NAOB of 2002 v Minister for Immigration

[2007] FMCA 1874

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOB of 2002 v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1874

MIGRATION – Application for summary dismissal – where applicant sought review of decision made by Ministerial Intervention Unit not to pass on to Minister request under s.417 Migration Act 1958 – whether privative clause decision – whether court has jurisdiction.

Migration Act 1958, ss. 48B, 417, 474(1),(2),(7), 476(2), 476A(1)

SZFDZ v Minister for Immigration [2006] FMCA 717
SZFDZ v Ministerfor Immigration [2006] FCA 974
Raikua v Ministerfor Immigration [2007] FCA 370
S1083 of 2003 v Minister for Immigration [2004] FCA 1455

Applicant: APPLICANT NAOB of 2002

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2816 of 2007

Judgment of: Raphael FM

Hearing date: 26 October 2007

Date of last submission: 26 October 2007

Delivered at: Sydney

Delivered on: 26 October 2007

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $1,500.00.

   
   
   

THE COURT NOTES THAT costs include the filing fee for the Notice of Motion.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2816 of 2007

APPLICANT NAOB OF 2002

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 12 September 2007 the applicant commenced proceedings in this Court seeking review of a decision made by the manager of the Ministerial Intervention Unit of the first respondent not to pass onto the Minister his request that the Minister consider his application made under s.417 of the Migration Act 1958 (“the Act”) to substitute a more favourable decision to that of the Refugee Review Tribunal which had been the subject of an unsuccessful application to this Court in 2005.

2. The applicant also indicated in his application that the department had failed to assess the application under s.48B of the Act. Unfortunately, I do not have a copy of the application so I cannot say whether or not it was assessed under that subsection but, I think, in the end that does not matter.

3. On 3 October 2007 the respondents filed a response and a notice of objection to competency. It was their submission in that notice that the refusal under s.417 was a privative clause decision as mentioned in s.474(7)(a) of the Act and that pursuant to s.476(2)(d) this court did not have jurisdiction in relation to that decision.

4. The subsections to which I have just referred are familiar. They have been referred to in a number of cases, both in this court and in the Federal Court, and they define a privative clause decision and then say that such decisions cannot be challenged in any Court. Two of the decisions defined in subs.474(7)(a) are decisions under s.48B and s.417. A case identical to the one before me was heard by Driver FM; SZFDZ v Minister for Immigration [2006] FMCA 717 where the applicant had the advantage of the assistance of counsel appearing as amicus curiae. His Honour came to the view at [4]:

   “There is, in my view, no doubt that the Court lacks jurisdiction under the Migration Act to entertain this application.”

5. The decision of Driver FM was appealed to the Federal Court where the matter was heard by Moore J; SZFDZ v Ministerfor Immigration [2006] FCA 974. At [8] his Honour said:

   “It is not apparent to me that there was any error in the Federal Magistrate's decision.  For the reason advanced by the Minister, the applicant would have no prospects of success in any appeal.  Leave to appeal is refused”.

6. The decision of Moore J in that matter is the latest on the current wording of the Act but the matter was also considered by Lindgren J in Raikua v Ministerfor Immigration [2007] FCA 370 (“Raikua”) where his Honour dealt with a similar application under the previous wording and came to the same view following an early decision of Moore J in S1083 of 2003 v Minister for Immigration [2004] FCA 1455. Of S1083 of 2003, his Honour said in Raikua at [58]:

   “It follows from that above analysis that whether the former s.476(2) alone applies, or the position is governed by the present s.474(1), (2) and (7), s 476A(1) and s 476(2), the reasoning of Moore J in S1083 of 2003 is applicable.”

   The decision of Moore J in S1083 of 2003 was to the same effect as his Honour's decision in SZFDZ.

7. In the light of this authority which seems to bind a decision in respect of s.48B as well as s.417, I am confident in finding that the substantive application is one in respect of which this court has no jurisdiction and should be dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  15 November 2007