought to be elicited by way of a notice to produce, addresses whether the officer was acting in conformity with administrative guidelines issued within the Department. These contain the Minister’s directions to officers of his Department in relation to handling s.417 requests and repeat requests.

3. The application before the Court is, in my opinion, indistinguishable from an application which I considered recently in SZLJM v Minister for Immigration & Anor [2007] FMCA 1945, in which the applicant was represented by the same solicitor who now represents the present applicant. In that judgment I canvassed the relevant issues of jurisdiction, on factual assumptions favouring the arguments presented by the applicant, and reached a firm conclusion that the application was incompetent, and that there was no prospect at a final hearing of the applicant establishing competence. I therefore dismissed the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

4. The present applicant’s solicitor has sought to persuade me that there are factual distinctions between the present case and SZLJM, but I am unable to identify them. 

5. He also sought to persuade me to reconsider the opinions I expressed in SZLJM.  He submitted that I was in error in thinking that Raikua v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 158 FCR 510 was relevantly indistinguishable on its relevant facts. I do not accept that submission. It is clear from [13] of Lindgren J’s judgment that the administrative action which his Honour was addressing in Raikua was of the same nature as the administrative action in the present matter. 

6. The applicant’s solicitor argues that the administrative action of the officer would fall within this Court’s jurisdiction, because it concerns a decision made under guidelines referable to s.417 of the Migration Act. However, this is an argument which I addressed in SZLJM.  It does not answer the dilemma which I identified in that case in relation to this Court’s jurisdiction over the matter. 

7. As I explained, any entitlement to relief in relation to the action of the officer by way of certiorari to quash her decision, or by way of mandamus requiring the forwarding of the request for personal consideration by the Minister, must identify the officer’s actions, or the required actions, as being taken or required under authority or duties implicit in s.417 ‑ in which case this Court’s jurisdiction would be excluded by s.476(2)(d).

8. Alternatively, it would have to establish that the officer’s purported actions or the required actions were not taken, or purported to be taken, or required to be taken, under the Migration Act ‑ in which case this Court’s jurisdiction could not be invoked, since it is confined by s.476(1) to “migration decisions” as defined in the manner I described in SZLJM. The definitions invoked by that term include a requirement that there be identified a decision as broadly defined in s.474(2), “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 …”. 

9. There has been no argument presented to me, and I can see no reasonable argument, which would convert the Minister’s administrative guidelines about Departmental procedures into instruments made under the Migration Act which confer powers or duties to take actions which confer, alter or otherwise affect legal rights or obligations.

10. On any of the above bases, the action of the officer which is challenged in this proceeding, and the relief sought in relation to that action, would not concern a reviewable migration decision. 

11. Insofar as the relief sought by the applicant also includes a writ of mandamus directed to the Minister and to the officer to perform actions required by s.417, or arising under s.417, or authorised by s.417, the giving of that relief is manifestly excluded from this Court’s jurisdiction by s.476(1) and by s.476(2)(d).

12. I am not persuaded that my decision in SZLJM should not be followed and applied in the circumstances of the present case.  As in that case, the applicant has been given the fullest opportunity to present arguments to show an arguable case for establishing jurisdiction at a final hearing.  I note that since my decision in SZLJM, the judgment of Moore J in SZFDZ v Minister for Immigration & Multicultural Affairs (2006) 155 FCR 482, [2006] FCA 1366 and SZFDZ v Minister for Immigration & Multicultural Affairs [2006] FCA 974, which upheld a similar conclusion by Driver FM, was the subject of a special leave application which was refused by the High Court on 11 December 2007 (see SZFDZ v MIMA [2007] HCATrans 759).

13. For the above reasons I am not satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  14 January 2008