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 Santos  v Minister for Immigration & Anor [2017] FCCA 2276 (19 September 2017)

Last Updated: 9 October 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANTOS  v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2276

Applicant:

LARISSA FRANCA ALFAFIM  SANTOS

REPRESENTATION

ORDERS

(1) Grant leave to the applicant to file in Court the amended application joining the named second respondent.
(2) Direct that an electronic copy of the amended application be filed on or before 21 September 2017.
(3) The amended application is dismissed.
(4) The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

SYG 856 of 2017

LARISSA FRANCA ALFAFIM  SANTOS

Applicant

And

First Respondent

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ allegedly within this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), seeking mandamus to require the second respondent to refer the applicant’s application for the Minister to consider exercising the power under s.351 of the Migration Act to the Minister.
2. The applicant is a citizen of Brazil and arrived on 4 March 2010 on an Independent ELICOS Sector (subclass 570) visa. The applicant applied for a Partner (subclass 820/801) visa on 14 November 2013, granted on 18 November 2014. A Partner (Provisional) (subclass 820) visa was granted on 18 November 2014. On 15 January 2016, a Partner (Permanent) (subclass 801) visa was refused.
3. On 24 January 2017, the Tribunal affirmed that adverse decision by the delegate. On 17 February 2017, the applicant through her highly experienced and competent legal representative, made a request for the exercise of power under s.351 of the Migration Act by the Minister.

Before this Court

4. The grounds in the amended application are as follows:-
   • 1. The Second Respondent lacked the authority to make the decision.
   • 2. The Decision was based on an error in determining a jurisdiction fact
   • Particulars
   • a. The Second Respondent found
   • “The department has assessed that this request does not present the types of circumstances that may be referred to the Minister.”
   • b. The Minister for Immigration & Border Protection publishes Guidelines which indicate to the public and applicants that, if you meet one of those Guidelines relating to unique or exceptional circumstances, he will consider the exercise of his discretion under, inter alia, the Migration Act 1958 s.351
   • c. The Applicant met one of those Guidelines as requiring her to leave Australia would result in serious, ongoing and irreversible harm and continuous hardship to an Australian citizen.
   • d. The Second Respondent found that this jurisdictional fact did not exist.

Notification of Ministerial Intervention Request 8 March 2017

5. The amended application refers to the date of the notification of the Ministerial Intervention request outcome being 8 March 2017. That notification identified that the request had been assessed against the Minister’s Guidelines on ministerial powers. A reference was made to the Guidelines which indicate, that cases that have one or more unique or exceptional circumstances may be referred to the Minister and provide examples of the types of circumstances that may be referred.
6. The letter informed the applicant that the Department assessed that this request does not present the type of circumstances that may be referred to the Minister. The letter noted that the Department had assessed the request as not meeting the Minister’s Guidelines and that the request had accordingly been finalised by the Department without referral.

Minute dated 7 March 2017

7. The second respondent to the proceedings is the Director, Ministerial Intervention (National) who signed a minute of 7 March 2017 in respect of which a box had been ticked:
   • I agree with the assessment that circumstances of this case do not meet the Minister’s Guidelines for referral and that, in accordance with the Guidelines, the Department should finalise this request without referral. Notification is to be provided to the client/representative that the request is finalised without referral.
8. Whilst not a standard form, the next box that was not ticked and merely referred to:
   • Further information requested – please discuss.
9. The minute had been prepared by a case officer and was dated 27 February 2017. That minute summarised the applicant’s migration background and the request material, which identified the applicant having made a positive contribution to the Australian community whilst here in Australia. It also identified the applicant’s aspiration to study law in the future and to help those less fortunate. The minute also included material identifying a particular beneficiary of the applicant’s eleemosynary steps who asserted personal devastation if the applicant had to leave the country.
10. The minute identified circumstances relating to the second stage of the partner visa in June 2015 in which the Department received unfavourable information about the relationship break up with the sponsor. That information identified that the partner was in a same-sex relationship at the time of application. The Department wrote to the applicant inviting her to respond to the adverse information so an assessment could be made under PIC 4020. The applicant maintained the relationship had been genuine while it lasted and that the adverse information was intended to be a joke.
11. The minute also noted that compassionate circumstances affecting the applicant’s new relationship with another person, and hardship to an interested sponsor were also submitted. The minute noted that the partner visa was refused on the basis that the relationship had ended.
12. The minute noted that the applicant had completed two English language courses, a certificate III in business and a certificate IV in marketing, a diploma of management and advanced diploma of management and noted that she was currently working as a legal assistant and had previously worked as a sales assistant. The minute observed that the occupations are not listed in the skilled lists for the purpose of migration to Australia.
13. The minute noted, having assessed the request against the Minister’s Guidelines on ministerial powers under s.351 of the Migration Act, that the claims and circumstances presented in this request are not unique or exceptional when assessed against the Minister’s Guidelines. The minute observed the case is assessed as not meeting the Guidelines for referral to the Minister. I accept that if the assessment had been otherwise decided, it is apparent on the face of the document, that it would have been capable of having a different type of box and summarised decision for the director. There is nothing on the face of the decision to suggest that the second respondent acted otherwise than bona fide in the internal determination of whether to refer the request to the Minister.

Consideration of whether the Court has jurisdiction

14. This Court’s power conferred under s.476 of the Migration Act reflects a limited conferral of the High Court’s Constitutional jurisdiction under s.75(v) of the Commonwealth of Australia Constitution Act. Section 474(7) of the Migration Act expressly excises from this Court’s jurisdiction a decision of the Minister not to exercise or not to consider the exercise of the Minister’s powers relevantly under s.351 of the Migration Act. The jurisdiction under s.75(v) of the Commonwealth of Australia Constitution Act is conferred on this Court and is limited to circumstances where there is a migration decision the subject of jurisdictional error. The jurisdictional error may arise because of misconstruction of statutory provisions or a denial of procedural fairness and they include relief requiring the exercise of a power in respect of a migration decision within this Court’s jurisdiction.
15. The first issue that has arisen is whether this Court has jurisdiction in respect of the grounds raised in the present case. The decision not to refer the request under s.351 of the Migration Act is not itself a migration decision under the Migration Act. There is no exercise of statutory power undertaken by a Commonwealth officer. In respect of the noncompellable power of the Minister under s.351 of the Migration Act, it is the character of that non-compellable power under s.351 of the Migration Act that is of considerable importance in understanding whether or not this Court’s jurisdiction has been engaged assuming a jurisdictional error could be made out.
16. Mr Turner, the solicitor for the applicant, relied upon s.474(3)(h) of the Migration Act and in particular conduct preparatory to the making of a migration decision within the scope of the Court’s Guidelines. It is correct that a decision by the Minister under s.351 of the Migration Act is a migration decision. It is, however, a migration decision outside the scope of this Court’s jurisdiction because of s.474(7) of the Migration Act. Mr Turner identified that the scope of the carve out in s.474(7) of the Migration Act is addressed to the Minister and that in the present case the person in respect of whom relief is sought is the person who made the decision on 7 March 2017.
17. Mr Turner argued that the effect of the refusal to refer, had an impact on his client and should be regarded as preparatory to the making of a decision or an investigation falling within this Court’s power as the second respondent would otherwise, Mr Turner submitted, review must be available where a decision is made capriciously or arbitrarily. There is no suggestion in the present case that the decision was capricious or arbitrary. I accept the respondent’s submissions that the decision in the present case is not preparatory to a migration decision. Further, I accept that the carve out of s.531 of the Migration Act precludes this Court exercising jurisdiction even if it could be said that the Minute was preparatory to the making of a migration decision.
18. For the reasons already given it is apparent that the decision was made on the face of the material before the Court acting in good faith. Whether a Commonwealth officer purporting to act otherwise than in good faith gives rise to a matter within this Court’s jurisdiction in relation to s.351 of the Migration Act, is not necessary for this Court to determine. The present proceedings do not fall within that character.

Ground 2

19. Mr Turner argued that the criteria for the Guidelines and whether they were met was a jurisdictional fact and that the applicant’s circumstances were of a kind that should have engaged the Guidelines. That submission is wrong in relation to the characterisation of the Guidelines as being a matter involving the determination of any jurisdictional fact. The Guidelines are not founded upon any statutory power and are merely an administrative guide by the Minister in determining what matters might be referred to the Minister for consideration of the power relevantly under s.351 of the Migration Act which to be exercised by the Minister requires detailed steps to be taken involving the tabling of a particular statement in Parliament, if a favourable decision is to be made reversing a decision of the tribunal.
20. Mr Turner referred to the Guidelines and in particular Paragraph 4 and argued that the applicant’s circumstances engaged the type of consideration identified in Paragraph 4. The Guidelines also identified Ministerial intervention principles and that it is the general expectation that a person who has not been granted a visa through the statutory visa process will leave Australia. Whether or not the applicant had circumstances that could be characterised as unique or exceptional circumstances was not a matter conditioning the exercise of any statutory power and cannot be characterised as a jurisdictional fact. Mr Turner argued that there was nonetheless a power being exercised and an impact on the applicant in terms of the applicant’s bridging visa once a refusal to refer was communicated.
21. Parliament has identified that the power under s.351 of the Migration Act is a non-compellable power in respect of which the Minister does not have a duty to consider whether to exercise the power under s.351(1) of the Migration Act 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. That makes the power of the Minister under s.351 of the Migration Act of a unique kind and the step being taken in the minute and by the second respondent was a pre-preparatory step not within s.474(3)(h) of the Migration Act. This reasoning appears to be consistent with that adopted by the learned Pagone J in AOA16 v Minister for Immigration and Border Protection [2017] FCA 697. Mr Turner argued that the decision in that case and indeed the observations of the High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 were concerned with the character of a jurisdictional error in the nature of procedural fairness and did not extend to correct a misconstruction of the statutory power or an error in the nature of jurisdictional fact. For the reasons already given there is no error in the nature of jurisdictional fact in the present case, nor is there any basis to find that there was any misconstruction of the jurisdiction under s.351 of the Migration Act.
22. I accept the first respondent’s submission taking into account the observations made in particular by French CJ and Kiefel J in Plaintiff S10/2011 v Minister for Immigration and Citizenship and Anor [2012] HCA 31 at paragraphs [2]-[4] and [50]-[52] as well as Raikua v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 370 at [62]- [64], that the Departmental decision of whether to refer a s.351 request to the Minister is not a reviewable decision and is not of a kind falling within s.474(3)(h) of the Migration Act and does not engage the jurisdiction of this Court. Even had this Court’s jurisdiction been engaged, for the reasons I have given, the allegation of jurisdictional error in ground 2 is not made out.

Ground 1

23. In relation to ground 1 Mr Turner argued alternatively that there was no statutory source for the authority of the decision maker of the minute, being the decision maker as the person who is joined as the second respondent or the person who signed the recommendation adopted by the second respondent. It is the absence of statutory power being exercised in respect of this non-compellable power that is the reason why this Court does not have jurisdiction. There is no suggestion that the persons who signed the minute did not hold the relevant office or were not acting bone fide.
24. The fact that the refusal to refer has an impact on the applicant’s bridging visa does not give rise to the refusal to refer enlivening this Court’s jurisdiction. Because of the particular character of the statutory power of s.351 of the Migration Act as a non-compellable power, the applicant does not have a right, interest or legitimate expectation that engages this Court’s jurisdiction in the circumstance of the present case. For these reasons, I hold that the Court has no jurisdiction, and even if the Court did have jurisdiction no jurisdictional error was made out.
25. Accordingly the amended application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 October 2017