QAAB of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 643

FEDERAL COURT OF AUSTRALIA

QAAB of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 643

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)

Bedlington v Chong (1998) 87 FCR 75
NAJT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 966; [2002] FCAFC 420

QAAB OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Q29 OF 2004

COOPER J
BRISBANE
24 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q29 OF 2004

BETWEEN:	QAAB OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	24 MAY 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application filed on 11 February 2004 is dismissed.

2.The applicant pay the respondent’s costs of and incidental to the application, 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	Q29 OF 2004

BETWEEN:	QAAB OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	COOPER J
DATE:	24 MAY 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant is an Indonesian citizen.  He was born in Irian Jaya.  He arrived in Australia on 1 October 2000 on a visitor’s visa. 

2. On 8 October 2001, the applicant applied for a Protection (Class XA) visa.  His application was refused on 15 March 2002.  On 11 February 2003, the Refugee Review Tribunal affirmed the decision to refuse the grant of the Protection (Class XA) visa to him.

3. On 19 December 2003, the applicant wrote to the respondent Minister, a letter which included the following:

   ‘I write to seek the exercise of your discretion under S48B in my case.

   I submit that my situation is an appropriate case for the exercise of Ministerial discretion, however, you decide not to exercise your discretion in my case. I request that you allow me to lodge a second protection visa application under Section 48B of the Migration Act 1958 on the basis that there is new information that proves I will be subject to persecution if I am returned to Papua New Guinea. Please see statement enclosed. This evidence was not available neither to the RRT at the time of decision resulting in the member’s finding that such an event was unlikely nor to you when I applied for your intervention in my case.’

4. On 30 January 2004, an officer of the Department of Immigration and Multicultural Affairs wrote to the applicant a letter, which included the following:

   ‘Thank you for your letter of 19 December 2003 requesting that the Minister consider exercising her ministerial discretion under section 48B of the Migration Act 1958.

   Under this section of the Migration Act, the Minister may allow a person to make a further application for a Protection Visa if she 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 s.48B.’

5. On 11 February 2004, the applicant filed in this Court an application under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) (‘the Migration Act’) seeking review of the decision communicated to him on 30 January 2004. 

6. On 8 April 2004, the respondent filed a notice of objection to competency in this Court. The ground specified in the notice was that s 476(2) of the Migration Act provided that this Court did not have jurisdiction in respect of a decision of the respondent not to exercise or not to consider the exercise of her power under s 48B of the Migration Act.  Although the applicant had the benefit of advice from pro bono counsel, he appeared and represented himself on the hearing of his application.

7. The applicant, having made an application for a protection visa which was refused, could not without a determination of the Minister under s 48B of the Migration Act bring a further application for a protection visa:  s 48A.

8. Section 48B of the Migration Act, so far as is presently relevant, provides:

   ‘48B    Minister may determine that section 48A does not apply to non-citizen

   (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.

   (2)The power under subsection (1) may only be exercised by the Minister personally.

   (3)If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

   (a)sets out the determination; and

   (b)sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

   (4)      A statement under subsection (3) is not to include:

   (a)the name of the non-citizen; or

   (b) any information that may identify the non-citizen; or

   (c)if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned - the name of that other person or any information that may identify that other person.

   (5)A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after:

   (a)if the determination is made between 1 January and 30 June (inclusive) in a year - 1 July in that year; or

   (b)if the determination is made between 1 July and 31 December (inclusive) in a year - 1 January in the following year.

   (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.’

9. Ministerial guidelines have been issued dealing with requests for s 48B Ministerial intervention. As appears from par 148.1 of the guidelines, they are to be used by case managers when considering whether to forward to the Minister cases that he may wish to consider using his non-compellable and non-delegable power to allow a person to make a further protection visa application. One of the circumstances relevant under the guidelines relates to claims to intervention based on the availability of further material in support of a claim for a protection visa. Those provisions are contained in par 152. Where the application does not fall within the guidelines, the direction is that the application should not be forwarded to the Minister, and that the case manager must send a standard ‘no’ letter to the applicant: see par 155.2.

10. It is clear on the materials before me that that is what occurred in the case of the applicant’s application for intervention under s 48B of the Migration Act, and I so find.

11. The decision communicated to the applicant in the letter of 30 January 2004, is the decision of the respondent and it is a decision not to exercise the respondent’s power under s 48B of the Migration Act:  see Bedlington v Chong (1998) 87 FCR 75 at 80 - 81 (FC).

12. Section 476(2) of the Migration Act deals with the jurisdiction of this Court in respect of a decision of the respondent not to consider the exercise of the respondent’s power under s 48B of the Migration Act. Section 476(2) provides:

    ‘476(2) Despite any other law (including section 483A, sections 39B and 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 and section 39 of the Federal Magistrates Act 1999), the Federal Court and the Federal Magistrates Court do 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 subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 345, 351, 391, 417 or 454 or subsection 503A(3).’

13. The effect of s 476(2) of the Migration Act is to preclude this Court from embarking on any review of the decision in question.  There is simply no jurisdiction to do so:  see NAJT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 966 at pars 11 - 13; on appeal [2002] FCAFC 420 at par 2 - 3.

14. In the circumstances this Court has no jurisdiction to entertain the application brought by the applicant, and accordingly it must be dismissed.

15. Costs should follow the event.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:
Dated:             24 May 2004

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	S J Lee
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 May 2004
Date of Judgment:	24 May 2004