Case: Raikua v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2007] FCA 370 , 158 FCR 510
Outcome: cited
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 &amp; Multicultural &amp; 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. 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.