Trinh v Minister for Immigration - [2007] FMCA 2115

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

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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…

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 2115
Decision Date: 18 December 2007

CaseChat Overview and Summary

Van Tuan Trinh applied to the Federal Magistrates Court for review of a decision not to refer to the Minister for his consideration a request for ministerial intervention. The decision was made under s.351 of the Migration Act 1958 (Cth). The Minister for Immigration & Citizenship and the Manager, Ministerial Intervention Unit Act and Regions Unit, Department of Immigration & Citizenship were the respondents. The legal issue was whether the Federal Magistrates Court had jurisdiction to review the decision. The Minister argued that the Court lacked jurisdiction because the decision was a privative clause decision excluded by s.476(2)(d) of the Migration Act. The applicant contended that the decision should be reviewed because the officer of the Department acted outside the ministerial guidelines and contrary to the spirit of the Act. The Court found that the decision was excluded from its jurisdiction by s.476(2)(d) of the Act. The Court held that the decision was a privative clause decision of the Minister not to exercise his powers under s.351. The Court could not distinguish this case from earlier cases where the Court found it lacked jurisdiction. Even if the decision was amenable to review, the Court could not grant relief that would compel the Minister to exercise his powers. Therefore, the Court had no jurisdiction to review the decision and dismissed the application. The Court ordered the applicant to pay the Minister's costs of $2,200.

In summary, the key issues were whether the Court had jurisdiction to review the decision and whether the officer acted outside the ministerial guidelines. The Court found that the decision was a privative clause decision excluded from its jurisdiction. Even if review was possible, the Court could not compel the Minister to exercise his powers. Therefore, the Court had no jurisdiction and dismissed the application, ordering the applicant to pay the Minister's costs.

Orders