Case: NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506
Outcome: applied
The Minister's relied on a series of decisions that have noted the broad discretion under ss 351 and 417: NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 199 ALR 290; SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No 4) [2004] FCA 104 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441. These decisions were apparently not drawn to the Magistrate's attention. 17 In NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506 at [58] a Full Court (Wilcox, Lindgren and Bennett JJ) said: "s 417 of the Act gives power to the Minister, where the Minister thinks it is in the public interest to do so, to substitute for a decision of the RRT another decision more favourable to an applicant, whether or not the RRT had the power to make that other decision. This is a general humanitarian power. The power would be available to the Minister where, for example, a person had a well-founded fear of loss of life or liberty, or of torture or other mistreatment, but for a reason which is not a Convention reason. Section 351 of the Act gives the Minister the same power in relation to decisions of the Migration Review Tribunal under Pt 5 of the Act." To the same effect is another Full Court's decision in M38 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 199 ALR 290 at [80] . See also Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191 at [6] the discretion may be exercised on "compassionate or humanitarian grounds". 22 The Magistrate's decision, if correct, would apply to s 417, and would confine the Minister acting under that section to what might be called refugee related matters relevant to visa applicants within the jurisdiction of the Refugee Review Tribunal. As NATB and 325/2002 show, that is not the case. 26 In my view the Magistrate drew too much from the existence of the two sets of provisions. The authorities on s 417 to which I have referred would have provided better guidance, especially given that the Full Court in NATB described s 351 as conferring "the same power" on the Minister in relation to decisions of the Migration Review Tribunal as that conferred on her by s 417 in relation to decisions of the Refugee Review Tribunal, namely a general humanitarian power. 27 In my view the Tribunal did not take into account an irrelevant consideration when it relied on the respondent's failure to mention his Falun Gong practices in his request under s 351 by reason of the fact that it was not a matter that could be taken into account by the Minister. 28 In what I have said thus far I have addressed the issue upon which the parties distinctly crossed swords: whether it was relevant to the Minister's consideration of the respondent's request under s 351 that he feared that if he were to return to China he would be harmed by reason of his practice of Falun Gong. In my view it was.