NAJT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 966

FEDERAL COURT OF AUSTRALIA

NAJT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 966

NAJT OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N486 of 2002

MADGWICK J
11 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N486 OF 2002

BETWEEN:	NAJT OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	11 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be struck out as incompetent.

2.The applicant pay the respondent’s costs.

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	N486 of 2002

BETWEEN:	NAJT OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	11 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter, the applicant filed an application asserting that:

   “The decision of the [respondent Minister’s] delegate given on 8 May 2002 was incorrect and involve[d] a matter arising under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903.”

2. The grounds of the application were:

   “(1)The delegate who made the decision ... did not have jurisdiction to make the decision.

   (2)The delegate was not acting in good faith in making the decision and the Court can overturn the decision if it was carried out in bad faith.

   (3)That both requests under s 48B and 417 of the Migration Act were not brought to the Minister’s attention when the delegate made the decision.

   (4)The decision exceeded the limits set out in the Commonwealth Constitution.

   (5)The decision involved section 78B Judiciary Act 1903 and a Notice of Constitutional matters under section 78B to be [sic] prepared and filed.”

   Note: the abovementioned grounds are not specifically excluded from operation of s 474 of the Migration Act 1958 (Cth) (“the Act”).

3. An accompanying affidavit of the applicant was in much the same terms. Later an affidavit, sworn by Mr George Liufau Fonau, a Tongan interpreter, on 8 July 2002 and filed in these proceedings on the applicant’s behalf, asserted that the delegate’s decision “was not a bona fide attempt to exercise its power under the Act” on the bases:

   “(2)That the decision given by the delegate on 8 May 2002 was not a bona fide attempt to exercise its power under the Act was a ground for the decision to be challenged in the Court.

   ...

   (4)That the changes to the Migration Act pursuant to ss 474, 475 and 476 raises issues of deep constitutional sensitivity involving two basic principles – (a) the rule of law require[s] that any decision of government should be capable of being tested in a court of law. (b) both democratic theory and parliamentary sovereignty require the final arbiter of any issue in Australia must be the elected Parliament.”

4. Section 78B notices were ultimately served on all the Attorneys-General. None of them have indicated any interest in being represented in the proceedings.

5. The respondent has filed an objection to the jurisdiction of the Court to try the application “on the grounds that s 476(2) of [the Act] provides that the Federal Court of Australia does not have jurisdiction in respect of a decision of the Respondent not to exercise, or not to consider the exercise, of his power under s 48B and s 417 of the Act.

6. The applicant had some years ago, unsuccessfully applied for refugee status.  The present matter evidently concerns a letter of the delegate of the Minister addressed to the applicant dated 8 May 2002.  The letter was in response to a letter from Mr Fonau dated 15 April 2002 which requested that the Minister exercise his personal discretion to substitute “a decision more favourable to [the] applicants if it is in the public interest to do so”.  The applicants referred to were the present applicant and her young, Australian born, daughter.

7. Sections 48B of the Act permits the Minister to determine that a person who has made an unsuccessful application for a protection visa should be permitted to make a further

   
   
   

   application if the Minister considers that it is in the public interest to do so. Subsection 6 of s 48B provides however that:

   “the Minister does not have a duty to consider whether to exercise [his powers under the section], whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.”

8. Section 417 likewise permits the Minister to make a more favourable decision to an applicant for refugee status than has been made on review by the Refugee Review Tribunal (“the Tribunal”).

9. As to the s 48B matter, the delegate said that the applicant’s request had been assessed against the Minister’s “guidelines for purported further applications for a protection visa subject to s 48B and request for ministerial intervention under s 48B”. However, according to the delegate, the case did not meet these guidelines and “will not be referred to the Minister for consideration under s 48B”. The Minister’s powers under s 48B are exercised only by him personally.

10. As to the s 417 request, the delegate indicated that:

    “…your case has previously been brought to the Minister’s attention and he either decided not to consider it, or considered it but decided not to grant a visa.
    …
    The Minister has directed that, if a case has previously been brought to his attention because of a request for the exercise of his public interest powers, he does not wish to consider whether to exercise his power again, unless additional information is provided that, in combination with the information known previously, brings the case within his Guidelines (for the identification of cases where it may be in the public interest to substitute a more favourable decision for that of a review authority).

    Your case has been reassessed in the light of your recent letter.  It still does not fall within the Minister’s guidelines for referral to him. 

    Please note that these decisions do not include your daughter … as she was not included in your Protection visa application or Refugee Review Tribunal appeal.  However, you should be aware that your daughter does not hold a substantive visa for Australia.”

11. Section 476(2) so far as relevant provides:

    “Despite any other law (including...Sections 39B and 44 of the Judiciary Act 1903... the Federal Court and the Federal Magistrates Court do not have any jurisdiction in respect of a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under ... section 48B or...417...”

12. The Federal Court is entirely a creature of statute and has only the jurisdiction which statutes confer on it.  That which Parliament has conferred by one statute, can be withdrawn by another statute.  That appears to have been done here. 

13. In my opinion, the respondent’s objections are well-founded and the proceeding will be struck out as incompetent.  The applicant is to pay the respondent’s costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             6 August 2002

The Applicant appeared in person.
Solicitor for the Respondent:	Ms D Watson, Australian Government Solicitor
Date of Hearing:	11 July 2002
Date of Judgment:	11 July 2002