Hussein v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2006] FCA 286

Hussein v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2006] FCA 286

The AFP's referral of the Applicant's complaint to DIMIA and its refraining from investigating the allegations itself were not decisions to which the ADJR Act applied, because they were not decisions made under an enactment in the required sense; therefore the ADJR Act claims in paragraphs 4A, 4B, 4C and 4D had to be dismissed. However, it was not beyond argument that referring the complaint to a department whose conduct was indirectly called into question, in circumstances where it could be said that the Fifth Respondent knew the department had a closed mind, might constitute an impermissible abdication of responsibility. The Applicant also had at least an arguable case for standing as...

Jurisdiction
Australia
Judgment Date
22 March 2006
Procedural Posture
Migration Proceeding Concerning Alleged Offences Under the Migration Act 1958 (cth) and Investigation by the Australian Federal Police / Fifth Respondent's Notice of Motion for Summary Dismissal Under Order 20 Rule 2 of the Federal Court Rules
Outcome
The ADJR Act claims against the Fifth Respondent were dismissed, but the Fifth Respondent's motion for summary dismissal was otherwise dismissed and the mandamus claim was permitted to proceed; no order as to costs.
Legal Topics
['summary Dismissal' 'mandamus' 'adjr Act Review' 'standing' 'police Discretion to Investigate' 'unlawful Non Citizens Performing Work in Detention Centres']
['migration Law' 'administrative Law' 'federal Policing' 'judicial Review'] ['summary Dismissal' 'mandamus' 'adjr Act Review' 'standing' 'police Discretion to Investigate' 'unlawful Non Citizens Performing Work in Detention Centres']

Case Brief

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Procedural Posture

Migration Proceeding Concerning Alleged Offences Under the Migration Act 1958 (cth) and Investigation by the Australian Federal Police / Fifth Respondent's Notice of Motion for Summary Dismissal Under Order 20 Rule 2 of the Federal Court Rules

Legal Issues

  1. 1 ["Whether the Applicant's claims against the Fifth Respondent should be summarily dismissed as disclosing no reasonable cause of action, frivolous or an abuse of process." "Whether the Australian Federal Police's referral of the Applicant's complaint to DIMIA and decision not to investigate was a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applied." 'Whether the Applicant had an arguable claim for relief in the nature of mandamus compelling the Fifth Respondent to consider whether his allegations should be investigated.' 'Whether the Applicant had an arguable case for standing in relation to the mandamus claim against the Fifth Respondent.']

Ratio Decidendi

The AFP's referral of the Applicant's complaint to DIMIA and its refraining from investigating the allegations itself were not decisions to which the ADJR Act applied, because they were not decisions made under an enactment in the required sense; therefore the ADJR Act claims in paragraphs 4A, 4B, 4C and 4D had to be dismissed. However, it was not beyond argument that referring the complaint to a department whose conduct was indirectly called into question, in circumstances where it could be said that the Fifth Respondent knew the department had a closed mind, might constitute an impermissible abdication of responsibility. The Applicant also had at least an arguable case for standing as...

Court Disposition

The ADJR Act claims against the Fifth Respondent were dismissed, but the Fifth Respondent's motion for summary dismissal was otherwise dismissed and the mandamus claim was permitted to proceed; no order as to costs.

Orders

  • ['The claims for relief in paragraphs 4A, 4B, 4C and 4D of the Further Amended Application filed 16 March 2006 be dismissed.' "Otherwise, the Fifth Respondent's Notice of Motion filed 20 October 2005 be dismissed." 'There be no order as to costs.']