MZYAH v Minister for Immigration
[2008] FMCA 852
•24 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYAH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 852 |
| MIGRATION – No review of refusal of Minister to consider exercising his powers under s.417. |
| Migration Act 1958 (Cth), ss.417, 476, 474 Federal Magistrates Court Rules 2001, r.16.01 |
| Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) NSWLR 154 |
| Applicant: | MZYAH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 498 of 2008 |
| Judgment of: | Turner FM |
| Hearing date: | 24 June 2008 |
| Date of last submission: | 24 June 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 24 June 2008 |
REPRESENTATION
| The Applicant: | No appearance |
| Solicitor for the First Respondent: | Ms S Thompson |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
Pursuant to r.16.01 of the Federal Magistrates Court Rules 2001 the Court grants the application in the Notice of Motion to dismiss the application by the applicant filed on 2 May 2008.
The Applicant pay the First Respondent’s costs fixed in the sum of $2,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 498 of 2008
| MZYAH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent Applicant
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from Transcript)
This is an application to review a decision of the Minister for Immigration and Citizenship dated 16 April 2008 refusing to exercise his discretion under s.417 of the Migration Act 1958 (“the Act”).
By response filed on 23 May 2008 the Minister contends that the decision in a privative, or purported privative, clause decision mentioned in s.474(7).
Section 474(7) provides that:
“(7)To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):
(a) a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 351, 391, 417 or 454 or subsection 503A(3).
...”
By Notice of Motion filed on 4 June 2008, the first respondent seeks that the application be dismissed as s.476(3)(d) provides that the Federal Magistrates Court has no jurisdiction in relation to a privative clause decision mentioned in s.474(7).
The applicant wrote to the Minister on 26 April 2007 asking him to exercise his power under s.417 (Affidavit Sarah Ainslie Thompson sworn 3 June 2008, Exhibit “SAT1”).
On 20 March 2008 the Minister decided not to consider the exercise of his power under s.417. Section 417(7) gives him that discretion.
“(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.”
On 16 April 2008 Ministerial Intervention Victoria advised the applicant that the Minister decided against considering the exercise of his power “SAT3”. Section 417(7) empowers him to do that.
There is a presumption of regularity (see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) NSWLR 154 at 164):
“The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of power or the doing of that act have been fulfilled”
The Court applies that presumption here.
By letter dated 16 April 2008 the applicant was advised by Ministerial Intervention Victoria that:
“After examining your case, Senator Chris Evans, Minister of Immigration and Citizenship decided against considering the exercise of the powers under s.417 on 29 March 2008.”
The Court accepts that as proof that the Minister made that decision. The Minister therefore acted within power.
The decision by the Minister against considering the exercise of his powers under s.417 is a privative clause decision that is not subject to review by the Court s.474(7)(a). Pursuant to r.16.01 of the Federal Magistrates Court Rules 2001 the Court grants the application in the Notice of Motion to dismiss the application by the applicant filed on
2 May 2008.
The first respondent seeks costs of the Notice of Motion and the proceeding. The Court orders that the applicant pay the costs of the First Respondent fixed in the sum of $2,500.00.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 24 June 2008
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