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

[2002] FCAFC 414

FEDERAL COURT OF AUSTRALIA

NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 414

NAQG of 2002  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 857 of 2002

WILCOX, SPENDER and RYAN JJ
5 DECEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 857 of 2002

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	NAQG of 2002 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGES:	WILCOX, SPENDER and RYAN JJ
DATE OF ORDER:	5 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal, to be taxed in default of agreement.

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	N 857 of 2002

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	NAQG of 2002 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGES:	WILCOX, SPENDER and RYAN JJ
DATE:	5 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from an order made by Branson J on 12 August this year dismissing an application by the appellant.  That application was cast in these terms;

   “Application to review a decision of the delegate given on 18 July 2002. 

   The applicant is aggrieved by the decision because;

   The decision was bad and incorrect and involved error of law. 

   (1)      The delegate was not acting in good faith in making the decision.

   (2)An exercise of discretionary power in bad faith by delegate in the making of the decision.

   (3)The delegate failed to take into consideration the rights of the child under UN Declaration of the Rights of the child.

   (4)Hastily implemented legislation under Migration Act pursuant to ss 474, 475 and 476 that reactively overturns court decisions to prevent one class of people having access to judicial review is totally unconstitutional.

   (5)The changes to Migration Act 1958 by the Federal Parliament under ss 474, 475 and 476 involved a matter arising under the constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act 1903.

   (6)That the rights of the applicant have abolished by reason of s 474 the right to have a poor decision checked by an independent umpire according to law.

   (7) That the decision involves s 39B the Judiciary Act 1903.”

2. The decision claimed to have been made by the so-called “delegate” was apparently that said to be implied by the following letter to the appellant dated 18 July 2002;

   “Thank you for your letter of 4 July 2002 to the Minister for Immigration and Multicultural and Indigenous Affairs, the Hon Philip Ruddock MP, requesting that he consider exercising his ministerial discretion under section 48B of the Migration Act 1958 in your case. 

   Under section 48B of the Act, the Minister may allow a person to make a further application for a protection visa if he considers it is in the public interest to do so.

   Your request for the exercise of the Minister’s power under section 48B of the Migration Act was assessed against the Minister’s Guidelines for Purported Further Applications for a Protection Visa subject to S48B and Requests for Ministerial Intervention under S48B. However, your case did not meet these Guidelines, and will not be referred to the Minister for consideration under section 48B.

   Thank you for bringing this matter to attention. 

   Yours sincerely,

   Francesca Allegritti,
   Ministerial Interventions Unit,
   On-Shore Protection, NSW”

3. Section 48B of the Migration Act 1958 (“the Act”) provides by subs (1) and subs (6);

   “(1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

   …… …

   (6)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.”

4. Her Honour apparently thought that this Court was precluded by subs 476(2) of the Act from entertaining the application. That subsection provides that, despite any other law including s 483A of the Act, ss 39B and 44 of the Judiciary Act1903 (Cth), s 32AB of the Federal Court of the Australia Act 1976 (Cth) and s 39 of the Federal Magistrates Act 1999 (Cth), the Federal Court and the Federal Magistrates Court do not have any jurisdiction in respect of the decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subs 37A(2) or subs (3), s 48B [the section thought to be applicable here] par 72(1)(c), ss 91F, 91L, 91Q, 345, 351, 391, 417 or 454.

5. However, the learned primary Judge went on to observe in the final paragraph of her reasons for judgment;

   “In any event as Ms Warner who appeared for the Minister rightly submitted, s 48B(6) of the Act has the effect that the Court could not under s 39B of the Judiciary Act 1903 (Cth) or otherwise compel the Minister to give consideration to making a determination under s 48B(1) in favour of the applicant.”

6. There is no recognition in the Act or the regulations for the promulgation of any guidelines by the Minister for the processing of requests for the exercise of the Minister’s power under s 48B(1). Nor, unlike that conferred by other sections, is the power delegable in any respect to any person. That is not to say that the Minister may not, for reasons of administrative expediency, give directions as to how requests for the exercise of his power under s 48B(1) are to be received and processed within his Department. However, such directions will not constitute the departmental officers who implement them, the delegates of the Minister for the purpose of the application of general principles of administrative law.

7. We were referred by Mr Reilly of Counsel for the respondent to Bedlington v Chong (1998) 87 FCR 75 where another Full Court of this Court held that, so long as the Secretary had acted in accordance with guidelines which had been published by the Minister for determining whether any possible exercise of the power under s 48B(1) should be referred to him, the Secretary did not have to bring the application to the Minister’s attention and the Minister did not have to consider it.

8. However, their Honours said in the joint judgment at p 80;

   “In reaching that conclusion, of course, we should not be understood as saying that, if the Secretary was not acting in accordance with the guidelines, Ms Chong was entitled to any relief.  That is not a matter before us.  However, insofar as Ms Chong’s application for relief is based solely on the Secretary’s failure to bring Ms Chong’s application to the attention of the Minister or on any failure on the part of the Minister at this stage to consider her application, it should be dismissed.”

9. In the present case the evidence does not permit a finding as to whether the Minister’s guidelines were complied with.  However, for the reasons which we have explained there has been no decision which any conceivable respondent was under a duty to make.  On that narrow, but fundamental, point of administrative law the applicant’s application was bound to fail and the appeal must accordingly be dismissed.

10. We therefore find it unnecessary to say anything about whether the presumptive “decision” which seems in practice to have been made in this case was a privative clause decision within the meaning of s 474 of the Act.

11. The order of the Court will be that the appeal be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated:             5 December 2002

The Appellant appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 2002
Date of Judgment:	5 December 2002