FEDERAL COURT OF AUSTRALIA

SZLJM v Minister for Immigration & Citizenship [2008] FCA 300

MIGRATION – application for Ministerial intervention – unreviewability of decision not to refer application to Minister – application for leave to appeal refused

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Migration Act 1958 (Cth), ss 417, 474, 476

Raikua v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 370, 158 FCR 510 cited

SZFDZ v Minister for Immigration & Multicultural Affairs [2006] FCA 974 followed

SZFDZ v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 759 cited

Trinh v Minister for Immigration & Citizenship [2008] FCA 299 cited

SZLJM v MINISTER FOR IMMIGRATION & CITIZENSHIP

NSD 2381 OF 2007

FLICK J

7 MARCH 2008

SYDNEY

THE COURT ORDERS THAT:

1.    The Application for Leave to Appeal be refused.

2.    The Applicant to pay the costs of the First Respondent in the sum of $1,800.

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

REASONS FOR JUDGMENT

1                     This is an Application for Leave to Appeal against a decision given by the Federal Magistrates Court on 13 November 2007: SZLJM v Minister for Immigration & Citizenship [2007] FMCA 1945.

2                     The Applicant in the proceedings before the Federal Magistrate sought to review a decision evidenced by a letter to the Applicant’s solicitors dated 3 September 2007. That letter stated as follows:

Dear Mr Bitel

I am writing further to the letter of 5 June 2007, which advised that when an examination of Mr Danylo Biryukov’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 Mr Biryukov’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.

Mr Biryukov should contact the nearest Regional office of this Department to discuss his status in Australia.

Yours sincerely

The letter is signed by a person who describes herself as holding a position in the “Ministerial Intervention Unit” of the Department of Immigration & Citizenship.

3                     The learned Magistrate dismissed the application under Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Such a decision is an interlocutory decision requiring the grant of leave to appeal to this Court: Federal Court of Australia Act 1976 (Cth), s 24(1A). It is considered that leave should be refused.

4                     The Magistrate reviewed the limited facts before him and relevantly concluded:

[19] 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.

5                     Concurrence is expressed with that conclusion and with the Magistrate’s reasons.

6                     The Magistrate has referred to what his Honour described as “a long line of authority” addressing the jurisdiction to undertake the review then being urged upon that Court and correctly concluded that “the applicant has no arguable case for establishing jurisdiction in relation to the relief sought in this matter”.  Included among those authorities was the review of the authorities undertaken by Lindgren J in Raikua v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 370, 158 FCR 510.

7                     In Raikua,review was sought of both the failure of the Minister to exercise the power conferred by s 417 of the Migration Act 1958 (Cth) and the decision of the Manager of the Ministerial Interventions Unit (Ms Connolly) not to bring Ms Raikua’s subsequent s 417 application to the attention of the Minister. Ms Connolly had made that decision because she had formed the view that the subsequent application fell within Guidelines which had been issued in respect to the exercise of the power. Lindgren J analysed the position as follows:

[62] The Minister could have decided not to consider any requests for the exercise of his power under s 417(1) for a specified period of time, and that decision would not have been subject to review. In the present case, his decision not to consider exercising that power was of a more limited kind. It is plain that the Minister’s intention, as expressed in his note of 14 August 2003 relating specifically to this case, and in paras 6.5.7 and 6.5.11 of Guidelines MSI 387, was to decide not to consider exercising the power in the case of any request where the criteria of ‘unique or exceptional circumstances’ were not met ‘in the opinion of the assessing officer’ (his note of 14 August 2003) or where it ‘appears’ or is ‘found’ (to or by the relevant officer) (respectively Guidelines MSI 387 paras 6.5.7 and 6.5.11) that they are not met.

[63] The Minister’s decision not to consider exercising his power under s 417(1) in the particular case of the applicants comprises his decision just referred to operating upon the subjective judgment formed by Ms Connolly. There is no suggestion in the evidence that the Minister intended anything other than that provided the officer in good faith formed the view that the ‘unique or ‘exceptional circumstances’ criterion was not met, the Minister did not wish to consider exercising his s 417(1) power. The applicants do not suggest that Ms Connolly did not act in good faith.

[64] Ms Connolly’s decision is not something provided for by the Act, and does not itself affect legal rights; cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335–338. The decision of Ms Connolly is not susceptible to judicial review. The only decision that might conceivably be susceptible to judicial review is that of the Minister. However, it was permissible for the Minister take the decision not to consider exercising his power under s 417(1) by laying down guidelines as to the classes of case that were not to be referred to him (Bedlington v Chong (1998) 87 FCR 75…), and because of s 417(7), the jurisdiction-denying provisions, whether found in the former s 476(2) or in the present ss 474(1), (2) and (7), 476(2) and 476A(1)(a), cannot be avoided in relation to the Minister’s decision by resort to the notion of jurisdictional error.

8                     Lacking in substance is an attempt to draw a distinction founded upon a factual contention that in the circumstances of the present case a Departmental officer intervened to “prohibit the possible exercise of the power by the Minister”. In SZFDZ v Minister for Immigration & Multicultural Affairs [2006] FCA 974 Moore J concluded that a like application for leave should be refused and reached that conclusion “regardless of whether the request was forwarded to the Minister”. His Honour observed:

[7] The Minister submitted that the application for leave to appeal should be dismissed with costs because there were no reasonable prospects of success. First, the Federal Magistrate was clearly correct in concluding that there was no jurisdiction to review the Minister's decision for the reasons accepted by the Federal Magistrate. This was so regardless of whether the request was referred to the Minister for her personal consideration, and regardless of whether the delegate's decision was affected by jurisdictional error, notwithstanding there was no evidence at all to support such an assertion. Secondly, as was clear from s 417(7) of the Act, the Minister had no duty to consider the power under s 417, and therefore relief could not have been granted in the Court below even if there had been jurisdiction to consider the application.

An application for special leave to appeal from His Honour’s decision has been dismissed: SZFDZ v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 759.

9                     There is considered to be no relevant distinction between the facts of the present case and the facts before Lindgren J. No reason has been shown to reach any different conclusion to that reached by His Honour.  His Honour’s conclusion, with respect, is considered to be manifestly correct.

10                  Nothing is gained by a further review of either the provisions of ss 417, 474 or 476 of the Migration Act 1958 (Cth) or the authorities.

11                  The present Application, it may be noted, was heard concurrently with another Application for Leave to Appeal involving s 351 of the 1958 Act. Leave was also refused in the proceedings concerning that other Application: Trinh v Minister for Immigration & Citizenship [2008] FCA 299.

12                  Leave should be refused as the Application has no prospects of success.

13                  An Affidavit has been filed by the Respondent Minister estimating its costs on a party-party basis to be $1,800.  In the event that the Application was refused, Counsel for the Applicant neither opposed the making of an order for costs nor an order in the sum estimated.

Orders

14                  The orders of the Court are:

1.    The Application for Leave to Appeal be refused.

2.    The Applicant to pay the costs of the First Respondent in the sum of $1,800.

Associate:

Dated:         7 March 2008