MZWUA v Minister for Immigration & Anor
[2008] FMCA 904
•13 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWUA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 904 |
| MIGRATION – Application to review registrar’s refusal to issue a proceeding – underpinning all applications is a substantive application to review the Minister’s discretion under s.417 of the Migration Act 1958 – question of jurisdiction of Federal Magistrates Court to review decisions of the Minister under s.417 – ultimately, underpinning and substantive application incompetent – application dismissed. PROCEDURE – Before a final decision was given, but after the applicant was afforded ample opportunity to present his case after being inform of the problems about jurisdiction, the applicant inflicted injuries on himself and was taken to hospital – question of whether the final decision should be adjourned to afford the applicant’s presence – final determination given on the day in the absence of the applicant. |
| Migration Act 1958 ss.417, 476(1) &(2)(d), 474(7) Federal Magistrates Court Rule 2001, Rule 44.12(1)(a) |
| Edson v Minister for Immigration & Anor [2008] FMCA 174 General Steel Industries Inc v Minister for Railways (1964) 112 CLR 125 Minister for Immigration and Multicultural Affairs and Another v Osmenian (1996) 141 ALR 322 NAOB of 2002 v Minister of Immigration and Citizenship and Another (2007) FMCA 1874 Raikula v Minister for Immigration and Multicultural and Indigenous Affairs 158 FCR 510 SZLJM v Minister for Immigration and Citizenship (2007) FMCA 1945 |
| Applicant: | MZWUA |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 590 of 2008 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 13 June 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 13 June 2008 |
REPRESENTATION
| Applicant in person |
| Solicitor for the First Respondent: | Ms Miller |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to Rule 44.12(a) of the Federal Magistrates Court Rule 2001, the application filed on 20 May 2008 is summarily dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 590 of 2008
| MZWUA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
This matter came before me today on an application effectively to seek an extension of time to apply to review a Registrar's decision, made on 12 May 2008, to refuse to issue an application because the applicant was out of time.
Underpinning this interlocutory application was the ultimate and substantive application to review an exercise of discretion by the Minister under s.417 of the Migration Act 1958 (the Act).
Background
The Minister exercised his discretion on 24 April 2008, which decision was communicated in a letter of that date and was acknowledged as having been received by the applicant on 28 April 2008. The Minister declined to exercise his discretion in favour of the applicant.
The applicant came to Australia on 15 September 2003. He claimed to be a native of India and claimed to be in need of protection. He filed a protection application on 14 October 2003. That was refused by a delegate of the Minister on 31 March 2004.
He then, on 27 April 2004, applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision; but on
29 October 2004the Tribunal affirmed the delegate’s decision. On 13 November 2004 the applicant lodged an application for review of the Tribunal’s decision in this court. This court on 13 December 2004 dismissed that application and thereafter the applicant resorted to an appeal to the Minister for an exercise of the Minister's discretion under section 417 of the Act to substitute a more favourable decision.
Today’s events
When the matter came before me today, the applicant was here in person. He was assisted by an interpreter. Ms Miller appeared for the first respondent, notwithstanding the fact that the Minister had not been served. I assume that the Minister became aware of this proceeding through a perusal of the court’s published lists and as a consequence of that, Ms Miller attended.
The applicant was invited to explain the nature of his application, not so much in respect of any reasons proffered for an extension of time to file an application to challenge the Registrar, but essentially to address the court on the more substantive issue underlying all the applicant's applications; namely, whether this court had jurisdiction to review the exercise of Minister’s discretion under section 417.
I believe I took some time in addressing the applicant as to the nature of these types of proceedings. I did so because, when invited to make comment, the applicant began to re-agitate the facts that he claims support his application for a protection visa, and generally described the process that had preceded today's hearing as being unfair to him. As I said, I then explained essentially the legal nature of these sorts of applications, and I also alluded to the fact that, subject to him being able to persuade me otherwise, this court would appear not to have jurisdiction to hear the substantive application, even if all the other applications were granted.
Events in court
I informed him that there needed to be some legal argument on his behalf to disabuse me of my understanding of this court's jurisdiction. I indicated my understanding, as I understood the facts from his material filed at court, that his substantive application was incompetent. It was at this stage of the proceeding when events took an unhappy turn.
I think it is fair to describe that the applicant perhaps saw the writing on the wall and read it, for he proceeded to lift a full jug of water up from the bar table and bang it on his forehead, splashing himself and then emptying the jug to some degree by flinging it around the court room, splashing other people in court, before slamming it to the floor. Dramatically he then proceeded to bang his head, with considerable force and effect, on the bar table. He continued to do that for some, what appeared to be at the time, considerable time until he appeared to collapse under the bar table. He left on the bar table a significant amount of his blood and caused a nasty injury to himself.
The court concluded at that stage to allow the applicant to be attended to by both security and ambulance attendants. That has now all been done, although we are now in a different court room to allow for the other to be cleaned up. The applicant is not here at the moment, having been, I understand, taken to hospital with a police escort.
Procedural fairness
The issue arises whether it is appropriate in the circumstances to perhaps delay any determination of the matter to allow the applicant to be present on such a determination. The only concern I have or would have in these sorts of circumstances is if the applicant was somehow denied an opportunity to present his case fully.
But I am satisfied, and I am reinforced in my own understanding by Ms Miller who has a similar understanding, that the unhappy events occurred at a time when the applicant had fully put his case. Indeed, it could be read from his behaviour that he had nothing further to put and resorted to an exercise of self harm as a closing gesture.
I am satisfied no injustice, or lack of procedural fairness would arise, if I continue now to proceed to a final decision in the matter.
Jurisdiction of the court to hear a review of the Minster’s discretion under s.417
As stated, I was of the view that this court does not have the jurisdiction to entertain the substantive application to review the Minister's discretion, and in forming that view I, of course, rely on the legislation itself, but also rely on a number of authorities which have been heard and determined on this particular issue in the past, both by my fellow Federal Magistrates and by the Federal Court.
There are for instance three Federal Magistrates that I know of who have heard and determined this issue, all consistently in my view with the legislation. They are Raphael FM in the matter of NAOB of 2002 v Minister of Immigration and Citizenship and Another (2007) FMCA 1874, Driver FM in Edson v Minister for Immigration & Anor [2008] FMCA 174 and Smith FM in SZLJM v Minister for Immigration and Citizenship (2007) FMCA 1945.
A very brief summary of the legislative framework is as follows.
Section 474(2) of the Act defines a privative clause decision as follows:
Privative clause decision means a decision of an administrative character made, proposed to be made or required to be made as the case may be under this act or under a regulation or other instrument made under this act.
The exercise of, or a decision not to exercise, the discretion under s.417 is a privative clause decision. (See s.474(7) of the Act)
However, under s.476(2)(d), the Federal Magistrates Court has no jurisdiction in relation to a privative clause decision which is referred to in s.474(7).
The decision made by the Minister not to exercise his discretion to substitute a more favourable decision than was given by the Tribunal clearly comes under the exception set out in s. 474(7)
Consideration was given to preceding enactments in similar wording in the matter of the Minister for Immigration and Multicultural Affairs and Another v Osmenian (1996) 141 ALR 322 where a determination was made by his Honour Sackville J in the Federal Court. His Honour held that the exclusion is even “wide enough to embrace conduct leading to a decision not to consider exercising the Minister’s powers.”
His honour outlined the Parliamentary intention behind the exclusion of decisions authorised by s.417 from the jurisdiction of the court:
Parliament has clearly treated the Minister’s discretionary power under s.417…as a special case. The explanatory memorandum to which I have referred shows that parliament was concerned … about the potential for abuse by non-citizens of the processes of judicial review. The view appears to have been taken that a residual Ministerial discretion was warranted, but not at the price of judicial review of decisions made in the exercise of that discretion.
In Raikula v Minister for Immigration and Multicultural and Indigenous Affairs 158 FCR 510 his Honour Lindgren J. examined the law in relation to the question of the reviewable aspects of the Minister's discretion under s.417. The conclusion reached is one which has been consistently reached by all my brother Federal Magistrates who have considered this issue and that is, this court does not have jurisdiction to entertain a review of the Minister's discretion under s.417.
Conclusion
It is fair to say, in summary, that the substantive application is plainly incompetent and it would be wrong for this court to entertain an extension of time as sought in the application before me, to then thereafter entertain the setting aside of the decision of a Registrar, and to then ultimately allow the applicant to file an application for review of the Minister’s discretion when that substantive application is plainly incompetent.
I am certainly not satisfied there is an arguable case for the relief ultimately claimed by the applicant. It is appropriate therefore to dismiss this matter at this stage summarily. In that regard too I refer to the authority of General Steel Industries Inc v Minister for Railways (1964) 112 CLR 125 where it was held that a proceeding should, and can be, dismissed in a summary manner where it “is so clearly untenable that it cannot possibly succeed” (page 130)
The applicant’s case is clearly untenable and ought to be dismissed pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 and it shall be done.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Associate:
Date:
0