Case: Bedlington v Chong (1998) 87 FCR 75
Outcome: followed
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] HCA 33 ; (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, discussed further below), 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. 65 In Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059 , Katz J noted that Merkel J's conclusion in Ozmanian FCA that s 417 required the Minister personally to decide not to consider exercising the power under s 417(1) was rejected by the Full Court in Bedlington v Chong . (I think it plain that his Honour was directing his attention to the question of a decision not to exercise the power in the individual case.) Katz J added (at [31]): 'However, the rejection of Merkel J's conclusion on that matter appears, if anything, to make his conclusion about the unreviewability of the Departmental officer's decision by reason of the combined effect of para 475(2)(e) of the Act and subs 485(1) of the Act easier to accept.' 66 Katz J said that he found nothing in the reasons for judgment of the Full Court in either Ozmanian FCAFC or Bedlington v Chong that caused him to doubt correctness of the reasoning of Merkel J in Ozmanian FCA on the particular question of the combined effect of para 475(2)(e) of the Act and subs 485(1) of the Act. Katz J accepted the correctness of that reasoning and applied it to the decision said to have been made by Mr Fontana, who occupied a position in the Ministerial Interventions Unit, perhaps that occupied by Ms Connolly in the present case. 67 An alternative basis on which the respondents contend that the proceeding must fail is that the applicants cannot obtain the relief they seek. The foundation of this submission is that s 417 does not contain any provision for the making of a request or application to the Minister that would trigger a legal obligation on anyone to consider it. 68 I accept the respondents' submission that if Merkel J in Ozmanian FCA , intended to suggest that the Minister was under a duty to decide whether to consider each individual request for the exercise of the s 417(1) power, that suggestion cannot stand with the reasoning of the Full Court in Bedlington v Chong (which concerned the then s 48B of the Act, a comparable provision to s 417). A Full Court of the Federal Court there held that it was within the competence of the Minister to lay down guidelines for determining whether any request for the exercise of the power conferred by s 48B(1) should be referred to him. The Court held that such guidelines constitute a determination by the Minister, in advance, of the circumstances in which he will consider exercising the power (at 80). 69 Their Honours said (at 80 81) that so long as the Secretary was acting within the guidelines, she had no duty to refer a request to the Minister. Their Honours added that, in saying this, they should not be understood as indicating that even if the Secretary did not act in accordance with guidelines, Ms Chong would be entitled to any relief a matter that was not before their Honours. They added that in so far as Ms Chong's application for relief was based solely on the Secretary's failure to bring her application to the Minister's attention, or on any failure of the Minister to consider her application, it must be dismissed. 70 In their submissions, the applicants attack Ms Connolly's decision not to bring their request to the Minister's attention, relying on jurisdictional error. They rely on various grounds of such error, including a failure to adhere to the Guidelines by not paying due regard to the position of the children, a failure to take into account relevant considerations and a failure to accord procedural fairness. But for reasons previously given, in my opinion, the decision of Ms Connolly is not subject to judicial review, even if such grounds exist. 71 Proposed Order 1 is not available to the applicants. As noted above at [64], the Act did not empower Ms Connolly to make decisions, and the decision that she did make did not affect legal rights. 72 Proposed Order 2 is not available to the applicants because they do not have visas permitting them to remain in Australia that the Minister and the Secretary are threatening to disregard by removing them from Australia. 73 Proposed Order 3 is not available to the applicants because the Minister has decided not to exercise his s 417(1) power, according to a r&eacute;gime that is permissible: see Bedlington v Chong , above [68]. 74 Proposed Order 4 is not available to the applicants because 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 r&eacute;gime that depended on the subjective opinion of Ms Connolly. 75 For the reasons given above, the application should be dismissed with costs. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 16 March 2007 Counsel for the Applicants: Mr R Nair Solicitor for the Applicants: Allens Arthur Robinson Counsel for the Respondents: Mr GR Kennett Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 15 August 2006 Date of Judgment: 16 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/370.html