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

[2002] FCA 1016

FEDERAL COURT OF AUSTRALIA

NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1016

NAQG OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 790 OF 2002

BRANSON J
12 AUGUST 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 790 OF 2002

BETWEEN:	NAQG OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	12 AUGUST 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT the application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 790 OF 2002

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

JUDGE:	BRANSON J
DATE:	12 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The application in this matter purports to seek review of a decision of a delegate of the Minister given on 18 July 2002.  By a letter dated 18 July 2002 the applicant was advised by an officer of the Department of Immigration & Multicultural & Indigenous Affairs that:

   “[y]our request for the exercise of the Minister’s power under s 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.”

2. The Minister has submitted that the application should be dismissed on the basis that this Court does not have the power to entertain the application and, even if it did, there is no remedy that the Court could provide to the applicant.

3. Section 48B(1) of the Migration Act 1958 (Cth) (“the Act”) empowers the Minister to determine, in effect, that a non‑citizen may make a second application for a protection visa. Section 48B(6) provides:

   “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. Section 476(2) of the Act relevantly provides:

   “Despite any other law (including … s 39B … of the Judiciary Act 1903 …), the Federal Court … do[es] 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 ….”

5. Although Mr Fonua, who with leave represented the applicant today, asserted that s 476(2) of the Act is unconstitutional, he advanced no argument based on constitutional law in support of this assertion. The difficulties of construction that attend s 474 of the Act by reason of the terms of s 475A and other sections of the Act which reach to decisions made on review by a Tribunal do not affect s 476(2).

6. 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.

7. The application is dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            12 August 2002

Counsel for the Applicant:	The applicant appeared in person with the assistance of Mr George Fonua
Counsel for the Respondent:	Ms E Warner
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 August 2002
Date of Judgment:	12 August 2002