SZAWO v Minister for Immigration
[2003] FMCA 432
•11 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAWO & ANOR v MINISTER FOR IMMIGRATION | [2003] FMCA 432 |
| MIGRATION – Review of decision of the Minister not to consider substituting a more favourable decision for a decision of the RRT – the Court has no jurisdiction to review such a decision – objection to the competency of the application upheld. CONSTITUTIONAL LAW – Validity of ss. 474, 475 and 476 of the Migration Act 1958 (Cth) – no substance to notice under s.78B of the Judiciary Act 1903 (Cth). |
Federal Magistrates Court Rules 2001 (Cth)
Judiciary Act 1903 (Cth), s.78B
Migration Act 1958 (Cth), ss.415, 417, 474, 475, 476
Fonoi Fua v Minister for Immigration [2003] FMCA 48
NAAX v Minister for Immigration [2003] FCA 313
NARP v Minister for Immigration [2003] FCA 847
Re Minister for Immigration; ex parte Prosecutor S134/2002 (2003)
195 ALR 1
SZAAM v Minister for Immigration [2003] FMCA 219
SZAAM v Minister for Immigration [2003] FCA 917
First Applicant: Second Applicant: | SZAWO SZAWZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1193 of 2003 |
| Delivered on: | 11 September 2003 |
| Delivered at: | Sydney |
| Hearing date: | 11 September 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicants appeared in person
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application and the applicant’s motion are dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1193 of 2003
| SZAWO |
First Applicant
SZAWZ
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a notice of objection to competency filed on behalf of the Minister in these proceedings on 25 August 2003. The notice asserts that an application for review filed by the principal applicant in this matter on 27 June 2003 is incompetent. That application seeks judicial review of a decision notified to the applicants on 3 June 2003. That notification was a letter dated on that day from the Minister for Citizenship and Multicultural Affairs writing on behalf of the Minister for Immigration and Multicultural and Indigenous Affairs to advise the applicants that the Minister would not consider exercising his power under s.417 of the Migration Act 1958 (Cth) (“the Migration Act”) to substitute a more favourable decision for the decision of the Refugee Review Tribunal (“the RRT”).
The decision of the RRT was made on 15 May 1996 and was a decision that the RRT had no jurisdiction because the application to the RRT was made out of time. The Ministerial decision was that the power conferred on the Minister under s.417 was not available because no review of a visa decision had been undertaken under s.415 of the Migration Act. In his written submissions filed on 10 September 2003 Mr Lloyd, for the Minister, submits that the application for review must be dismissed because the Court has no jurisdiction to grant relief in respect of a decision under or relating to the exercise of power under s.417 of the Act. I adopt, in that respect, the submissions made by Mr Lloyd in paragraphs 2 and 3 of his written submissions:
This Court has no jurisdiction to grant the relief sought in respect of a desired exercise of power by the Minister under s.417 of the Act: s.476(2): NARP v Minister for Immigration [2003] FCA 847; Fonoi Fua v Minister for Immigration [2003] FMCA 48.
Even if there were jurisdiction, relief is not available where the Minister is under no duty to exercise the power, s.417(7): Re Minister for Immigartion; ex parte Prosecutor S134/2002 (2003) 195 ALR 1, Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ at [48] and Gaudron and Kirby JJ at [100].
In addition, I note that in the decision in SZAAM v Minister for Immigration [2003] FCA 917, on appeal from a decision of mine, SZAAM v Minister for Immigration [2003] FMCA 219, Emmett J said at paragraph 7:
Section 476(2) of the Act provides that, despite any other law, the Federal Magistrate's 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 s 417. That provision means what it says. The decision of Driver FM to dismiss the application as incompetent was therefore clearly correct.
The decision of Emmett J is directly binding on me.
The only other issue in this case is a purported notice of a constitutional matter filed by the applicants on 4 September 2003. In that notice the applicants assert that ss.474, 475 and 476 of the Migration Act are invalid. In written submissions filed in court today those assertions are repeated. There is, however, no substance to the constitutional argument. In that regard I adopt Mr Lloyd's submissions at paragraph 4 of his written submissions:
The application reveals the hand of the ubiquitous Mr Fonua, who repeatedly “helps” people to make applications of this kind notwithstanding that materially identical applications have repeatedly failed to succeed in the past. The constitutional and other grounds are hopeless and cannot possibly succeed: NAAX v Minister for Immigration [2003] FCA 313; Fonoi Fua v Minister for Immigration.
The constitutional validity of ss. 474, 475 and 476 of the Migration Act has already been determined.
In the circumstances, it is unnecessary to deal with the purported notice under s.78B of the Judiciary Act 1903 (Cth). I will therefore dismiss the application.
On the question of the applicants’ notice of motion filed on 8 September 2003 seeking that the objection to competency and the application for review be heard together, it follows from what I have said that, the Court having no jurisdiction, and the principal application having been dismissed, the motion is otiose and should be dismissed.
On the question of costs, the application for review having been dismissed and no reason being advanced as to why no costs order should be made other than the impecuniosity of the applicants, it is appropriate that I make a costs order. Impecuniosity is not a reason for a court to refrain from making a costs order.
Under the scale of costs established by schedule 1 to the Federal Magistrates Court Rules 2001 (Cth) the Minister would be entitled to stage 1 and stage 2 costs. That would provide a costs outcome slightly in excess of $3,000. My general practice in migration proceedings is to fix an amount of costs. That is what I will do on this occasion. I will order that the application be dismissed and that the applicants pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 October 2003
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