NAIDU v Minister for Immigration

[2003] FMCA 539

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAIDU v MINISTER FOR IMMIGRATION [2003] FMCA 539

MIGRATION – Visa – Visa cancellation – where applicant seeking to obtain discovery of documents held by DIMIA in relation to the decision made to cancel applicant’s visa – whether preliminary decision as to who will exercise the power under s.501(2) Migration Act is made by a delegate, and hence reviewable, or by the Minister.

Migration Act 1958 (Cth), ss.500, 501
Judiciary Act 1903 (Cth), s.39B

Applicant: VIJENDRA NAIDU

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 364 of 2003

Delivered on: 28 November 2003

Delivered at: Sydney

Hearing date: 28 November 2003

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Yandell Wright Stell Lawyers

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Notice of Motion dismissed.

2. The applicant to pay the respondent’s costs assessed in the sum of $1,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Courts Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 364 of 2003

VIJENDRA NAIDU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant seeks by way of notice of motion certain documentation relating to certain procedures pursuant to which a decision under s.501 of the Migration Act 1958 (Cth) was made in respect of the applicant.

2. The documents sought are:

   (a)Copies of any document, e-mail or file note which is evidence of the advice from the Minister for Immigration & Multicultural & Indigenous Affairs to Keith Anderson, or any officer of employee of the Department of Immigration & Multicultural & Indigenous Affairs, in relation to the cancellation of the Applicant’s visa.

   (b)Copies of any document, e-mail or file note which was sent by Keith Anderson, or any other officer or employee of the Department of Immigration & Multicultural & Indigenous Affairs, to the Respondent in relation to the cancellation of the Applicant’s visa.

   (c)Copies of any recordings of correspondence in or out of the Minister for Immigration & Multicultural & Indigenous Affairs’ office in relation to the cancellation of the Applicant’s visa.

   An additional matter is raised by paragraph 2 of the Notice of Motion which requests an order that the respondent file and serve an answer to the following question:

   (a)In what matter did the Minister for Immigration & Multicultural & Indigenous Affairs advice Keith Anderson, or any other officer or employee of the Department of Immigration & Multicultural & Indigenous Affairs that he will be personally making a decision to cancel the applicant's visa?

3. The applicant argues that before a decision to cancel a visa is made, there is a preliminary decision made in the Department as to who will exercise the power under section 501(2). If the power is exercised by a delegate of the Minister, then it is clear from s.500(1)(b) that there is a merits review of that decision by the Administrative Appeals Tribunal.

4. On the other hand, if the decision is made by the Minister personally, there is no such merits review. There is only review under s.39B Judiciary Act 1903 (Cth). The differences between these two reviews is considerable and it is understandable that an applicant would prefer to have his case considered by a delegate so that if he or she is unsatisfied by the delegate's decision he or she could try again before the Tribunal.

5. Mr Turner, who appears on behalf of the applicant, argues that it is important to know who made this first preliminary decision.  He agrees that if the decision was made by the Minister then that is the end of the matter.  There is no review.  But if the preliminary decision was made, not by the delegator but by the delegatee, then he argues, such a decision is open to review. 

6. I accept that there may be some vice in a decision of this type being made by the delegatee but I am not convinced that it can be established that this could possibly happen and I am particularly unconvinced that it could be established by the production of the documents sought under this notice of motion.

7. The Minister is the head of the department.  The ultimate responsibility for all decisions within the department rests with the Minister.  Even if a list was drawn up by a delegate containing names whose cases should be considered by the Minister, it is always open to the Minister to reject that list.  In the end, the decision is one that is being made by the Minister.  The Minister decides both to accept the recommendation, if such is made, of the delegate that he or she should personally consider a particular case and then considers it.

8. Whilstsoever the Minister retains the power to decline to accept a recommendation of his delegate, then it can only be said that the final decision rests with him or her.  In these circumstances, I cannot see any utility in obtaining discovery of the documents required by Mr Turner or requiring the Minister to answer the question set by him. 

9. I dismiss the Notice of Motion and I order that the applicant pay the respondent's costs which I assess in the sum of $1,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: