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Can You Challenge Decision Not to Refer Request for Intervention to the Minister?

Here is an interesting, unique and novel question:

Suppose the Department’s staff declines to refer a request for Ministerial Intervention to the Minister for consideration.

Is it possible to seek judicial review in the Federal Circuit Court to get that decision overturned, and thus to compel the Department to bring the case before the Minister?

This question was considered in a case that was recently heard by Judge Street, Santos v Minister for Immigration & Anor (2017) FCCA 2276 (19 September 2017). (It should be noted that the “Or” (other) who was the second respondent in these proceedings was the Department’s National Director for Ministerial Intervention who had signed off on a “minute” stating that the case was one that under the guidelines for Ministerial Intervention, was not one that was considered to be appropriate for referral to the Minister).

The background of the case was as follows: The applicant had originally entered Australia on a student visa. She then applied for a Partner visa. Although she was granted a Provisional Partner visa (Subclass 820), her application for a Permanent Partner visa (Subclass 801) was refused, apparently on the basis that the relationship on which the application had been predicated had ended.

The request for Ministerial Intervention had apparently alleged that the applicant would suffer “personal devastation” if she were forced to leave Australia. The request also asserted that there were compassionate circumstances, consisting of the applicant’s new relationship with another person, and hardship to that new person.

However, the Department’s staff concluded that the claims made in the applicant’s request were not “unique or exceptional” and therefore did not meet the requirements of the Guidelines for referral to the Minister for consideration.

It was Judge Street’s analysis and conclusion that a decision by the Department not to refer a request for intervention to the Minister is not subject to judicial review, at least in circumstances where the Departmental officer who has made the decision not to refer is ”purportedly” acting “in good faith”.  

Judge Street also noted that it was not necessary, in the context of this particular case, for His Honour to decide whether judicial review would be available in circumstances where the officer making the decision not to refer the case to the Minister is not acting in good faith  (or, for example, “arbitrarily or capriciously”.

Judge Street’s decision leaves those issues “for another day” and for a future case.

It was Judge Street’s view in this case that a decision not to refer a matter for consideration by the Minister (at least when made “in good faith”) is a so-called “privative clause” decision by virtue of the operation of section 474(7)(a) of the Migration Act.   This section of the Act  includes what Judge Street described as a “carve out” which provides that decisions made by the Minister not to grant Ministerial Intervention are “privative clause” decisions  - and therefore, purportedly beyond the reach of judicial review.

However, I would suggest that this analysis may not be entirely correct. It is well established that simply because there is language in the Migration Act that declares a particular type of decision to be a “privative clause” decision, that wording is not by itself effective to immunize the decision from judicial review.  In other words, if a decision that is classified as a “privative clause” decision by wording in the Migration Act is affected by jurisdictional error,  then it remains subject to judicial review.

Indeed, it does appear that Judge Street’s decision in this case does leave open the possibility that a decision by the Department not to refer a request to the Minister, or even a decision by the Minister not to exercise the power to intervene, may well be subject to judicial review, again where the decision is affected by jurisdictional error by reason of having been made in bad faith, arbitrarily, capriciously, etc.

Given how rare it is for the Minister to exercise the power to intervene under section 351 of the Migration Act,  is it possible that we will see some more challenges to decisions not to intervene, or not to refer to the Minister for consideration?

We shall see!

It would also be interesting to know if Judge Street's decision in this case, which dismissed the application for judicial review, has been appealed to the Federal Court. Perhaps Solicitor Ray Turner, of Turner Coulson Immigration Lawyers, who acted for the applicant in this case, can let us all know, and perhaps share more information about this case!

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