Bedlington, Jennifer J. & Anor v Chong, Ana Cecilia Enciso [1998] FCA 1139

Bedlington, Jennifer J. & Anor v Chong, Ana Cecilia Enciso [1998] FCA 1139

Section 48B, read as a whole, confers on the Minister a power to negate the effect of s 48A but, because of the express language of s 48B(6), imposes no duty on the Minister to consider whether to exercise that power in any circumstances and imposes no duty to bring a matter to the Minister's attention. The Minister was entitled to issue guidelines identifying circumstances in which he was prepared to consider exercising the s 48B(1) power, and so long as the Secretary acted in accordance with those guidelines she had no duty to refer Ms Chong's request to the Minister.

Jurisdiction
Australia
Judgment Date
15 September 1998
Procedural Posture
Migration Appeal / Appeal From a Judge of the Federal Court of Australia Concerning a Matter Remitted From the High Court
Outcome
Appeal allowed; declaration set aside; remitted matter dismissed insofar as it relied on grounds (i) and (v).
Legal Topics
['protection Visa Further Application Bar' 'ministerial Non Compellable Power Under S 48 B' 'duty to Consider Ministerial Intervention Request' 'departmental Guidelines' 'mandamus and Prohibition']
['migration Law' 'administrative Law'] ['protection Visa Further Application Bar' 'ministerial Non Compellable Power Under S 48 B' 'duty to Consider Ministerial Intervention Request' 'departmental Guidelines' 'mandamus and Prohibition']

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Procedural Posture

Migration Appeal / Appeal From a Judge of the Federal Court of Australia Concerning a Matter Remitted From the High Court

Legal Issues

  1. 1 ['Whether the Minister has a duty to consider or exercise the power under s 48B(1) of the Migration Act 1958 (Cth) to determine that s 48A does not prevent a further protection visa application.' 'Whether s 48B(6) prevents the imposition of a duty on the Minister to consider whether to exercise the power under s 48B(1).' "Whether the Secretary had a duty to bring Ms Chong's request under s 48B to the attention of the Minister." 'Whether the Minister could lay down guidelines indicating the circumstances in which he or she was prepared to consider exercising the power conferred by s 48B(1).']

Ratio Decidendi

Section 48B, read as a whole, confers on the Minister a power to negate the effect of s 48A but, because of the express language of s 48B(6), imposes no duty on the Minister to consider whether to exercise that power in any circumstances and imposes no duty to bring a matter to the Minister's attention. The Minister was entitled to issue guidelines identifying circumstances in which he was prepared to consider exercising the s 48B(1) power, and so long as the Secretary acted in accordance with those guidelines she had no duty to refer Ms Chong's request to the Minister.

Court Disposition

Appeal allowed; declaration set aside; remitted matter dismissed insofar as it relied on grounds (i) and (v).

Orders

  • ['The appeal be allowed.' 'The declaration made on 15 December 1997 be set aside and in lieu thereof that the matter, insofar as it has been remitted to this Court, be dismissed.']