S395 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 354

FEDERAL COURT OF AUSTRALIA

S395 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 354

MIGRATION – application for review of a decision of the Minister for Immigration and Multicultural and Indigenous Affairs not to exercise powers under s 417 of the Migration Act – application dismissed for want of jurisdiction

S395 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1827 OF 2004

MOORE J
15 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1827 OF 2004

BETWEEN:	S395 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	15 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed for want of jurisdiction.

1. The applicant pay the respondent's costs.

1. Costs be fixed in the sum of $2000.

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	NSD 1827 OF 2004

BETWEEN:	S395 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	15 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex tempore – revised)

1. I am presently dealing with proceedings remitted to this Court by a judge of the High Court by order made on 1 November 2004. The application was filed in the High Court on 7 October 2004. It appears that the proceedings are ones in which the applicant seeks constitutional writs against the respondent in relation to a request by the applicant that the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") exercise the powers under s 417 of the Migration Act 1958 (Cth) ("the Act") in favour of the applicant.

2. By letter dated 5 May 2004 the Acting Minister informed the applicant of the following:

   After considering your case, I have decided not to exercise my public interest power.

3. Under s 417, the Minister can refrain from considering to exercise the powers under s 417(1) (see s 417(7)) or can exercise them by substituting or deciding not to substitute a more favourable decision. The impression I have from other proceedings involving this section is that the Minister often refrains from considering to exercise the powers or exercises them and substitutes a more favourable decision. In the present case, the Minister appears to have considered exercising the powers but decided not to exercise the power to substitute a more favourable decision. Section 476(2) of the Act provides that this Court does not have jurisdiction in respect of, amongst other things, the decision of the Minister not to exercise power under section 417.

4. By operation of that subsection any jurisdiction the Court otherwise may have had has been confined.  The Minister makes the point, in my view correctly, that the Court has no jurisdiction to hear and determine this application.

5. Accordingly, it is appropriate to order that the application be dismissed for want of jurisdiction.

6. I order that the applicant pay the respondent's costs fixed in the sum of $2000.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             8 April 2005

The Applicant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	15 March 2005
Date of Judgment:	15 March 2005