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

[2002] FCA 1197

FEDERAL COURT OF AUSTRALIA

NARJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1197

NARJ of 2002; NARK of 2002; NARL of 2002; NARM of 2002; NARN of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 833 of 2002

SACKVILLE J
SYDNEY
25 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 833 OF 2002

BETWEEN:

NARJ of 2002
FIRST APPLICANT

NARK of 2002
SECOND APPLICANT

NARL of 2002
THIRD APPLICANT

NARM of 2002
FOURTH APPLICANT

NARN of 2002
FIFTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

25 SEPTEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed as incompetent.

2.The adult applicants 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	N 833 OF 2002

BETWEEN:

NARJ of 2002
FIRST APPLICANT

NARK of 2002
SECOND APPLICANT

NARL of 2002
THIRD APPLICANT

NARM of 2002
FOURTH APPLICANT

NARN of 2002
FIFTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	SACKVILLE J
DATE:	25 SEPTEMBER 2002
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The respondent (“the Minister”) has filed a Notice of Objection to Competency in proceedings instituted in this Court.  The question is whether the Court has jurisdiction to hear and determine the proceedings.

2. The adult applicants are husband and wife.  The application also names their three children as parties.  The husband is said to be a citizen of Tonga, while the wife and children are said to be citizens of Papua New Guinea.  The applicants are not legally represented.  No application has been made for the appointment of a tutor for the children.

3. On 12 August 2002, an application was filed in this Court, apparently pursuant to s 39B(1) of the Judiciary Act 1903 (Cth), seeking to review “a decision of the delegate given on 23 July 2002”. An affidavit accompanying the application identifies the decision under challenge as that given by a delegate of the Minister on 5 August 2002. The explanation for the apparent inconsistency in dates is that on 23 July 2002 the Minister personally signed a document stating that that he did not propose to consider the exercise of the power conferred on him by s 417 of the Migration Act 1958 (Cth) (“Migration Act”) in relation to the applicants.  The letter to the applicants communicating the Minister’s decision not to consider the exercise of his power was dated 5 August 2002.

4. Section 417(1) of the Migration Act empowers the Minister personally, if he thinks it in the public interest to do so, to substitute for a decision of the Refugee Review Tribunal (“RRT”) made under s 415 another decision more favourable to the applicant, whether or not the RRT had power to make that other decision. Section 417(7) provides as follows:

   “(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

5. Section 476(2) of the Migration Act provides as follows:

   “(2)     Despite any other law (including…sections 39B and 44 of the Judiciary Act 1903 [and] section 32AB of the Federal Court of Australia Act 1976…, the Federal Court [does] 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 417…”.

6. In brief, the history of the matter is as follows. On 2 May 2002, a letter was sent to the Ministerial Intervention Unit on behalf of the adult applicants requesting the Minister to exercise his discretion under s 417(1) of the Migration Act in their favour. It appears that the applicants satisfied the prerequisite implicit in s 417(1) of the Migration Act, since they (or at least one of them) had applied unsuccessfully to the RRT for review of a decision of a delegate of the Minister to refuse an application for a protection visa. As I have said, on 23 July 2002, the Minister made the decision not to consider the exercise of his power under s 417(1). On 5 August 2002, that decision was communicated to the applicants.

7. It seems clear that s 476(2) of the Migration Act withdraws from this Court any jurisdiction that otherwise might exist, whether under s 39B(1) of the Judiciary Act or some other law, to review a decision of the Minister not to consider the exercise of his powers under s 417(1) of the Migration Act. It is not necessary to consider whether the Minister’s decision not to consider the exercise of his powers is a “privative clause decision” within the meaning of s 474(2) of the Migration Act, since the withdrawal of jurisdiction effected by s 476(2) is not confined to such a decision: cf s 476(1) and the definition of “primary decision” in s 476(6).

8. It follows that the application is incompetent and must be dismissed.  The Minister does not seek any order for costs against the children.  The adult applicants must pay the Minister’s costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE .

Associate:

Dated:            25 September 2002

The applicant was not represented.

Solicitor for the Respondent:	Mr G Cranwell appeared on behalf of the Australian Government Solicitor
Date of Hearing:	25 September 2002
Date of Judgment:	25 September 2002