Minister for Immigration & Multicultural Affairs v MZXGJ

SECTION 351 7 Section 351 of the Act provides in part as follows: "(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. (2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of the Act. (3) The power under subsection (1) may only be exercised by the Minister personally. (4) If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that: (a) sets out the decision of the Tribunal; and (b) sets out the decision substituted by the Minister; and (c) 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. … (7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances." The "Tribunal" referred to in this section is the Migration Review Tribunal. Section 349, referred to in s 351(1), empowers that Tribunal to affirm the decision under review, vary the decision or set it aside and substitute a new decision. 8 Section 417 of the Act is in substantially the same form as s 351. Section 417(1) employs the same verbiage as s 351(1) save that the decision amenable for substitution is one made under s 415. Section 415 is in essentially the same form as s 349 except that it concerns the Refugee Review Tribunal not the Migration Review Tribunal. Section 417(2) is in the same terms as s 351(2), save that it relates only to exercises of power under sub‑s (1) after 1 September 1994. Section 417(3) is in the same terms as s 351(3). Section 417(4) is in the same terms as s 351(4) save that the word 'must' replaces the words 'it to'. Section 417(7) is in the same terms as s 351(7).

The decision of the Federal Magistrate 9 Before the Federal Magistrate, the respondent submitted that his failure to raise his Falun Gong practices in making his s 351 application was not a relevant consideration for the Tribunal to take into consideration. 10 The Federal Magistrate noted that s 351 is in almost identical terms to s 417 of the Act. Section 417 provides for the Minister to substitute a more favourable decision than the Tribunal in protection visa cases. Section 351 applies to decisions of the Migration Review Tribunal which does not review protection visa decisions. His Honour continued: "where an Applicant has made application for a visa other than a protection visa, it is clear that in seeking to encourage the Minister to make a more favourable decision pursuant to s 351, … the factors to be taken into account by the Minister in the exercise of that discretion are factors which would normally be raised in relation to an application to the Migration Review Tribunal." 11 Further, his Honour accepted submissions made by the respondent that any mention in a s 351 application of grounds relevant to a refugee claim would be met by the response that the claimant should make an application for a protection visa and that such grounds would therefore not be relevant to the discretion to be exercised under s 351. His Honour concluded: "Accordingly, any failure by the Applicant to mention membership of Falun Gong which clearly relate to matters in support of a protection visa at the time he made an application pursuant to s 351 of the Act, should not be regarded as relevant in the subsequent view of the Applicant's application for a protection visa undertaken by the Refugee Review Tribunal." It followed, in his Honour's view, that the Tribunal had taken into account an irrelevant factor in determining the claim and had fallen into jurisdictional error.

The arguments on appeal 12 The Minister raised two arguments on appeal. The first, which occupied the majority of the hearing, was concerned with the matters that may be relevant to the Minister's exercise of her discretion under s 351. The Minister submitted that the discretion cannot be limited to consideration of matters that might be determined by the Migration Review Tribunal and must include matters that would go to an application for refugee status. The second argument was made after a suggestion from the bench that it might be relevant for the Tribunal to consider not what the Minister was entitled to consider under s 351, but what it might be expected an applicant would submit. This argument was to the effect that even if it was not relevant for the Minister to consider the respondent's Falun Gong practice under s 351, he would still be expected to draw that practice to his migration agent's or to the Minister's attention. 13 The Minister submitted that the Federal Magistrate's construction of s 351 would lead to a serious practical difficulty and therefore cannot have been intended by the legislature. His Honour's construction would require the Minister, when exercising her discretion under s 351, to exclude from her consideration of the public interest any matter that might be relevant to a refugee claim. The converse would also be true, namely that in exercising the similar discretion under s 417, the Minister could not take into account any matter relevant to the application for any visa other than a protection visa. The Minister also drew the Court's attention to a number of other provisions under the Act that confer a discretion to substitute a decision more favourable to an applicant. Presumably the Federal Magistrate's construction of s 351 and its attendant difficulties would apply equally to these sections. 14 The Minister submitted that the reason for the existence of multiple 'public interest' discretionary provisions, such as s 351, is that there are a number of different decisions for which the Minister may substitute her own, more favourable to an applicant. The scheme of the Act is such that for each decision that may be made by a tribunal, there is a concomitant discretion on the Minister's part to substitute a more favourable decision. This should not, according to the Minister, be construed as requiring each discretionary provision to be applied discretely. 15 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) 133 FCR 506; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (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) 211 CLR 441. These decisions were apparently not drawn to the Magistrate's attention.

DISPOSITION OF THE APPEAL 16 The relevant decisions on the exercise of the Minister's discretionary power to make a more favourable decision than that complained of have arisen under s 417, though some of them refer to s 351. 17 In NATB v Minister for Immigration and Multicultural and Indigenous Affairs (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) 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". 18 In SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No 4) one question was whether for the purposes of s 198(6) of the Act the exercise of the discretionary power in s 417(1) is a review of an application for a substantive visa. Mansfield J held it was not. His Honour said at [24]: "The power to substitute a decision for a decision of the Tribunal is qualified only by the limitations preserved in s 417(2) and by the respondent having the opinion that the grant of the visa is in the public interest. The power to substitute a more favourable decision is not one which readily fits into the concept of a review. The power may be exercised independently of the Tribunal's decision, and irrespective of the reasons for the Tribunal's decision. The respondent may exercise the power even where the Tribunal had no power to have made the more favourable decision, for example where the application to the Tribunal for review was made outside the period specified in s 412(1) of the Act." 19 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 at [45]‑[46] Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ said: "when exercising the power under s 417, the Minister was not bound either by Subdiv AA (ss 44-51) or Subdiv AC (ss 65-69) of Div 3 of Pt 2 of the Act, or by the Regulations. That follows from the terms of s 417(2). Subdivision AC contains the central provision in s 65 obliging refusal to grant a visa if the Minister be not satisfied that the criteria prescribed by the Act or the Regulations for the relevant visa have been satisfied. Further, s 417(3) stipulates that the power under the section may only be exercised by the Minister personally. The identification of the Minister as the sole repository of the power indicates the legislative intention that the question of the substitution of a more favourable decision to disappointed applicants is to be answered by the taking of a broad approach. The point is emphasised by the express statement in s 417(1) that the power is to be exercised if the Minister "thinks that it is in the public interest to do so" and by the requirement in sub-ss (4), (5) and (6) respecting the laying before each House of the Parliament of a statement by the Minister where a decision more favourable to the applicant has been substituted." 20 In Applicants 325/2002 v Refugee Review Tribunal [2006] FCAFC 59 a Full Court (Moore, Nicholson and Conti JJ) refused to interfere with the decision of a single judge refusing to grant orders nisi for constitutional writs on the ground that there was no viable basis therefor. However at [39] Conti J, with whom the other Judges agreed, referred to s 417: "Whilst cognisant of the confined scope of the issues arising on the appeal, I would nevertheless commend for reconsideration by the Minister, pursuant to s 417 …, the following factors concerning this evidently unfortunate family, which may conceivably be thought to render permissible their remaining in Australia upon some appropriate visa basis. They are factors which might warrant reconsideration upon grounds divorced from the issues that have arisen for resolution on the appeal, being factors to which reference has already been made in the course of the reasons for judgment". 21 His Honour then listed the factors, which included injuries suffered by two of the applicants in a fire in Belgium before they came to Australia, their residence here for eleven years, the birth and schooling in Australia of a daughter of two of the applicants, and support provided to them by the wider Australian community. As his Honour said, these were factors that were extraneous to the refugee related matters with which the relevant Tribunals' decisions were concerned. As appears from [7] and [8], s 351 is in essentially the same form as s 417. The purpose and object of the two sections must be the same: to enable compassionate and humanitarian relief to be granted. In each case a broad approach is to be applied. The public interest referred to in each section is itself a broad concept, and there is no reason to confine the exercise of the power to ameliorate an applicant's position consequent on the denial of a visa by reference to matters relevant only to the granting or refusal of that visa. 325/2002 is an example of matters proper for the Minister to take into account under s 417 that were not relevant to the grant or refusal of a protection visa. The same approach should be available under s 351. 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. 23 The Magistrate did not refer to any of the authorities set out above. The basis of his Honour's decision lies in the existence of two sets of provisions: those in Part 5 of Division 3 (where s 351 appears) dealing with the review of decisions of the Migration Review Tribunal and those in Division 2 of Part 7 (where s 417 appears) dealing with review of protection visa decisions. From this the Magistrate discerned an intention that the factors to be taken into account in the exercise of the discretion under s 351 "are factors which would normally be raised in relation to an application to the Migration Review Tribunal". The same reasoning appears at [40] of the Magistrate's decision: "any suggestion of grounds upon which a protection visa could be granted would of necessity generate the response that there is provisions for the Applicant to make application for a protection visa, and that those grounds are not relevant to the exercise of the Minister's discretion under s 351 considering, as a Minister must, those matters relevant to visa applications within the jurisdiction of the Migration Review Tribunal." 24 Again at [42] of his reasons the Magistrate relies on the fact that s 351 appears in a different part of the Act from that dealing with protection visas: "The issues that may or may not have been raised by an Applicant seeking to persuade the Minister to make a more favourable decision pursuant to s 351 of the Act would not be reasonably expected to include factors relevant to an application for a protection visa which in a separate part of the Act is dealt with, and more particularly, in a separate division provides for a separate power which the Minister may exercise pursuant to s 417 of the Act." 25 The Magistrate concluded this part of his reasons with these words: "If Parliament intended that the power of the Minister under s 351 extended to the same power set out in s 417, albeit under a different part and a different division, then clearly Parliament could have inserted a general discretionary provision covering all applications. By providing two separate sections within two separate parts dealing with different visa applications, it is my view, that it is an error for a Tribunal to take into account omissions of an Applicant made when making application under that part of the Act which clearly does not relate to protection visas." It was for these reasons that his Honour concluded that the Tribunal had taken into account an irrelevant consideration. 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. 29 Despite the parties' preference for debating that issue, in my view the Minister's alternative submission is determinative of the appeal. It looks not to what it would be relevant for the Minister to take into account, but rather involves a common sense enquiry as to whether someone in the position of the respondent, fearing persecution on return to China consequent upon the failure of his visa application, would be expected to include this fear and the reasons for it in his s 351 request. The respondent was possessed of a great deal of information about Falun Gong which he put before the Tribunal. He had practised Falun Gong nearly every day since 1996. The Tribunal found that he must have known that the authorities commenced the suppression of Falun Gong in mid 1999. In those circumstances, one would expect him to have deployed all available arguments, humanitarian, compassionate or otherwise, to remain in Australia. His failure to do so was capable of being seen by the Tribunal as indicative that he was inventing or exaggerating his Falun Gong activities. 30 Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject‑matter, scope and purpose of the statute some implied limitation on the factors to which the decision‑maker may legitimately have regard. See Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 40. Accordingly, a consideration will be irrelevant only if the applicable statute expressly or impliedly prohibits a tribunal from taking it into account: Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 at [137]. 31 The matters relied on by the Magistrate at [23] to [25] did not justify the conclusion that the Tribunal was expressly or impliedly prohibited from taking into account the respondent's failure to mention in his s 351 request his fear of harm by reason of his Falun Gong practice. On the approach I favour, the respondent's failure to mention his Falun Gong practice was a matter the Tribunal was entitled to take into account and view with suspicion.

CONCLUSION 32 The appeal must be allowed, the orders of the Federal Magistrate set aside and in lieu thereof it be ordered that the respondent's application for an order to show cause be dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.