SZFDZ v Minister for Immigration

[2006] FMCA 717

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFDZ v MINISTER FOR IMMIGRATION [2006] FMCA 717

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application as incompetent – applicant seeking review of a non-reviewable decision.

Migration Act 1958 (Cth), ss.417, 474, 476

Applicant: SZFDZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG1306 of 2006

Judgment of: Driver FM

Hearing date: 19 May 2006

Delivered at: Sydney

Delivered on: 19 May 2006

REPRESENTATION

Solicitors for the Applicant: Mr D Prince, appearing as amicus curiae
Christopher Levingston & Associates

Solicitors for the Respondent: Ms H Dejean
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed as incompetent.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1306 of 2006

SZFDZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before an application for an order to show cause why relief should not be granted in relation to a decision purportedly made by the Minister, or an officer on behalf of the Minister, under s.417 of the Migration Act 1958 (Cth) (“the Migration Act”). There is an obvious preliminary issue of jurisdiction in relation to the application. The application is supported by an affidavit by the applicant attaching correspondence from the Minister's department. That correspondence discloses that the department has declined to entertain a request for ministerial intervention pursuant to s.417 of the Migration Act upon the basis that the issue had previously been dealt with under the section.

2. The Minister has filed a response to the application on 12 May 2006. That response asserts that the Court lacks jurisdiction to hear the application. The response refers to rule 44.06(2)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) which provides that a response to an application may include a response that the Court lacks jurisdiction to hear the application. The response also refers to ss.417, 474(7) and 476(2)(d) of the Migration Act. Section 476(2)(d) relevantly provides that this Court has no jurisdiction in relation to a privative clause decision or a purported privative clause decision mentioned in sub-s.474(7) of the Migration Act.

3. Section 474(7) relevantly provides that to avoid doubt a range of decisions are privative clause decisions within the meaning of

   
   

   sub-s.474(2). Paragraph (a) includes a reference to a decision of the Minister not to exercise or not to consider the exercise of the Minister's power under s.417 of the Migration Act.

4. Mr Prince, who appeared as amicus curiae this morning, raised an issue of whether the correspondence attached to the applicant's affidavit disclosed that in fact no consideration at all had been given to the issue in this instance by the Minister. That may well be so, but it appears that the decision by the Minister's department is based on longstanding instructions by the Minister as to how requests of this nature are to be handled. In addition, as is pointed out by Ms Dejean, for the Minister, s.474(3)(j) covers a failure to make a decision. There is, in my view, no doubt that the Court lacks jurisdiction under the Migration Act to entertain this application. I say nothing of the jurisdiction that may be available in the High Court or the Federal Court.

5. The proper approach is for me to dismiss the application as incompetent and I will so order.

6. As to costs, Ms Dejean, on behalf of the Minister, has properly disclosed that the Minister's costs to date are less than the prescribed amount of $1,000 that would ordinarily apply to a dismissal at this stage of a proceeding.  I am satisfied that costs of not less than $750 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. 

7. I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application which I fix in the sum of $750.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  26 May 2006