Trinh v Minister for Immigration
[2007] FMCA 2115
•18 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRINH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2115 |
| MIGRATION – Review of a decision by an officer of the Minister’s Department not to refer to the Minister a request for his intervention under s.351 of the Migration Act 1958 (Cth) – the Court has no jurisdiction to review the decision. |
| Migration Act 1958 (Cth), ss.351, 417, 474, 476 |
| Applicant NAOB of 2002 v Minister for Immigration & Anor [2007] FMCA 1874 Ozmanian v Minister for Immigration (1996) 137 ALR 103 Raikua v Minister for Immigration (2007) 158 FCR 510 S1083/2003 v Minister for Immigration [2004] FCA 1455 SZFDZ v Minister for Immigration [2006] FMCA 717 SZFDZ v Minister for Immigration [2006] FCA 974 SZLJM v Minister for Immigration [2007] FMCA 1945 |
| Applicant: | VAN TUAN TRINH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MANAGER, MINISTERIAL INTERVENTION UNIT ACT AND REGIONS UNIT, DEPARTMENT OF IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 3656 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 18 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Ms D Watson Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3656 of 2007
| VAN TUAN TRINH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MANAGER, MINSITERIAL INTERVENTION UNIT ACT AND REGIONS UNIT, DEPARTMENT OF IMMIGRATION & CITIZENSHIP |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 27 November 2007 seeking review of a decision allegedly made under s.417 of the Migration Act1958 (Cth) (“the Migration Act”) to decline to refer to the Minister for his consideration a request for ministerial intervention. In fact the relevant section is s.351 of the Migration Act. Nothing in particular turns on that. In support of the application I have before me two affidavits by the applicant's solicitor, Raymond Charles Turner, evidencing the decision and prior events. Relevantly, those events are set out in paragraphs 1 to 4 of the applicant's submissions filed in Court earlier today, which I incorporate into this judgment as background:
On 10 May 2007, the applicant requested the Minister for Immigration and Citizenship to exercise his discretion under the Migration Act s.351.
On 23 October 2007, the applicant was advised that the Minister would not exercise his discretion.
On 12 November 2007, the applicant applied again to the Minister requesting the Minister to exercise his discretion and grant him a visa.
On 15 November 2007, the applicant was advised that his request had “not been referred to the Minister”.
The Migration Act relevantly provides as follows:
Section 351
(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 section 349 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
……
(3) The power under sub section (1) may only be exercised by the Minister personally.”
Section 474
(1) A privative clause decision:
(a) is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(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) A reference in this section to a decision includes a reference to the following:
(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4)For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
Decisions that are not privative clause decisions
Item Provision Subject matter of provision 1 Section 213 Liability for the costs of detention, removal or deportation 2 Section 217 Conveyance of removes 3 Section 218 Conveyance of deportees etc. 4 Section 222 Orders restraining non-citizens from disposing of property 5 Section 223 Valuables of detained non-citizens 6 Section 224 Dealing with seized valuables 7 Section 252 Searches of persons 8 Section 259 Detention of vessels for search 9 Section 260 Detention of vessels/dealing with detained vessels 10 Section 261 Disposal of certain vessels 11 Division 14 of Part 2 Recovery of costs 12 Section 269 Taking of securities 13 Section 272 Migrant centres 14 Section 273 Detention centres 15 Part 3 Migration agents registration scheme 16 Part 4 Court orders about reparation 17 Section 353A Directions by Principal Member 18 Section 354 Constitution of Migration Review Tribunal 19 Section 355 Reconstitution of Migration Review Tribunal 20 Section 355A Reconstitution of Migration Review Tribunal for efficient conduct of review 21 Section 356 Exercise of powers of Migration review Tribunal 22 Section 357 Presiding member 23 Division 7 of Part 5 Offences 24 Part 6 Establishment and membership of Migration Review Tribunal 25 Section 421 Constitution of Refugee Review Tribunal 26 Section 422 Reconstitution of Refugee Review Tribunal 27 Section 422A Reconstitution of Refugee Review Tribunal for efficient conduct of review 28 Division 6 of Part 7 Offences 29 Division 9 of Part 7 Establishment and membership of Refugee Review Tribunal 30 Division 10 of Part 7 Registry and officers
31 Regulation 5.35 Medical treatment of person in detention
(5)The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.
(6)A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non‑privative clause decision .
(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, 391, 417 or 454 or subsection 503A(3);
(b)a decision of the Principal Member of the Migration Review Tribunal or of the Principal Member of the Refugee Review Tribunal to refer a matter to the Administrative Appeals Tribunal;
(c)a decision of the President of the Administrative Appeals Tribunal to accept, or not to accept, the referral of a decision under section 382 or 444;
(d)a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.
Section 476
(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 section 500;
(c)a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;
(d)a privative clause decision or purported privative clause decision mentioned 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 section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 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 section 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.
The Minister seeks today the summary dismissal of the application on the basis that the Court lacks jurisdiction to entertain it. The Minister filed written submissions in support of that contention on 10 December 2007. I incorporate those submissions in this judgment:
The applicant seeks to challenge a decision identified in the application filed with the Court on 27 November 2007 as being a decision made on 15 November 2007. The decision is incorrectly described in the application as a decision made under s.417 of the Migration Act 1958 (“the Act”). The decision was, in fact, a decision made under s.351 of the Act, however, for the purposes of these submissions nothing turns on this point.
The first respondent has filed a response on 30 November 2007 opposing the application on the basis that the Federal Magistrates Court does not have jurisdiction to hear the matter.
The applicant complains that an officer of the Department advised the applicant, through his representative, that his request to the Minister to exercise his powers under 351 of the Act had not been referred to the Minister for consideration.
It is submitted by the first respondent that the applicant seeks to challenge a privative clause decision which is referred to in s.474(7)(a) of the Act, in that he seeks to challenge a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under s.351 of the Act.
Section 476(2)(d) of the Act provides that the Federal Magistrates Court does not have jurisdiction in relation to a privative clause decision or purported privative clause decision mentioned in s.474(7) of the Act.
Therefore, the first respondent submits that this Court does not have jurisdiction to determine the application.
It is submitted that this case is indistinguishable from the matter considered by Federal Magistrate Driver in SZFDZ v Minister for Immigration and Multicultural Affairs[1]. Federal Magistrate Driver’s judgment was the subject of an application for leave to appeal which was refused by Justice Moore[2]. In SZFDZ, Federal Magistrate Driver held that a refusal to refer a request to the Minister for the exercise of his powers under s.417 was caught by s.476(2)(d). On the application for leave to appeal, Justice Moore stated “It is not apparent to me that there was any error in the Federal Magistrate’s decision.”[3]
The first respondent notes that Raphael FM accepted that the Federal Magistrates Court did not have jurisdiction in Applicant NAOB of 2002 v MIAC and Anor [2007] FMCA 1874. The circumstances of that case were relevantly identical to the present case, although it concerned a request under s.417 of the Act.
Smith FM has also recently held that this court does not have jurisdiction in relation to a decision of an officer not to refer a request under s.417 to the Minister due to the operation of s.476(2)(d) in SZLJM v Minister for Immigration and Citizenship [2007] FMCA 1945.
Both Smith FM and Raphael FM relied upon the reasoning in S1083/2003 v Minister for Immigration and Multicultural and Indigenous Affairs[4] and Raikua v Minister for Immigration and Multicultural and Indigenous Affairs[5] both of which considered earlier but similar provisions to s.476(2)(d). In each of those cases it was held that the court did not have jurisdiction to hear the application.
The first respondent notes that the applicant places importance on the fact that the Minister did not personally consider the exercise of the power under s.351 which therefore takes the action outside of the exclusion from jurisdiction set out in s.474(7)(a). However, the cases cited above were all cases which had before them a refusal by a departmental officer to refer a request to the Minister. A similar argument was expressly rejected in Ozmanian v MILGEA 137 ALR 103. The effect of that decision in relation to this issue was relied upon by Moore J in S1083/2003 as well as Justice Lindgren who summarised the principles in Raikua at paragraph 42.
The first respondent therefore submits that the application should be dismissed on the basis that this Court does not have jurisdiction. The applicant should pay the first respondent’s costs.
[1] [2006] FMCA 717
[2] SZFDZ v MIMA [2006] FCA 974
[3] at p. 2
[4] [2004] FCA 1455
[5] 158 FCR 510
There is no doubt that the authorities available to me appear to raise insuperable obstacles in the way of the application. The applicant seeks to avoid those obstacles by distinguishing this case from the earlier authorities. The applicant also submits that this is a case of an officer of the Minister's Department clearly acting outside the letter and spirit of the ministerial guidelines relating to the exercise of the Minister's power of intervention and that the Court should intervene in order to ensure compliance with those guidelines.
There are a number of difficulties with those propositions. The first is that the facts evidenced by the documents attached to Mr Turner's affidavits establish that the departmental officer, the second respondent to this application, was purporting to exercise judgement consistently with the ministerial guidelines, in particular that part of the guidelines which directed that where a case had previously been brought to the attention of the Minister because of a request to exercise his public interest powers, he did not wish the fresh case to be brought to his attention again unless additional information was provided that in combination with the information named previously brings the case within the ministerial guidelines for consideration.
The applicant contends that there was additional information, namely, that a child had been born who was an Australian citizen. However, it is apparent from the material before me that the forthcoming birth of that child was previously brought to the Minister's attention and he decided not to exercise his powers. It is apparent that the second respondent concluded that the additional fact of the birth of that child in combination with the other material already known did not change the position. The applicant's challenge to that exercise of judgement by the second respondent appears to me to amount to a challenge to the exercise of the officer's discretion under the guidelines.
Secondly, I do not think this case can be distinguished from the authorities referred to in the Minister's submissions. In particular, the relevant authorities were dealt with by Smith FM in SZLJM v Minister for Immigration [2007] FMCA 1945 from paragraph 17 to paragraph 26 in circumstances that appear to me to be essentially the same as the present. I understand that the applicant in that case has sought leave to appeal to the Federal Court from his Honour's decision. Given that this case raises precisely the same issues and given the persuasive or binding character of the authorities referred to by Smith FM, it seems to me that the outcome in this case in this Court should be the same. Either the officer's decision not to refer the fresh request for ministerial intervention to the Minister was a decision falling within ss.474(7) and 476(2)(d) of the Migration Act, in which case the decision is expressly excluded from the jurisdiction of this Court, or it was not a decision for the purposes of the Migration Act at all and the source of the Court's jurisdiction to deal with it is unknown to me.
Further, even if the decision or action or inaction of the officer was amenable to review by this Court, I do not think that relief in the nature of mandamus could be granted which would have the effect of compelling what Parliament has expressly stated cannot be compelled, namely, the consideration by the Minister of the exercise of his powers under the section.
I conclude that the Court has no jurisdiction to deal with the application before it and accordingly I dismiss the application.
The application having been dismissed, costs should follow the event. Scale costs in this instance would be $2,500 but the Minister properly seeks the lesser amount of $2,200. The applicant does not contest the appropriateness of such an award.
I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $2,200.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 January 2008
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