In the Matter of an Application for Writs of Mandamus & a Writ of Prohibition in High Court Proceedings S39 of 1996, & Bedlington, Jennifer J & Anor & Ex Parte: Chong, Ana Cecilia Enciso [1997] FCA 1042

In the Matter of an Application for Writs of Mandamus & a Writ of Prohibition in High Court Proceedings S39 of 1996, & Bedlington, Jennifer J & Anor & Ex Parte: Chong, Ana Cecilia Enciso [1997] FCA 1042

Under the statutory scheme, while there is no general duty for the Minister to intervene or consider every application for Ministerial discretion under s 48B of the Migration Act, the Minister's power to intervene is preserved in special cases. If an application appears to satisfy the ‘public interest’ criterion under s 48B(1), s 48B(6) does not operate to prevent Ministerial consideration. However, administrative guidelines and procedures for filtering applications are permissible provided fairness is maintained, and the Act does not mandate referral of all applications for personal consideration. No relief is granted at this stage; proceedings are stood over for further directions.

Parties
Prosecutor: Ana Cecilia Enciso Chong; First Respondent: Jennifer J Bedlington; Second Respondent: Minister for Immigration and Multicultural Affairs
Jurisdiction
Australia
Judgment Date
09 September 1997
Procedural Posture
Application for Writs of Mandamus and Prohibition / On Remittal From the High Court, Directions Hearing
Outcome
Proceedings stood over for further directions; no final orders as to the relief sought at this stage.
Legal Topics
Ministerial Discretion Under Migration Act, Statutory Construction, Estoppel
Migration Administrative Law Ministerial Discretion Under Migration Act Statutory Construction Estoppel

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Parties

Ana Cecilia Enciso Chong

Prosecutor

Jennifer J Bedlington

First Respondent

Minister for Immigration and Multicultural Affairs

Second Respondent

Procedural Posture

Application for Writs of Mandamus and Prohibition / On Remittal From the High Court, Directions Hearing

Legal Issues

  1. 1 Whether the Minister is obliged to personally consider or have referred requests for the exercise of discretion under s 48B of the Migration Act
  2. 2 Whether Ms Bedlington was obliged to refer the request for Ministerial intervention to the Minister
  3. 3 Whether the statutory scheme allows delegation or filtering of applications for Ministerial intervention

Ratio Decidendi

Under the statutory scheme, while there is no general duty for the Minister to intervene or consider every application for Ministerial discretion under s 48B of the Migration Act, the Minister's power to intervene is preserved in special cases. If an application appears to satisfy the ‘public interest’ criterion under s 48B(1), s 48B(6) does not operate to prevent Ministerial consideration. However, administrative guidelines and procedures for filtering applications are permissible provided fairness is maintained, and the Act does not mandate referral of all applications for personal consideration. No relief is granted at this stage; proceedings are stood over for further directions.

Court Disposition

Proceedings stood over for further directions; no final orders as to the relief sought at this stage.

Orders

  • Proceedings stood over for further directions.