STJB v Minister for Immigration
[2007] FMCA 716
•16 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STJB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 716 |
| MIGRATION – Application under s.476 of the Migration Act 1958 for declarations and injunctions – Minister declines to exercise power pursuant to s.417 of the Migration Act 1958 – applicant contends decision can be attacked collaterally pursuant to s.198(6) of the Migration Act 1958 – Court has no jurisdiction to determine the application. |
| Migration Act 1958, ss.5E, 198, 417, 474 and 476 Australian Constitution, s.75(iv) |
| Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 O’Grady v Northern Queensland Co. Ltd (1990) 169 CLR 356 |
| First Applicant: | STJB |
| Second Applicant: | SBDF |
| Third Applicant: | SBBF |
| Fourth Applicant: | SBCF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG186 of 2006 |
| Judgment of: | Lindsay FM |
| Hearing date: | 24 November 2006 |
| Date of Last Submission: | 24 November 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 16 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Solicitors for the Applicant: | McDonald Steed McGrath |
| Counsel for the Respondents: | Mr Roder |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Amended Application filed on 20 November 2006 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG186 of 2006
| STJB |
First Applicant
| SBDF |
Second Applicant
| SBBF |
Third Applicant
| SBCF |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application under s.476 of the Migration Act 1958 (Cth) (hereinafter “the Act”) for declarations and injunctions. Pursuant to s.476(1) the Federal Magistrates Court has the same original jurisdiction in relation to Migration decisions as the High Court has under paragraph 75(iv) of the Constitution.
The applicants sought a protection visa when they arrived in Australia in July 2000 and October 2000 respectively. In October 2001 a delegate of the Minister refused to grant the protection visa.
A review of that decision before the Refugee Review Tribunal was unsuccessful. That was in October 2003.
An application for judicial review of that decision in the Federal Court was refused by Selway J in July 2004.
An appeal to a Full Court of the Federal Court was rejected by that Court in February 2005.
An application for special leave to appeal was refused by the High Court in December 2005.
On 11 January 2006 the applicants’ solicitor wrote to the Minister asking her to exercise her discretion under s.417 of the Act in their favour.
Section 417(1) of the Act provides:
If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
The Minister by letter dated 1 June 2006 notified the applicants of her decision not to exercise her powers under s.417 in their case.
Section 198(6) of the Act provides:
An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the not-citizen is a detainee;
(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone;
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined; or
(ii) the visa cannot be granted; and
(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
The first difficulty for the applicants arises from a consideration of s.476(2)(d) of the Act that provides:
(2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a)…
(b) …
(c) …
(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
Section 474 of the Act provides:
(1) A privative clause decision:
(a) is final and conclusive;
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court;
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) …
(4) …
(5) …
(6) …
(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):
(a) 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, 195A, 197AB, 197AD, 351, 417 or 454 or subsection 503A(3);
(b) …
(c) …
(d) ….
A purported privative clause decision is defined in section 5E(1) of the Act as follows:
In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there was not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction,
in the making of the decision.
The effect of all of these provisions is that this Court does not have the power to review a decision made under s.417 of the Act. So much is conceded by the applicants in so far as granting a remedy directly against such a decision is concerned.
Nothing said by the High Court in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 has any bearing on the powers of this Court pursuant to s.476 of the Act (see footnote 5 to that judgment).
Once the High Court declined to grant special leave (see paragraph
6 hereof) the applicants were liable to be removed from Australia pursuant to s.198(6) of the Act.
The applicants say that a necessary pre-condition to the removal of them under s.198(6) has not been fulfilled. They say that no decision (ie. no decision not affected by jurisdictional error) has been made under s.417. So we are back to where we left off. This apparent circularity is said to be an instance of a collateral challenge to the exercise of power under s.417.
The principal issue is in simple terms what does s.476(2) mean, when it says that this Court has “no jurisdiction in relation to” such a decision?
A secondary issue is that raised by the decision of Mansfield J in SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No.4) [2004] FCA 104. In that case His Honour considered the meaning of “finally determined” in s.198(6) in the context of an application to the Minister under s.417. He found that the existence of the power under s.417 did not constitute a form of review. A contention based on the visa application not being “finally determined” was rejected as not reasonably arguable. The applicants say that such decision can be distinguished in that the Minister in the case determined by Mansfield J had not actually made a decision under s.417, which is of course not the case here.
A third issue – as to whether the removal under s.198(6) was or would be “reasonably practical” - was also sought to be argued, though the particulars supporting such a contention were never presented. The Amended Application filed on 20 November 2006 appeared to agitate this issue as a discrete ground of jurisdictional error but the particulars of claim filed on the same day were silent on this topic. The “reasonably practical” argument would appear to be bound up with the applicants’ collateral challenge argument in relation to s.417. The decision of Besanko J in Beyazkilinc v The Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368, especially at [40]-[46], would appear to present difficulties to any challenge to a factual reference or determination made as to the reasonably practicality of removal when no allegation of jurisdictional error in relation to that specific decision is made. Besanko J found that the question of reasonably practicality is not a jurisdictional fact. Here, no particulars are provided of any jurisdictional error associated with any conclusion of a part of an immigration officer as to the reasonable practicality of the removal of the applicants.
The applicants conceded that the effect of s.476(2) was that no injunction or declaratory relief could be sought in relation to the exercise of the power of the Minister under s.417 unless the exercise of such power could be attacked collaterally under s.198(6). The powers of the Federal Magistrates Court to grant injunctions and declarations are described in ss.15 and 16 respectively of the Federal Magistrates Act 1999. They are not an independent source of jurisdiction but are intended to be exercised in respect of matters already within the jurisdiction of the Court. I did not understand the applicants to be suggesting that the injunctive and declaratory powers could be exercised independently.
The argument put about s.198(6) and the issue of whether the visa application has been finally determined ineluctably resolves itself into a controversy as to whether the s.417 decision is valid or not valid, ie. whether it is affected by jurisdictional error. The s.198(6) controversy requires a decision being made “in relation to” the validity of the s.417 exercise of power and that is something which is expressly prohibited by the statute. I cannot determine the s.198(6) point in the way that it has been agitated by the applicants without making a decision that involves the exercise of jurisdiction in relation to the s.417 determination. Whether direct or collateral that is inevitably what I am being called upon to do.
Mr Roder, for the respondent, drew my attention to two decisions indicating that the expression “in relation to” is an expression of the widest import (see Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653 and O’Grady v Northern Queensland Co. Ltd (1990) 169 CLR 356 at 374). However, a logical reading of the language of s.476(2) indicates, in my view, that it is not intended that this Court exercise the jurisdiction it is being invited to do by the applicants in this case.
This Court has no jurisdiction to determine the application.
It is unnecessary for me to determine whether, if the Court had jurisdiction, I would be bound of Mansfield J in SAAK (supra) to hold that no issue arose as to the “final determination” of the s.417 application and I have already indicated that I do not understand the applicants to have pursued any discrete argument as to any jurisdictional error attendant upon the issue of reasonably practicality in s.198(6). At the very least, no particulars in relation to such an argument were put forward.
The application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 16 May 2007
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