Jabbour v Secretary, Department of Home Affairs

• Jurisdiction: Australia Federal only
• Judge: ROBERTSON J
• Judgment Date: 03 April 2019
• Neutral Citation: [2019] FCA 452
• Court: Federal Court
• Date: 03 April 2019

FEDERAL COURT OF AUSTRALIA

Jabbour v Secretary, Department of Home Affairs [2019] FCA 452

File number:	NSD 1500 of 2018
Judge:	ROBERTSON J
Date of judgment:	3 April 2019
Catchwords:	MIGRATION – statutory power vested in Minister, acting personally, to substitute more favourable decision if the Minister thinks that it is in the public interest to do so – non-statutory guidelines issued by Minister on those ministerial intervention powers – whether action by officer of the Department that a repeat request not be referred to the Minister is judicially reviewable for legal unreasonableness – if so, whether action legally unreasonable
Legislation:	Migration Act 1958 (Cth) s 351
Cases cited:	Apthorpe v Repatriation Commission [1987] FCA 423; 77 ALR 42 Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 Aye v Minister for Immigration and Citizenship [2010] FCAFC 69; 187 FCR 449 Blyth District Hospital Inc v South Australian Health Commission (1988) 49 SASR 501 Broadbridge v Stammers (1987) 16 FCR 296 Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 L v State of South Australia [2017] SASCFC 133; 129 SASR 180 M v Home Offıce [1994] 1 AC 377 Marks v The Commonwealth (1964) 111 CLR 549 Minister for Foreign Affairs v Lee [2014] FCA 927; 227 FCR 279 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162 Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 10 FCR 264 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 R (Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 2697 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 Raikua v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 370; 158 FCR 510 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 South Australia v O’Shea [1987] HCA 39; (1987) 163 CLR 378 State of Victoria v Master Builders’ Association of Victoria [1995] 2 VR 121 Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424 Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435
Date of hearing:	5 March 2019
Date of last submissions:	27 March 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	118
Counsel for the Applicants:	Mr BK Lim
Solicitor for the Applicants:	Kinslor Prince Lawyers
Counsel for the Respondents:	Mr C Lenehan with Mr A Bhasin
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		NSD 1500 of 2018
BETWEEN:	CHARBEL JABBOUR First Applicant ; CHADI JABBOUR Second Applicant ; RONI JABBOUR (and another named in the Schedule) Third Applicant
AND:	SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS First Respondent ; NATHAN POORE, ACTING ASSISTANT DIRECTOR, NSW MINISTERIAL INTERVENTION, DEPARTMENT OF HOME AFFAIRS Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	3 ApRIL 2019

THE COURT ORDERS THAT:

1. The application for review, in the form of the amended originating application for relief under s 39B of the Judiciary Act 1903 (Cth) dated 27 November 2018, be dismissed.

2. The applicants pay the respondents’ costs, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1. On 1 February 2012 Mr Charbel Jabbour, the first applicant, applied for a subclass 457 visa with his parents and siblings listed as dependants. That application was refused on 7 March 2014 as he did not have the skills, qualifications and employment background necessary at the time he last held a substantive visa, 22 September 2007. On 12 February 2015, the former Migration Review Tribunal affirmed that decision.

2. It appears that the applicants’ family arrived in Australia on 16 October 2003 on a subclass 457 visa. On expiry of the subclass 457 visa on 22 September 2007, the family became unlawful non-citizens. They came to the attention of the Department on 23 November 2011. Mr Chadi Jabbour, the present second applicant, applied for Australian citizenship claiming that he was a permanent resident. He presented a Lebanese passport containing an Australian permanent resident visa label which the Department identified had been fraudulently obtained. Thus the family’s visas were not genuine.

3. On 5 March 2015, a letter was sent to the Minister for Immigration and Border Protection requesting the Minister exercise his public interest power under s 351 of the Migration Act 1958 (Cth). That application included the four present applicants, but also included Mr Elias Jabbour and Ms Rima Kassas, their parents.

4. Section 351 provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Administrative Appeals Tribunal under s 349 a decision that is more favourable to the applicant. That power may only be exercised by the Minister personally. If the Minister so substitutes a decision he or she is to cause to be laid before each House of the Parliament a statement that sets out the decision of the Tribunal; sets out the decision substituted by the Minister; and sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest. The Minister does not have a duty to consider whether to exercise the power under s 351(1) in respect of any decision, whether he or she is requested to do so by the applicant or by any person, or in any other circumstances. I set out s 351 at [13] below.

5. On 4 October 2017, the Assistant Minister for Immigration and Border Protection declined to intervene.

6. On 7 March 2018, the legal representatives of the four present applicants, who are siblings, again requested the Minister to exercise his power under s 351. The applicants’ parents were not included in this...