Fonoi FUA v Minister for Immigration

[2003] FMCA 48

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FONOI FUA & ANOR v MINISTER FOR IMMIGRATION [2003] FMCA 48

MIGRATION – Review of decision of the Minister not to receive for consideration a request that he consider substituting a more favourable decision for a decision of the Migration Review Tribunal – whether the Federal Magistrate’s Court has jurisdiction to entertain such an application considered – application dismissed as incompetent.

Migration Act 1958 (Cth), ss.345, 351, 417, 474, 475, 476

Ex parte Applicant S134 of 2002 v Commonwealth [2003] HCA 1

First Applicant:

Second Applicant:

MELE LATUE FONOI FUA

SIONE FATAI KOLOMAKA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1126 of 2002

Delivered on: 24 February 2003

Delivered at: Sydney

Hearing date: 24 February 2003

Judgment of: Driver FM

REPRESENTATION

Applicants appeared in person

Solicitors for the Respondent: Mr A Markus
Australian Government Solicitor

ORDERS

1. The objection to competency is upheld and the application is dismissed.

2. The first applicant is to pay respondent’s costs and disbursements of and incidental to the application, fixed at $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

S1126 of 2002

MELE LATUE FONOI FUA

First Applicant

SIONE FATAI KOLOMAKA

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTCULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This ex tempore judgment relates to an application for review filed by the applicants on 11 November 2002. The application is supported by a short affidavit filed on the same day. The application seeks to review a decision of a delegate of the Minister made on 28 October 2002. The application asserts that the decision was not made in good faith and further that the decision was incorrect and involved errors of law. The application also asserts that ss.474, 475 and 476 of the Migration Act 1958 (Cth) (“the Migration Act”) are not “constitutional”.

2. On 9 December 2002 Mr Markus, for the respondent Minister, filed a notice of objection to the competency of the application. That notice asserts that the decision sought to be reviewed is a decision arising from s.351 of the Migration Act and, further, that such a decision is excluded from the Court's jurisdiction by s.476(2) of the Migration Act. The notice also asserts that the letter referred to in the application, dated 28 October 2002, is not a final and operative decision which can be the subject of judicial review. I heard from Mr Markus, for the Minister, this morning and he also relies upon written submissions filed on 21 February 2003. I also received as evidence in support of the objection to competency an affidavit by Elizabeth Nora Jacqueline Warner, filed on 9 December 2002.

3. The following facts are apparent from that affidavit. First, the decision sought to be reviewed is a decision set out in a letter to the applicant dated 28 October 2002 from an officer of the Minister's Department. Secondly, that letter advises the applicant that a request for ministerial intervention would not be referred to the Minister for his consideration. Thirdly, it is apparent from the letter that the decision made in the Department was made on the basis of guidelines issued by the Minister relating to circumstances in which he would not consider the exercise of his power under s.351 of the Migration Act. Essentially, the Minister had decided that he would not consider the exercise of his powers where he had previously considered the exercise of those powers and nothing new had been raised.

4. Ms Warner's affidavit also establishes that a request was made to the Minister on 26 April 2002 by a Mr Fonua on behalf of the applicant. That letter erroneously referred to s.345 of the Act, which had been repealed and s.417, which was not applicable in the circumstances. It seems that, rightly or wrongly, Mr Fonua’s letter was interpreted on a generous basis to the applicant as a request to enliven the Minister's power under s.351. I say that the matter was interpreted on a basis generous to the applicant because the request to the Minister related to a decision made in 1995, before the enactment of the current regime of decision making (including s.351).

5. The immediate question that falls for determination is whether this Court has any jurisdiction to consider the application. There is ample authority referred to in the written submissions by Mr Markus that s.476(2) of the Migration Act excludes from this Court's jurisdiction decisions by the Minister under s.351 of the Migration Act. Not only does the Court have no jurisdiction to consider the Minister's exercise of power under that section, the Court has no jurisdiction to consider a refusal by the Minister to consider exercising his power. Further, it is apparent from the decision of the High Court in Ex parte Applicant S134 of 2002 v Commonwealth [2003] HCA 1 that the Minister cannot be compelled to consider exercising his power. It is at least strongly arguable that the same can be said in relation to attempts to compel the Minister's Department to refer matters to him.

6. There is also a question in this case whether there is any decision to review. The Minister has not considered the matter at all. His Department declined to refer the matter to him consistent with guidelines issued by the Minister in relation to such requests. In my view, in these circumstances, the operative decision under review is the decision made in advance by the Minister not to receive for consideration decisions falling within the class set out by the Minister. I accept that this request fell into that class. That decision is a decision caught by the exclusion of jurisdiction in s.476(2) of the Migration Act.

7. On that basis, I am satisfied that I should dismiss the application as incompetent in accordance with the application made by the Minister.  I have not heard from the applicant or from Mr Markus in relation to the substance of the application for review.  However, it is apparent from earlier decisions of the Federal Court and the High Court in applications of this nature referred to in the written submissions relied upon by Mr Markus that if the application for review were considered on its merits it would almost certainly be unsuccessful.  That is because it is clear that the Minister cannot be compelled to consider the exercise of his power.

8. In addition, if the operative decision were the decision of the departmental officer to refuse to refer the request to the Minister, it is apparent that that decision was made in accordance with ministerial guidelines and is almost certainly lawful. The applicant has filed written submissions which refer solely to constitutional issues. There is no substance to those submissions. Section 474 of the Migration Act is clearly a valid law of the Commonwealth. Sections 475 and 476 are also valid laws of the Commonwealth until they are found to be invalid and this application does not constitute a serious challenge to the validity of those provisions.

9. When I invited the first applicant to make submissions to me she referred to problems she says she has experienced with the Department in receiving correspondence.  She also told me that she has been in Australia for a long time and that all her family associations are here.  Those are matters that the applicant should take up with the Minister's Department.  They are not matters about which I can provide any relief. 

10. In the circumstances, I will dismiss the application.

11. On the question of costs, Mr Markus has sought an order for costs on behalf of the Minister.  As the Minister has been wholly successful in relation to the application, it is appropriate that an order for costs should be made.  Mr Markus seeks an order for costs fixed in the sum of $2,500.  The first applicant has put to me that she would have difficulty paying costs because of her financial means.  The financial circumstances of the applicant is a matter that the Minister can properly take into account in deciding whether to collect legal costs.  I am satisfied that an order for costs should be made and that the sum sought by Mr Markus is appropriate.  I will order that the first applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  13 March 2003