FEDERAL COURT OF AUSTRALIA

S1083/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1455

MIGRATION – first request to Minister to exercise power under s 417 of the Migration Act refused – second request to Minister under s 417 of the Migration Act – whether decision or conduct of departmental officer not to take further action with respect to second request to the Minister reviewable

PRACTICE AND PROCEDURE – jurisdiction of the Federal Court to review decision or conduct of a departmental officer under the Migration Act

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth)  s 39B

Migration Act 1958 (Cth)  ss 417, 476(2), 485(1)

Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673 cited

Minister for Immigration, Local Government and Ethnic Affairs v Ozmanian (1996) 71 FCR 1 discussed

Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 41 ALD 293; 137 ALR 103 discussed

S1083/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ORS

N 920 OF 2004

S1510/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ORS

N 1111 OF 2004

S428/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ORS

N 1112 OF 2004

MOORE J

11 NOVEMBER 2004

SYDNEY

THE COURT ORDERS IN PROCEEDING N 920 OF 2004 THAT:

1.                  The application be dismissed as incompetent.

2.                  The applicants pay the costs of the first and third respondents.

THE COURT ORDERS IN PROCEEDING N 1111 OF 2004 THAT:

1.                    The application be dismissed as incompetent.

2.                    The applicant pay the costs of the first and third respondents.

THE COURT ORDERS IN PROCEEDING N 1112 OF 2004 THAT:

1.                    The application be dismissed as incompetent.

2.                    The applicants pay the costs of the first and third respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This judgment deals with three applications under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") and the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act") concerning conduct or decisions under the Migration Act 1958 (Cth) ("the Migration Act").  Applicants S1083/2003, Applicant S1015/2003 and Applicants S428/2003 ("the applicants") sought the exercise of the Ministerial power under s 417 of the Migration Act to substitute a more favourable decision than decisions that had been made by the Refugee Review Tribunal ("the Tribunal") which had affirmed decisions of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") not to grant the applicants protection visas.  The applications seek constitutional writs or analogous orders in respect of what are said to be the decisions or conduct of the third respondent, Ms Joanne Connolly, Manager, Ministerial Interventions Unit Onshore Protection, New South Wales, Department of Immigration and Multicultural and Indigenous Affairs. 

2                     For reasons which I explain below, I accept a submission by counsel for the Minister that the Court does not have jurisdiction to hear and determine these applications.  However before turning to that issue, I should briefly explain the context in which the applications are made.  I will briefly refer to the circumstances of each applicant or group of applicants.

Applicants S1083/2003

3                     Applicants S1083/2003 lodged an application for protection visas on 22 July 1997 and, on 9 October 1997, a delegate of the Minister refused to grant the protection visas.  Applicants S1083/2003 sought review of that decision by the Tribunal.  The Tribunal affirmed the decision of the delegate of the Minister not to grant the protection visas on 1 August 2000. 

4                     On 4 September 2000, Applicants S1083/2003 requested the Minister substitute a more favourable decision for the decision of the Tribunal under s 417 of the Migration Act.  On 27 October 2000 the Minister either refused to consider exercising or refused to exercise his discretion under s 417.  The evidence is not clear as to precisely what the Minister had decided. 

5                     By letter dated 2 April 2004 addressed to the Minister, Applicants S1083/2003 made a second request to the Minister to substitute a more favourable decision for the decision of the Tribunal under s 417.  Without descending into detail, Applicants S1083/2003 claimed that circumstances had changed since the first request had been made in September 2000.  By letter dated 12 May 2004 from Ms Connolly, Applicants S1083/2003 were notified that no further action would be taken in respect of the applicants' further request for Ministerial review under s 417.  That letter relevantly states that:

This case has been assessed 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.

Applicant S1510/2003

6                     Applicant S1510/2003 lodged an application for a protection visa and on 3 April 1997 a delegate of the Minister refused to grant the visa.  Applicant S1510/2003 sought review of that decision by the Tribunal and in May 1998 the Tribunal affirmed the decision of the delegate of the Minister not to grant the protection visa.  The applicant requested the Minister substitute a more favourable decision for the decision of the Tribunal under s 417 of the Migration Act.  That request was refused. 

7                     On 18 March 2004, Applicant S1510/2003 made a second request for the Minister (again in a letter addressed to the Minister) to substitute a more favourable decision for the decision of the Tribunal under s 417 and, on 8 April 2004, the applicant forwarded additional information.  It was said circumstances had changed since the first request.  By letter dated 22 June 2004, Applicant S1510/2003 was notified that no further action would be taken in respect of the request for Ministerial review under s 417.  Again the letter was from Ms Connolly and contained a passage in the same terms as set out in [5] above.

Applicants S428/2003

8                     Applicants S428/2003 lodged an application for protection visas and a delegate of the Minister refused to grant the visas.  Applicants S428/2003 sought review of that decision.  On, it appears, 8 February 2001 the Tribunal affirmed the decision of the Minister to not grant the applicants protection visas.  On 22 February 2001 the applicants requested the Minister substitute a more favourable decision for the decision of the Tribunal under s 417 of the Migration Act.  That request was based on the adult male applicant's eligibility for a skilled based or employer nominated visa provided the applicant was not barred from making the application for those visas because of the refusal of his application for a protection visa.  That request was refused.

9                     On 26 February 2004, Applicants S428/2003 made a second request to the Minister to substitute a more favourable decision for the decision of the Tribunal under s 417 that was based on the impact removal would have on the children.  One hundred and nine pages of documents supported this request for Ministerial review.  By letter dated 12 June 2004 from Ms Connolly, Applicants S428/2003 were notified that no further action would be taken in relation to their request for Ministerial review under s 417.  That letter also contained a passage in the same terms as set out at [5] above.

10                  In relation to each of the second requests just discussed, it was not in issue that there had been no reconsideration of the request by the Minister and that the decision that no further action would be taken, had been a decision made by a Departmental officer (it appears Ms Connolly) having regard to guidelines promulgated by the Minister as well as Departmental guidelines.  It was also not in issue that in deciding that no further action would be taken, Ms Connolly was not exercising a power which the Minister had delegated under s 496 of the Migration Act.

11                  The following were the grounds relied on and the relief sought in the applications ("the Manager" is a reference to Ms Connolly).  The grounds in the amended applications were:

Under section 39B of the Judiciary Act

The applicants were denied natural justice and procedural fairness in connection with the application under section 417 of the Migration Act.

In the alternative – under the Administrative Decisions (Judicial Review) Act 1977

The conduct of the Manager in connection with applicants' application under section 417 of the Migration Act denied the applicants natural justice and procedural fairness.

The applicants sought the following orders:

1.      An order compelling the Manager to consider the applicants' request under section 417 of the Migration Act … in accordance with the Guidelines issued by the Minister and to bring the s 417 application to the attention of the Minister in order that the Minister can decide whether or not to consider exercising the Minister's power.

2.       An order prohibiting the Minister and the Secretary from acting upon or giving any further effect to the Manager's failure to bring the s.417 application to the attention of the Minister, and prohibiting the Minister and the Secretary from removing the applicants from Australia.

3.      An order compelling the Secretary to consider the s.417 application in accordance with the Minister's guidelines and to ensure that the Manger deals with the s.417 application in accordance with the Minister's guidelines.

The challenge to jurisdiction

12                  In each matter the respondents submitted the Court had no jurisdiction to hear and determine the applications.  The respondents’ challenge to the Court's jurisdiction was advanced on several bases.  It is necessary to discuss only one.  It is founded on s 476(2) which provides that:

Despite any other law (including section 483A, sections 39B and 44 of the Judiciary Act 1903,section 32AB of the Federal Court of Australia Act 1976 and section 39 of the Federal Magistrates Act 1999), the Federal Court and the Federal Magistrates Court do not have any jurisdiction in respect of 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, 345, 351, 391, 417 or 454 or subsection 503A(3).

13                  Section 417 is also relevant.  It provides that:

(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 415 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.

(2)       In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

(3)       The power under subsection (1) may only be exercised by the Minister personally.

(4)       If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that:

(a)       sets out the decision of the Tribunal; and

(b)       sets out the decision substituted by the Minister; and

(c)       sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

(5)       A statement made under subsection (4) is not to include:

(a)       the name of the applicant; or

(b)       any information that may identify the applicant; or

(c)       if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

(6)       A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

(a)       if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b)       if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

(7)       The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

14                  In a well constructed and thoughtful submission, counsel for the respondents argued that the actions of Ms Connolly constituted decisions of the Minister not to consider the exercise of the power under s 417 and were thus comprehended by s 476(2).  As part of this argument, it was submitted Ms Connolly's actions were those of the Minister because of the principle established in Carltona Ltd v Commissioners of Works and others [1943] 2 All E R 560.  Accordingly, s 476(2) operated to deprive the Court of any jurisdiction.  Neither counsel for the respondents nor counsel for the applicants referred to the judgment of Merkel J in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 41 ALD 293 and of the Full Court on appeal in Minister for Immigration, Local Government and Ethnic Affairs v Ozmanian (1996) 71 FCR 1 which together, in my opinion, provide a complete answer to the question concerning the Court's jurisdiction.

15                  The facts in Ozmanian were strikingly similar to the facts in this matter.  They were discussed by Merkel J at pp 108-111.  In summary, a Departmental officer concluded that a request for the exercise of power under s 417(1) should not be referred to the Minister as it did not fall within guidelines which might have resulted the exercise of the power in favour of the party making the request.  A senior Ministerial adviser signed a letter (saying that the adviser had been asked to reply on the Minister's behalf) indicating the request did not fall within applicable guidelines and had not been referred to the Minister for his consideration.  In fact, the Minister had not seen the letter and the adviser was acting in accordance with general procedures established in the Minister's office.  Section 417 was in the same terms as set out above.  At that time, the legislative scheme conferring jurisdiction on this Court was structured differently to that presently found in the Migration Act.  Nonetheless there was a similarity in the way in which the jurisdiction was limited.  One provision then limiting jurisdiction was s 475(2) which provided that certain decisions were not judicially reviewable decisions including (in s 475(1)(e)) "a decision of the Minister not to exercise, or not to consider the exercise of, his or her power under section …417".  Section 485(1) then provided:

In spite of any other law, including section 39 B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially reviewable decisions or decisions covered by subsection 475(2) other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

16                  In Ozmanian Merkel J concluded:

·        as a matter of fact, the Minister's senior adviser was authorised by the Minister to make and communicate decisions of the type made in that matter (at 117).

·        there were three categories of decisions under s 417, the third was a decision not to consider the exercise of the power (at 118).

·        a decision of the third category had to be made by the Minister and could not be made by a Departmental or Ministerial officer (at 121).

·        a decision of the third category made, in fact, by a Departmental or Ministerial officer could not be treated as a decision of the Minister by operation of the Carltona principle (at 121).

·        the Carltona principle had no application in a legislative context where the Minister had a general power (conferred by s 499) to delegate powers  including the power to decide not to consider the exercise of the power under s 417 (at 121).

·        even though the decision not to exercise the power under s 417 was not made by the Minister personally, it was nonetheless a decision "of the Minister" for the purposes of s 475(2)(e) (at 127).

·        the limit on jurisdiction created by s 485(1), denied the Court jurisdiction under s 5 of the AD(JR) Act in relation to the decision of the Minister (at 128).

·        the limit on jurisdiction created by s 485(1) did not deny the Court jurisdiction under s 6 of the AD(JR) Act in relation to conduct for the purposes of the Minister making a decision under s 417 (at 128)

17                  Given this last conclusion, Merkel J approached the matter on the basis he could grant relief under the AD(JR) Act because there had been a breach of the rules of natural justice by the Departmental officers when considering the request for the exercise of powers under s 417.  His Honour viewed consideration of the request as conduct for the purposes of s 6 of the AD(JR) Act.  His Honour decided to exercise the discretionary power to grant relief.  The Minister successfully appealed.  The leading judgment of the Full Court was given by Sackville J.  His Honour concluded (at 27) (Jenkinson and Kiefel JJ agreeing) that where a decision authorised by a s 417 has been made, s 485(1) should be construed as excluding the jurisdiction of the Court to review conduct engaged in for the purpose of making that decision.

18                  While the language of s 476(2), raised for consideration in the present case, is not precisely the same as the language formerly used in s 485(1), nonetheless the differences are immaterial for present purposes.  In my opinion, the reasoning of both Merkel J (save for his reasoning about review of conduct) and of the Full Court inexorably leads to the conclusion in this matter that s 476(2) denies the Court jurisdiction to consider the conduct of Ms Connolly in the way the applicants seek to in these applications.  I should note that the correctness of the conclusion of Merkel J that the Carltona principle had no application to a decision not to consider a request for the exercise of the power under s 417 was not determined by the Full Court.  Merkel J's reasoning on this question was adopted with approval by Wilcox J in Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673.  In that matter Wilcox J discussed at length the operation of the Carltona principle.  It appears the matter was settled before an appeal against Wilcox J’s judgment had been heard: see [1998] FCA 961.

19                  For the preceding reasons, the Court has no jurisdiction to hear and determine these applications.  They should be dismissed as incompetent.  The applicants should pay the respondent's costs.

Associate:

Dated:              11 November 2004