Edson v Minister for Immigration & Anor
[2008] FMCA 174
•18 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EDSON v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 174 |
| MIGRATION – Review of an officer’s decision – refusal to refer a request for Ministerial intervention to the Minister – the Court has no jurisdiction to review the refusal. WORDS AND PHRASES – Instrument. |
| Legislative Instruments Act 2003 (Cth) Migration Act 1958 (Cth), ss.351, 417, 474, 476, 499 |
| Applicant NAOB of 2002 v Minister for Immigration [2007] FMCA 1874 Ozmanian v MILGEA (1996) 137 ALR 103 Raikua v Minister for Immigration (2007) 158 FCR 510 S1083/2003 v Minister for Immigration [2004] FCA 1455 SZFDZ v Minister for Immigration [2006] FMCA 717 SZLJM v Minister for Immigration [2007] FMCA 1945 Trinh v Minister for Immigration & Anor [2007] FMCA 2115 |
| Applicant: | TOFUA FOTU EDSON |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | ACTING BRANCH MANAGER MINISTERIAL INTERVENTION UNIT, ACT AND REGIONS OFFICE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP |
| File Number: | SYG 47 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 18 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Turner |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Ms D Watson Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed.
The applicant is to pay the respondents’ costs and disbursements of and incidental to the application, fixed in the sum of $2,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 47 of 2008
| TOFUA FOTU EDSON |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| ACTING BRANCH MANAGER MINISTERIAL INTERVENTION UNIT, ACT AND REGIONS OFFICE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review what purports to be a decision of an officer of the Minister's Department in relation to the Minister's powers under s.351 of the Migration Act 1958 (Cth) (“the Migration Act”). The circumstances are in my view indistinguishable from those dealt with in my earlier decision of Trinh v Minister for Immigration & Anor [2007] FMCA 2115.
The application was filed on 9 January 2008 and identified the relevant decision as one made on 18 December 2007, notified on or about 27 December 2007. The applicant now relies on an amended application filed in my chambers earlier today, but apparently earlier filed in the Court registry.
The matter came before me on 6 February 2008 at which time I directed that the matter be listed today for a preliminary hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) and noting that it appeared to me at that time that the matter was indistinguishable from Trinh.
Both parties have taken the opportunity to file written submissions and have also made short oral submissions. The Minister's submissions conveniently traverse the issues which I addressed in Trinh and I incorporate for the purposes of this judgment those submissions:
The applicant seeks to challenge a decision identified in the application filed with the Court on 9 January 2008 as being a decision made on 18 December 2007, being the decision contained in a letter which is annexure “A” to the affidavit of David Lee Bitel affirmed on 9 January 2008.
The respondent has filed a response on 5 February 2008 opposing the application on the basis that the Federal Magistrates Court does not have jurisdiction to hear the matter.
The said letter is from an officer of the Department of Immigration and Citizenship which advised the applicant, through her representative, that her further request to the Minister to exercise his powers under s. 351 of the Migration Act 1958 (“the Act”) had not been referred to the Minister for consideration. The letter went on to explain that an earlier request by the applicant to the Minister had been personally considered by him and that the further request had not been forwarded as the information contained therein was not considered to have brought the request within the Minister’s guidelines for further reference to the Minister.
It is submitted by the respondent that the applicant seeks to challenge a privative clause decision which is referred to in s. 474(7)(a) of the Act, in that she seeks to challenge a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under s. 351 of the Act.
Section 476(2)(d) of the Act provides that the Federal Magistrates Court does not have jurisdiction in relation to a privative clause decision or purported privative clause decision mentioned in s.474(7) of the Act.
Therefore, the respondent submits that this Court does not have jurisdiction to determine the application.
It is submitted that this case is relevantly indistinguishable from the matter considered by Federal Magistrate Driver in SZFDZ v Minister for Immigration and Multicultural Affairs[1]. Federal Magistrate Driver’s judgment was the subject of an application for leave to appeal which was refused by Justice Moore[2]. In SZFDZ, Federal Magistrate Driver held that a refusal to refer a request to the Minister for the exercise of his powers under s. 417 was caught by s. 476(2)(d). On the application for leave to appeal, Justice Moore stated “It is not apparent to me that there was any error in the Federal Magistrate’s decision.”[3]
The respondent notes that Raphael FM accepted that the Federal Magistrates Court did not have jurisdiction in Applicant NAOB of 2002 v MIAC and Anor [2007] FMCA 1874. The circumstances of that case were relevantly identical to the present case, although it concerned a request under s. 417 of the Act.
Smith FM has also held that this court does not have jurisdiction in relation to a decision of an officer not to refer a request under s. 417 to the Minister due to the operation of s. 476(2)(d) in SZLJM v Minister for Immigration and Citizenship [2007] FMCA 1945.
Both Smith FM and Raphael FM relied upon the reasoning in S1083/2003 v Minister for Immigration and Multicultural and Indigenous Affairs[4] and Raikua v Minister for Immigration and Multicultural and Indigenous Affairs[5] both of which considered earlier but similar provisions to s. 476(2)(d). In each of those cases it was held that the court did not have jurisdiction to hear the application.
Driver FM has also recently held that this court does not have jurisdiction in relation to a decision of an officer not to refer a request under s. 351 to the Minister in Trinh v Minister for Immigration and Citizenship [2007] FMCA 2115 and found that the case could not be distinguished from the authorities relied on by the Minister in SZLJM.
The respondent notes that the applicant places importance on the fact that the Minister did not personally consider the exercise of the power under s. 351 which therefore takes the action outside of the exclusion from jurisdiction set out in s. 474(7)(a). However, the cases cited above were all cases which had before them a refusal by a departmental officer to refer a request to the Minister. A similar argument was expressly rejected in Ozmanian v MILGEA 137 ALR 103. The effect of that decision in relation to this issue was relied upon by Moore J in S1083/2003 as well as Justice Lindgren who summarised the principles in Raikua at paragraph 42.
[1] [2006] FMCA 717
[2] SZFDZ v MIMA [2006] FCA 974
[3] at p. 2
[4] [2004] FCA 1455
[5] 158 FCR 510
The respondent therefore submits that the application should be dismissed with costs.
I have not changed the view I took in Trinh and in my view this matter should be resolved consistently with that decision. I will, however, address a submission made on behalf of the applicant by Mr Turner bearing on what I said in paragraph 7 of Trinh:
Either the officer's decision not to refer the fresh request for ministerial intervention to the Minister was a decision falling within ss.474(7) and 476(2)(d) of the Migration Act, in which case the decision is expressly excluded from the jurisdiction of this Court, or it was not a decision for the purposes of the Migration Act at all and the source of the Court's jurisdiction to deal with it is unknown to me.
Mr Turner submitted that this case involves a decision purportedly made by an officer of the Minister's Department under written guidelines issued by the Minister in relation to repeat requests for ministerial intervention pursuant to s.351 of the Migration Act. I accept that that is so from annexure A to the affidavit of David Lee Bitel which is before me. That is a letter from a Mr Kim Roberts, Acting Branch Manager of the Ministerial Intervention Unit, dated 18 December 2007. That letter refers to an instruction from the Minister relating to the handling of such requests and I am aware from previous cases that the instruction has been reduced to writing. Mr Turner submits that the ministerial instruction qualifies as an “instrument” for the purposes of s.474(2) of the Migration Act and that the Court has jurisdiction to review a purported decision made pursuant to that instrument.
Having considered that issue and heard argument on it, I take the view that the word "instrument" used in s.474(2) in conjunction with the word "regulation" is a reference to a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth) (“Legislative Instruments Act”). On that basis, the ministerial instruction would not be an instrument. It is not legislative in character. In particular it does not determine the law or alter the character of the law[6]. I have also considered whether it would be a direction for the purposes of s.499 of the Migration Act. I do not think it would be because the Minister cannot direct himself and neither could the Minister delegate his decision making powers under s.351 of the Migration Act.
[6] see s.5 Legislative Instruments Act
I therefore maintain the views I expressed in Trinh. I find that this matter should be resolved consistently with my decision in Trinh and I will therefore order that the application be dismissed.
The Minister seeks the sum of $2,200 in costs in consequence of the dismissal of the application. That is not opposed. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $2,200.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 20 February 2008
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