Funaki v Minister for Immigration and Multicultural Affairs
[2000] FCA 1056
•26 JULY 2000
FEDERAL COURT OF AUSTRALIA
Funaki v Minister for Immigration & Multicultural Affairs [2000] FCA 1056
CITIZENSHIP AND MIGRATION – application for order of review of decision of Minister refusing to substitute a more favourable decision pursuant to s 351 of the Migration Act 1958 (Cth) – application for removal of proceeding to High Court – where clear that Federal Court has no jurisdiction to entertain the application for review
Migration Act 1958 (Cth) ss 351, 417, 475, 476, 485
Judiciary Act 1903 (Cth) s 39BMinister for Immigration v Ozmanian (1997) 71 FCR 1 referred to
TEVITA FUNAKI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR
N 345 OF 2000
EMMETT J
26 JULY 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 345 OF 2000
BETWEEN:
TEVITA FUNAKI
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENTTHE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
26 JULY 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The applicant’s notice of motion filed 7 July 2000 be dismissed.
2. The applicant pay the respondent’s costs of the motion.
3. The application be dismissed.
4. The applicant pay the respondent’s costs of the proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 345 OF 2000
BETWEEN:
TEVITA FUNAKI
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENTTHE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT
JUDGE:
EMMETT J
DATE:
26 JULY 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 12 April 2000 the applicant lodged an application for an order of review under sections 475 and 476 of the Migration Act 1958 (Cth) (‘the Migration Act’). The application begins as follows:
“Application to review the decision of the Minister to refuse to exercise his discretion under section 351 of the Migration Act 1958 was incorrect, unconstitutional and involved some breaches of the UN Treaties as ratified by the Commonwealth.”
The application asserts that the decision is incorrect, unconstitutional and involved some breaches of the UN Treaties as ratified by the Commonwealth. The date of the decision to be reviewed is said to be 7 April 2000. The application then goes on to specify seven grounds of the application, I shall come back to those grounds in a moment. The orders sought are as follows:
“1.That the Court may order to remit the decision to the Minister for reconsideration according to law.
2.Any other order that the court might think appropriate.
3.Costs.”
The application was filed by the applicant without any legal representation. On 17 April 2000 the Minister filed notice of objection to competency. The Minister objected to the jurisdiction of the court to try the application on the following grounds:
“1. By virtue of s. 475(2)(e) of the Act, a decision by the First Respondent not to exercise or not to consider the exercise of, his power under s. 351 of the Act is not a‘ judicially reviewable decision’; and
2.By virtue of s. 485(1) of the Act, the Federal Court does not have any jurisdiction in respect of decisions covered by s. 475(2) of the Act (other than the jurisdiction provided under Part 8 of the Act or by s. 44 of the Judiciary Act 1903.)”
I fixed the objection to competency for hearing for today. On 7 July 2000, a motion was filed on behalf of the applicant applying to remove into the High Court certain constitutional matters. The motion was as follows:
“The applicant applies to remove the constitutional matters filed in this proceeding to High Court within the meaning of s 75 of the Constitution.”
The grounds specified in the notice of motion were as follows:
“1.That s 75(1) of the Constitution conferred original jurisdiction on the High Court in all matters arising under any treaty.
2.That s 38(a) of the Judiciary Act made exclusive to the High Court the jurisdiction in matters arising directly under any treaty.
3.That the Australian Government Solicitor had advised that if the proceeding is taken further on appeal or is removed to the High Court the Commonwealth Attorney General might decide to intervene at that stage.”
The only material before me consists of correspondence between the Minister and representatives of the applicant. On 18 February 2000, Mr Liufau Fonua made a request to the Minister on behalf of the applicant, his spouse and son. The application sought ministerial intervention:
“in changing a decision made by the IRT, notification of which was by letter to the applicants dated 9/6/93.”
I have no express evidence as to the nature of that decision.
On 2 March 2000, a response was sent to Mr Funaki saying, inter alia, as follows:
“The Minister has asked me to inform you that whilst section 351 provides the Minister with the power to substitute a decision of the Immigration Review Tribunal with a decision more favourable to you and to your family, he is under no obligation to exercise that power.
It is currently taking some time to finalise requests such as yours, but please be assured that you will be contacted again when examination of your case has been completed.”
On 7 April 2000, the Minister wrote to the applicant, referring again to the request of 18 February 2000 and saying as follows:
“Under the Act, my power to intervene to substitute a more favourable decision is only available in respect of decisions of the Migration Internal Review Office (MIRO), the Immigration Review Tribunal (IRT) or the Migration Review Tribunal (MRT), which were made after 1 September 1994.
As there has not been a decision on your case from MIRO, the IRT or the MRT after 1 September 1994, I have no power to consider substituting a more favourable decision in your case.
This may be contrary to your previous understanding of my public interest powers. I am advised, however, that I do not have the power to intervene in the public interest where these preconditions are not met. I am further advised that when the Migration Legislation Amendment Act 1992 came into effect (primarily on 1 September 1994), previously available powers, eg under former s. 115, were repealed and there were no preservation provisions to allow those powers to be used after that date.
You should now contact the nearest office of my department to discuss your status in Australia.”
Whether or not that is a correct statement of the law is not the question before me. The question is whether the court has jurisdiction to entertain an application for review of the Minister’s decision to refuse to exercise discretion under section 351. Under section 475(2)(e), certain decisions are not judicially reviewable decisions. In particular, a decision of the Minister not to exercise, or not to consider the exercise of his or her power under section 351 or section 417, is not a judicially reviewable decision.
Section 485(1) of the Migration Act provides that in spite of any other law, including section 39B of the Judiciary Act1903 (Cth):
“The Federal Court does not have any jurisdiction in respect of judicially reviewable decisions covered by subsection 475(2), other than the jurisdiction provided by this Part [Part VIII] or by section 44 of the Judiciary Act 1903.”
It is clear that a decision of the Minister not to exercise, or not to consider the exercise of power under section 351 or section 417, is covered by section 475(2). Parliament, for whatever policy reason, has taken the view that a residual ministerial discretion capable of being exercised in favour of an unsuccessful applicant for refugee status or for permanent resident status, is warranted, but not at the price of review by the Federal Court of such a decision, or of the refusal to make such a decision: see Minister for Immigration v Ozmanian (1997) 71 FCR 1 at 27 and 29. It is clear, in my view, that this Court has no jurisdiction to review the Minister’s decision, evidenced in the correspondence to which I have referred, not to exercise any discretion under section 351 of the Act. Indeed, no argument was advanced on behalf of the applicant to the contrary. In the hearing before me, the applicant was assisted by Mr Fonua, who made the application of 18 February 2000 on behalf of the applicant. Mr Fonua indicated that he wished to press the notice of motion for removal into the High Court.
The motion appears to me to be misconceived. I referred earlier to the grounds specified in the application to this Court. The grounds are as follows:
“1.It is unconstitutional for the Commonwealth Parliament to enact legislation namely criterion 3002 ‘12 months rule’ Schedule 3 of the Migration Regulations 1994, that has a retrospective effect on persons who would otherwise be entitled to apply for a visa.
2.It is unconstitutional for the Commonwealth Parliament to enact legislation under the Migration Act which authorises the making of regulations inconsistent with UN treaties ratified by the Commonwealth.
3.It is unconstitutional for the Commonwealth Parliament to enact legislation in the form of the Migration Act 1958 which authorises the making of regulations having an unjust effect on individuals.
4.It is unconstitutional for the Commonwealth Parliament to enact legislation which authorises the making of regulations inconsistent with the Marriage Act 1961 of the Commonwealth.
5.It is unconstitutional for the Commonwealth Parliament to enact legislation which authorises the making of regulations inconsistent with the provisions of s 47 of the Human Rights and Equal Opportunity Commission Act 1986.
6.The applicant has two children who are citizens of Australia and ought to be protected by the Constitution.
7.The respondent wrongly failed to consider aspects of the UN Declaration Rights of the Child in the making of the decisions.”
I do not understand how any of those grounds could be relevant to the question of the review of the decision of the Minister not to exercise his discretion under section 351. It may be - and I have no way of knowing - that those questions may have arisen in some other substantive application made on behalf of the applicant or on behalf of his family. The original application of 18 February 2000 refers to a decision of the Immigration Review Tribunal of 9 June 1993. It may be that that decision put in question the constitutionality of the regulations and other provisions referred to in the grounds.
Be that as it may, those questions are simply not raised by the application presently before me. There does not appear to me to be anything properly brought before this Court that is capable of removal into the High Court. Accordingly, the motion for removal should be dismissed. I would also uphold the Minister’s objection to competency. In my view, the proceedings should be dismissed for want of jurisdiction.
The applicant asks that I not make the usual order that costs follow the event on the basis that the applicant must be entitled to a remedy somewhere. It may well be that the applicant is entitled to some remedy in respect of some decision. However, this application, it seems to me, was quite misconceived. In view of the clear provisions of section 485, it really was a waste of the Court’s time for the matter to be brought. In the circumstances I do not see any reason to depart from the usual practice of the Court that costs should follow the event.
I propose to order that the notice of motion filed on 7 July 2000 be dismissed and that the applicant pay the costs of that motion. I also propose to order that the proceedings be dismissed and that the applicant pay the Minister’s costs of the proceedings.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 31 July 2000
Mr L Fonua appeared for the applicant Solicitor for the Respondent: Mr A Markus for the Australian Government Solicitor Date of Hearing: 26 July 2000 Date of Judgment: 26 July 2000
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