Ponnuswamy v Minister for Immigration and Multicultural Affairs

[2002] FCA 938

FEDERAL COURT OF AUSTRALIA

Ponnuswamy v Minister for Immigration & Multicultural Affairs [2002]
FCA 938

MIGRATION – application for an order to review decision refusing the grant of a re-entry visa to applicant – whether pursuant to new Part 8 of the Migration Act 1958 (Cth) the Court has jurisdiction where applicant has failed to exercise a right of merits review – applicant not present to prosecute application – Migration Act 1958 (Cth) applies only to non-citizens – no question that applicant was unaware of time and hearing of application

Migration Act 1958 (Cth), Part 8
The Constitution, subs 51(xix) and (xxvii)

NADAR PONNUSWAMY and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No Q 5 of 2002

SPENDER J
BRISBANE
26 JULY 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 5 OF 2002

BETWEEN:	NADAR PONNUSWAMY APPLICANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	26 JULY 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application be dismissed. 

2.The applicant pay the respondent's costs, including any reserved costs, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 5 OF 2002

BETWEEN:	NADAR PONNUSWAMY APPLICANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SPENDER J
DATE:	26 JULY 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application for an order to review a decision by the respondent, the Minister for Immigration and Multicultural Affairs, to refuse to grant a re-entry visa to the applicant, Mr Nadar Ponnuswamy.  Mr Ponnuswamy claims a denial of natural justice and seeks the issuing of a re-entry visa.  It is not at all clear what is in fact the decision under review, the scope of the application, and the legislative basis which would allow the Court to review the relevant decision.  It is crucial to note that Mr Ponnuswamy holds an Australian passport.  He was granted Australian citizenship on 20 April 1974.

2. Following significant amendments to the Migration Act 1958 (Cth) (“the Act”) limiting the Federal Court’s jurisdiction in relation to migration decisions, the Court does not have jurisdiction to deal with matters where a person has failed to exercise a right of merits review which is open to that person: see the new Part 8 of the Act. On that basis, Deputy District Registrar Baldwin suggested to Mr Ponnuswamy that he approach the Migration Review Tribunal to explore the possibility of review by that Tribunal, which he declined to do. The application for an order of review was subsequently accepted by the Court for filing on 11 January 2002. However, the Act deals with decisions concerning the grant of, or refusal to grant, visas to non-citizens; the Act does not contemplate the grant of visas to Australian citizens.

3. The matter came before the Court for the first time on 15 February 2002.  Mr Ponnuswamy was not present at this hearing, so I adjourned the matter for further directions to 27 February 2002.  Mr Ponnuswamy appeared on that date, and I directed the Minister to make inquiries concerning the nature of the application and the reasons why Mr Ponnuswamy was not issued with a visa in the present case, where he had been in the past, and to explain to Mr Ponnuswamy the reasons for the refusal of the visa.  I directed the Minister to provide copies of past visas and any other relevant documentation to the Court.

4. Documents lodged by Mr Ponnuswamy with the Court on 27 February 2002 were not accepted for filing by the Court.  Mr Ponnuswamy was advised of this on 7 March 2002 by letter from Deputy District Registrar Reynolds.  The documents which Mr Ponnuswamy sought to have received were a covering letter, an application naming the Prime Minister, opposition parties, one-sided journalists and the media as respondents, an application for fee exemption or waiver, a two page affidavit which referred to additional respondents including the Queen, the Governor-General and the leader of the opposition, a copy of an amended affidavit which appeared to have been filed in either New South Wales or South Australia, and a bundle of miscellaneous documents.  These documents were not accepted for filing on the basis they were illegible and that the details of any claims, the relief sought and the jurisdictional basis of each of the claims was not apparent. 

5. On 3 May 2002 the matter was again before me, at which time I gave trial directions.  I directed Mr Ponnuswamy  to file and serve an outline of submissions by 12 July and the Minister to file and serve an outline of submissions by 22 July, with liberty to apply on three days notice.  I ordered that the costs of that day be costs in the proceedings and listed the matter for hearing at 11 am today, 26 July 2002.

6. Mr Ponnuswamy did not comply with this direction to file and serve an outline of submissions and has not appeared to prosecute his application today. Consequently, the matter should be dismissed for want of prosecution. I should also indicate that there are real questions as to whether there is jurisdiction in the Court to entertain Mr Ponnuswamy's application, and further, it seems that the scheme of the Act is such that a system of visas for entry into and stay in Australia applies only to non-citizens. This appears as a matter of construction of the Act and as a matter of the constitutional heads of power of the Commonwealth parliament: subs 51(xix) and (xxvii) of the Constitution.

7. There are other grounds on which Mr Ponnuswamy would face severe difficulty. The decision which he seeks to impugn seems to be subject to the privative clause in s 474 of the Act, with the consequence that there is no room for judicial review of that decision. It is unnecessary to reach a final conclusion on any aspect of the merits of the matter in the light of the failure by Mr Ponnuswamy to prosecute his appeal. I should say that this is the second time he has failed to appear before the Court at the designated time on this matter. On a previous occasion, 3 May 2002, the Court had made orders which it vacated on the late appearance of Mr Ponnuswamy.

8. On this occasion there can be no room for doubting that Mr Ponnuswamy was aware of the date and time of the hearing of his application.  The matter was listed at 11 am, specifically at Mr Ponnuswamy’s request, to accommodate the possibility of his travelling by train to Brisbane for the hearing. 

9. For the above reasons, I make the following orders:

   1.The application be dismissed. 

   2.The applicant pay the respondent's costs, including any reserved costs, to be taxed if not agreed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             1 August 2002

There was no appearance by the applicant
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	26 July 2002
Date of Judgment:	26 July 2002