Is non-referral for Ministerial Intervention judicially reviewable?

Federal Court. Applicant requested that Minister consider exercising power under s 417 of Migration Act. Case officer made a 3 page initial assessment, concluding: "The claims and circumstances presented in this request are not unique or exceptional when assessed against the Minister’s Guidelines. The case is assessed as not meeting the Guidelines for referral to the Minister". Acting Assistant Director's decision read: "I agree with the assessment that circumstances of this case do not meet the Minister’s Guidelines for referral and that, in accordance with the Guidelines, the Department should finalise this request without referral..." Is s 417 conditioned by the requirement of legal reasonableness? If so, was initial assessment or agreement with it legally unreasonable?

The Federal Court (FCA) described the relevant facts as follows:

4    ... The decision [of the Acting Assistant Director, Ministerial Intervention, of the Department of Home Affairs] was in the following terms:

I agree with the assessment that circumstances of this case do not meet the Minister’s Guidelines for referral and that, in accordance with the Guidelines, the Department should finalise this request without referral. Notification is to be provided to the client/representative that the request is finalised without referral.

25    A case officer in the Department made an initial assessment. The assessment ran over three pages and contained information which was particular to the applicant. As far as the Court can see, the assessment accurately set out not only what the applicant had raised in his request but also what the Administrative Appeals Tribunal had found. The assessment also described the applicant’s personal and family circumstances. The assessment concluded:

The claims and circumstances presented in this request are not unique or exceptional when assessed against the Minister’s Guidelines. The case is assessed as not meeting the Guidelines for referral to the Minister

26    This was the assessment with which the Acting Assistant Director agreed, as I have set out above.

The questions to the FCA were as follows:

Question 1: Is s 417 of the Migration Act 1958 (Cth) conditioned by an obligation to afford procedural fairness?

Question 2: Is s 417 of the Migration Act 1958 (Cth) conditioned by the requirements of legal reasonableness?

If the answer to Question 2 is "yes":

Question 3: Is there an "indication of legal unreasonableness in the way the applicant’s request was assessed or in the agreement with that assessment by the Acting Assistant Director"?

Question 4: Can it be said that, if "the assessment had been obviously irrational, or had omitted critical facts or representations, it may have been legally unreasonable for the Acting Assistant Director to agree with it"?

Question 5: Can it be said that, if "the case officer had plainly misunderstood the Guidelines and misapplied them to the applicant’s circumstances that may also have resulted in a reviewable error if the Acting Assistant Director had adopted and proceeded on such a flawed understanding"?

Question 6: There were no reasons given for the decision not to refer the request to the Minister. Is there a "statutory duty imposed on the Minister, or the Acting Assistant Director, to provide reasons to a person in the applicant’s position"?

The FCA answered those questions as follows:

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