MZYBW v Minister for Immigration
[2008] FMCA 1444
•12 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYBW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1444 |
| MIGRATION – Decision of the Minister – jurisdiction – no point of principle. |
| Constitution of the Commonwealth of Australia 1901 Migration Act 1958, ss.417, 474, 476 |
| Applicant: | MZYBW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1014 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 12 September 2008 |
| Date of Last Submission: | 12 September 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 12 September 2008 |
REPRESENTATION
| The Applicant: | Appearing in person |
| Counsel for the Respondent: | Ms S. Koya |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
That the application filed 18 August 2008 is dismissed.
That the Applicant pay the Respondent costs, fixed in the sum of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1014 of 2008
| MZYBW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is an application for judicial review of the decision of the minister under s.417 of the Migration Act 1958 ("the act").
The jurisdiction of the courts to judicially review decisions made by ministers of the government, and government departments, derives from the Constitution.
The High Court has original jurisdiction in these matters and the Constitution provides that the parliament may confer jurisdiction in these matters on other courts. In this respect, a significant part of the jurisdiction with relation to migration and refugee matters has been conferred upon the Federal Magistrates Court.
However, the power to judicially review decisions of the minister under s.417 has not been conferred on the Federal Magistrates Court. This much is plain from the operation of s.476 and s.474 of the Act.
As a result, it is clear that I do not have jurisdiction to issue a constitutional writ with respect to the decision that the applicant seeks to review. That power, it seems, only resides with the High Court.
In these circumstances, it is not appropriate for me to continue to hear or deal with the matter. It is not a matter that I have power to transfer, as I do not have power to transfer matters directly to the High Court. In the circumstances, the appropriate course is for me to dismiss the current application, and, should the applicant wish to pursue the matter, he will have to do so in the court that has the appropriate jurisdiction.
I therefore order that the application be dismissed.
The applicant opposes a costs order on the basis that he has little or no money from which to pay it.
The proceedings that have been brought by him were wholly unsuccessful, and commenced in the wrong court, and the proceedings are not the first proceedings that the applicant has brought with respect to his application for refugee status and a protection visa.
The applicant has been unsuccessful in his challenges to the RRT, those challenges being appealed all the way to a special leave application in the High Court, and he has previously been unsuccessful in attempting to re‑litigate the matter in this court, reviewing a decision of the registrar and then appealing the decision to a Federal Magistrate.
The applicant has commenced proceedings again, this time against the minister under s.417, and again been unsuccessful. The grounds of the application do not appear, on their face, to show any real merit, in that the grounds are simply that it has not been proved to the applicant’s satisfaction that the Minister, or an authorised delegate, actually considered his application.
In the circumstances, I am not persuaded that costs ought not follow the event. Accordingly, in this case, the appropriate exercise of the discretion is that costs should follow the event. The costs sought are $1000, which is the scale fee. This is reasonable. I order that the applicant pay the respondent’s costs, fixed in the sum of $1000.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 16 October 2008
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