FEDERAL COURT OF AUSTRALIA

VYFT v Minister for Immigration and Citizenship [2009] FCA 937

VYFT v MINISTER FOR IMMIGRATION AND CITIZENSHIP

VID 402 of 2009

RYAN J

21 AUGUST 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The application for leave to appeal be refused.

2.         The applicant pay the respondent’s costs, to be taxed in default of agreement.

3.         The applicant be referred to in this proceeding and any subsequent proceedings by the pseudonym “VYFT”.

Note:      Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          Before the Court is an application for leave to appeal from an interlocutory order of the Federal Magistrates Court whereby the learned Federal Magistrate upheld an application for summary dismissal of the applicant’s proceeding.

2                          His Honour’s decision turned upon s 417 of the Migration Act 1958 (Cth) (“the Act”), which provides;

417      Minister may substitute more favourable decision

(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.

3                          It appears from the reasons for decision of the Federal Magistrate that the applicant’s primary contention below had been that guidelines published by the Minister for Immigration and Citizenship (“the Minister”), MSI 386 and 387 (“the guidelines”), were ultra vires because they provided that the Minister would only consider exercising the power conferred by s 417 in certain limited circumstances. In essence, the applicant complained that the guidelines had the effect that a request to the Minister for the exercise of the power conferred by s 417 would not be brought to his or her attention if the request did not, on its face, come within the guidelines.

4                          On behalf of the Minister, it was submitted in the Federal Magistrates Court that the guidelines were not inconsistent with s 417 and that, in any event, the power conferred by that section is non-compellable and any decision made in the exercise of that power is the subject of a privative clause.

5                          The Federal Magistrate’s decision, as appears from [16] of his reasons, was based on Lindgren J’s reasons in Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510. There, it was held to be open to the Minister to decide not to consider exercising the power conferred by s 417 where, in the opinion of the assessing officer, the criteria in the guidelines have not been met or where it is “apparent to” or is “found” by the relevant officer that the criteria are not met. Justice Lindgren pointed out, at 522, that;

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 [an administrative officer within the Department]. 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.

6                          In the same case, his Honour considered that there was no obligation on the relevant departmental officer to bring the request in question to the notice of the Minister. It was there observed, at 524, that;

… there is no obligation on Ms Connolly to bring the applicants' repeat request to the notice of the Minister. As discussed above, the Minister has decided not to exercise his s 417(1) power in cases in which, relevantly and in effect, Ms Connolly should be of a certain opinion, and he intended that she should not bring repeat requests to his attention in cases in which she should be of that opinion. In view of s 417(7), it was entirely a matter for the Minister whether to establish a regime that depended on the subjective opinion of Ms Connolly.

7                          In this Court, the basis upon which the applicant seeks leave to appeal is that;

The Magistrate made a mistake when he said that “the circumstances disclosed by this application seems to me to be on all fours with that confronting Lindgren J in Raikua”. What was confronting Lindgren J was “judicial review of a delegates decision not to refer her application to the Minister for consideration”. What I have asked for is that the guidelines made under section 417 of the Migration Act are Ultra Virus the powers contained in that section to the extent that they are not brought to the Minister’s attention. To me they are different issues and for the Magistrate to say that they are one and the same is a mistake.

8                          Guidelines as to the exercise of discretion, however, have a well-recognised place in administrative decision-making. In Bedlington v Chong (1998) 87 FCR 75, a Full Court of this Court remarked, at 80, that;

There is no reason why the Minister should not lay down guidelines for the assistance and guidance of departmental officers, such as the Secretary, indicating the circumstances in which he was prepared to consider the exercise of the power conferred by s 48B(1). That is what he did.

9                          The position is similar in this case. It has evidently been deemed expedient to set out in guidelines circumstances in which the Minister will consider exercising the power conferred by s 417. No doubt, this produces the result that many of the requests made of the Minister that he or she exercise the power are never referred to the Minister personally. However, in the absence of any evidence to rebut the presumption of regularity or any evidence of a lack of good faith in the relevant administrative officer, that does not of itself give rise to any reviewable error. I am therefore compelled to uphold the contention advanced on behalf of the Minister, that, in its terms, s 417 confers a non-compellable power, in the sense explained by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441, at 461 and 474.  In the first of those passages it was observed in the joint judgment of Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ that;

On the footing that prohibition or injunction and certiorari issue, directed to the Minister, the prosecutors seek mandamus requiring the Minister to reconsider the exercise of his power under s 417(1). However, s 417(7) states in terms that the Minister does not have a duty to consider whether to exercise the power conferred by s 417(1). That gives rise to a fatal conundrum. In the express absence of a duty, mandamus would not issue without an order that the earlier decision of the Minister be set aside. Further, in that regard, there would be no utility in granting relief to set aside that earlier decision where mandamus could not then issue. 

10                        The question which therefore confronts the Court now is whether leave ought be granted to appeal from what was, in form, an interlocutory judgment of the Court below. The facility to seek leave to appeal from an interlocutory order of the Federal Magistrate’s Court is recognised by s 24(1A) of the Federal Court of Australia Act 1976 (Cth), which is a conferral of an unfettered discretion (see SZLSI v Minister for Immigration and Citizenship [2008] FCA 1052, per Flick J).

11                        The approach to be taken to an application for leave to appeal from an interlocutory judgment is well known. It was identified in Jarrett v Seymour (1993) 46 FCR 557 which, in turn, is an endorsement of what was said in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.  In Jarratt, at 559, Lockhart and Beaumont JJ said;

The relevant considerations for the Court in considering whether leave to appeal should be granted are:

(a)       whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(b)       whether substantial injustice would result if leave were refused supposing the decision would be wrong.

12                        The degree of doubt contemplated by the test in Jarratt does not, in my view, attend the learned Magistrate’s reasons. His decision was based upon the reasons of Lindgren J in Raikua, a case in which his Honour very fully discussed and explained the operation of s 417, and, relevantly, rejected the construction of the section for which the applicant now contends – see, esp, at 523. In Raikua, Lindgren J, at 523, derived support from the reasoning of a Full Court of this Court in Bedlington v Chong (supra), and, since then, his Honour’s judgment has been described as “manifestly correct”:  SZLJM v Minister for Immigration and Citizenship [2008] FCA 300, per Flick J, at [9]. Accepting the correctness of the statements of principle in Raikua, therefore, it was for the applicant to point to some difference of fact or circumstance which rendered those principles inapplicable. He has failed to do so, either in the Magistrates’ Court or in this Court. It follows that, if this matter were to proceed to trial, the construction of s 417 for which the applicant contends would have to be rejected. For that reason, as I said, I am unable to hold that the requisite degree of doubt attends the Federal Magistrate’s decision.

13                        Because the test in Décor v Dart, approved in Jarratt, is cumulative, it is unnecessary, given my conclusion on the application of the first limb, to consider where any substantive injustice would result from refusal of leave to appeal. The application must therefore be refused with costs.

Associate:

Dated:         25th August 2009.