Singh v Minister for Immigration

[2005] FMCA 1875

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION [2005] FMCA 1875

MIGRATION – Visa – Application for review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs not to consider exercising her power to substitute for a decision of the RRT a decision more favourable to the Applicant.

PRACTICE & PROCEDURE – Objection to Competency – no jurisdiction – 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 of the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.471, 476

SZAWO & Anor v Minister for Immigration [2003] FMCA 432
SZBKT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1529
VAEA & Anor v Minister for Immigration [2002] FMCA 292
SZAAB v Minister for Immigration [2003] FMCA 20.

Applicant: GURMAIL SINGH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 18 of 2005

Delivered on: 13 December 2005

Delivered at: Sydney

Hearing date: 13 December 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Ms Alex

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Application is not competent.

2. The Application is dismissed.

3. The Applicant is to pay the Respondent’s costs fixed in the sum of $2,500.00.

4. I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 18 of 2005

GURMAIL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application without any merit at all. It is an application for an order to require the Minister for Immigration and Multicultural and Indigenous Affairs to substitute a more favourable decision for a decision of the Refugee Review Tribunal under the provisions of s.417 of the Migration Act 1958 (Cth).

2. The Court has no jurisdiction to make such an order. The Minister's solicitors have filed a Notice of Objection to Competency in which they assert, quite correctly, that the Court does not have jurisdiction to review the decision made by the Minister as section 476(2) of the Migration Act excludes jurisdiction of the Court in respect of a decision not to exercise or not to consider the exercise of the Minister's power under s.417 of the Act.

Background

1. The Applicant applied for a protection visa on 12^th October 1999. That application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 25^th November 1999. The Applicant sought a review of that decision by the Refugee Review Tribunal on 10^th December 1999. The Tribunal affirmed the delegate's decision on 6^th September 2000.

2. By means of a letter dated 9^th July 2003, a migration agent, one Anil Agnihotri, wrote to the Minister on the Applicant's behalf seeking an exercise of the Minister's discretion to substitute a more favourable decision under s.417 of the Migration Act. The Minister decided not to consider exercising her power to substitute a more favourable decision on 24^th June 2004. An officer from the Ministerial Intervention Unit wrote to the migration agent advising him of that decision on

   
   

   14^th September 2004. 

3. On 18^th October 2004 another migration agent, one Ram Ravi Singh Khalsa, made a submission to the Minister requesting a more favourable decision under s.417 “because the above-named client is waiting for a visa approval from the New Zealand Immigration Service”. The submission cited the hardships the Applicant would have to undergo if he were required to return to India before a decision was made by the New Zealand Immigration Service. Those hardships included the cost of the air tickets back to India and later from India to New Zealand.

4. Not content with that, the Applicant's migration agent also asked the Minister for her help “to expedite a decision by the New Zealand Immigration Service as there are many other people waiting for a decision”. Included with the submission was a copy of a letter from the New Zealand Immigration Service dated 8^th September 2004, which confirmed that the Applicant had applied for a residence visa in that country on 6^th November 2003. 

5. On 8^th December 2004 the Business Manager, Fraud Control and Compliance, one Megan Makinson, wrote to Mr Khalsa care of his business, which he chooses to call ‘Superior Migration’, advising him as follows:

   I understand that on 30 November 2004 on the basis of your letter to the Minister, Mr Singh was granted a Bridging Visa E, (BVE) that will cease on 11 January 2005. However as Mr Singh has already unsuccessfully requested that the Minister exercise her non compellable power under section 417 of the Migration Act 1958, your letter is a repeat request and is not permitted. In the circumstances as Mr Singh has no outstanding matters before the Department he will be expected to depart Australia no later than the expiry of his current BVE.

6. The Applicant did not depart Australia no later than the expiry of his Bridging Visa. Instead on 5^th January this year he filed his application with this Court in which he sought the following orders:

   a)That the Minister deal with my request as per s.417 of the Migration Act.

   b)That the Minister issues me with a Bridging Visa which will allow me to remain in Australia while the Minister decides my request.

7. On 28^th April 2005 the Applicant filed an Amended Application seeking review of the Minister's decision that was notified to him on 14^th September 2004. The details of the Amended Application are irrelevant.

Conclusions

1. The application is entirely without merit. Subsection 476(2) of the Migration Act makes it clear that 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 a number of sections including s.417.

2. A reading of the provisions of s.417 itself makes it obvious that the Minister's power is entirely discretionary as sub-section (7) provides:

   (7) The Minister does not have a duty to consider whether to exercise the power under sub-section (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.

3. The Applicant was not legally represented when he filed his application. On 19^th January 2005 Jack Singh, Solicitor & Associates, filed a Notice of Appearance and appeared for the Applicant before the Registrar when the application was listed for Final Hearing on

   
   

   7^th December 2005. That application of course was adjourned to today due to the inability of the Applicant to attend due to a back injury. Those solicitors filed a Notice of Ceasing to Act on 27^th June 2005.

   
   

   I presume that the Applicant's solicitors must have advised the Applicant during that period of five months that his case was hopeless. 

4. The question of course has been considered in a number of other decisions of this Court and of the Federal Court.  I refer to SZAWO and Anor v Minister for Immigration (2003) FMCA 432; SZBKT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1529; VAEA and Anor v Minister for Immigration (2002) FMCA 292, and SZAAB v Minister for Immigration (2003) FMCA 20.

5. It is regrettable that the Minister did not seek summary dismissal of the application long before today.

6. The Court has no jurisdiction to entertain the application. The application is not competent. The application will be dismissed with costs.

7. There is an application for costs in the sum of $2,500.00. That is well within the scale provided by the Federal Magistrates Court Rules. The Applicant says that he is not working and that is why he was unable to bring a solicitor with him today. I doubt that the solicitor would have been able to assist very much in the circumstances. The fact that an applicant has no funds is not a bar to the making of a costs order in favour of the successful party. It is a ground for considering time to pay.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  16 December 2005