SZLLH v Minister for Immigration
[2008] FMCA 322
•19 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLLH v MINISTER FOR IMMIGRATION | [2008] FMCA 322 |
| MIGRATION – Visa – protection visa – interlocutory dismissal of show cause application as incompetent – applicant seeking review of a non-reviewable decision. |
| Migration Act 1958 (Cth), ss.48A, 48B, 417, 473(3)(h), 474(3), 474(7)(a), 476(2)(d) |
| SZFDZ v Minster for Immigration [2006] FMCA 717 SZFDZ v Minster for Immigration & Multicultural Affairs [2006] FCA 974 followed. NAOB of 2002 v Minister for Immigration & Anor [2007] FMCA 1874 followed. SZLJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1455 followed. Raikua & Anor Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2007] FCA 370; (2007) 158 FCR 510 Ozmanian v Minister for Immigration, Local Government & Ethnic Affairs 137 ALR 103 |
| Applicant: | SZLLH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 3100 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 December 2007 |
| Date of Last Submission: | 4 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2008 |
REPRESENTATION
| Appearance for the Applicant: | Mr Turner |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Appearance for the Respondents: | Ms Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed as incompetent.
The applicant is to pay the respondent's costs fixed in the sum of $2,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3100 of 2007
| SZLLH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is a show cause application.
The question to be decided, which is appropriate for a show cause hearing, is the question of the jurisdiction of the Court to deal with the substantive application. The substantive application is an application for orders relating to a decision of the Minister on 28th August 2007. The applicant seeks the following orders:
i)A declaration that the decision of the respondent dated 28 August 2007 is null and void and of no effect.
ii)A writ of certiorari quashing the decision of the respondent dated 28 August 2007.
iii)A writ of mandamus remitting the matter to the respondent to be redetermined according to law.
The Minister, who is the respondent to the application, has filed a response opposing the application on the ground that the Court does not have jurisdiction to hear the matter. The particulars of that ground are:
i)The applicant seeks review of a refusal to refer a request under s. 48B of the Migration Act 1958 to the Minister.
ii)Such refusal is a privative clause decision, as mentioned in s. 474(7)(a) of the act.
iii)Pursuant to s. 476(2)(d) of the Act, the Federal Magistrates Court does not have jurisdiction in relation to a privative clause decision or purported privative clause decision mentioned in s. 474(7).
The background to this matter is that on 2nd August 2007 the applicant applied to the respondent Minister to exercise his discretion to permit him to apply for a protection visa under s. 48B of the Migration Act. That section provides relevantly:
i)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice, given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
ii)The power under subsection (1) may only be exercised by the Minister personally.
The applicant, through his solicitor, wrote to the respondent requesting that the Minister intervene to lift the s. 48A ban which prevents the applicant from lodging a sub‑class 866 protection visa application with the department on the basis of his fear of persecution because of his membership of a social group. The applicant had previously applied for a sub‑class 866 protection visa on the basis of the fear of persecution for membership of a particular social group on 25th August 1997. That application for protection was refused on 2nd December 1997 and at the Refugee Review Tribunal on 14th April 2000.
The applicant's lawyers had this to say to the Minister:
We submit that there is significant new country information relevant to the applicant's claims since the previous RRT decision and that the issues raised now were not previously considered by DIAC, the RRT or the Minister on the previous appeal and which, consistent with current policy, would permit you to exercise your discretion to lift the s. 48 bar to enable him to lodge a new protection application should you see fit so to do.
On 28th August 2007 an officer from the Ministerial Interventions unit wrote to the applicant's lawyers saying, amongst other things:
Under s. 48B of the act, the Minister may allow a person to make a further application for a protection visa if he considers it is in the public interest to do so. Your request for the exercise of the minister's power under s. 48B of the Migration Act was assessed against the Minister's guidelines for purported further applications for a protection visa subject to s. 48B and requests for Ministerial intervention under s. 48B. However, the applicant did not meet these guidelines and will not be referred to the Minister for consideration under s 48B.
As a consequence, the applicant has commenced these proceedings.
For the Minister, it is submitted that the Federal Magistrates Court has no jurisdiction to entertain the application. Ms Watson, who appeared for the Minister, submitted that the applicant seeks to challenge a privative clause decision referred to in s. 474(7)(a) of the act, and that he seeks to challenge a decision of the Minister not to exercise or not to consider the exercise of the Minister's power under s. 48B of the Act. Section 476(2)(d) of the act provides that the Federal Magistrates Court does not have jurisdiction in relation to a privative clause decision or purported privative clause decision mentioned in s. 474(7) of the Act, therefore, it is submitted that the Court does not have jurisdiction to determine the application.
Ms Watson went on to submit that this case is indistinguishable from the matter considered by Driver FM in SZFDZ v Minister for Immigration[1] . In that case, Driver FM's judgment was the subject of an application for leave to appeal, which was refused by Moore J (see SZFDZ v Minister for Immigration & Multicultural Affairs)[2]
[1] [2006] FMCA 717
[2] [2006] FCA 974
In SZFDZ, Driver FM held that a refusal to enter a request to the minister for the exercise of his powers under s. 417 was caught by s. 476(2)(d). On the application for leave to appeal, Moore J stated:
It is not apparent to me that there was any error in the federal magistrate's decision.[3]
[3] Ibid at [8].
It was also submitted on behalf of the Minister that Raphael FM accepted that this Court did not have jurisdiction in NAOB of 2002 v Minister for Immigration & Anor[4]. It was submitted that the circumstances of that case were relevantly identical to the case before me, although the applicant in NAOB of 2002 (supra) made a request for consideration under s. 417 of the Migration Act.
[4] [2007] FMCA 1874.
It has also been brought to my attention that Smith FM has also recently held that this Court does not have jurisdiction in relation to a decision of an officer not to refer a request under s. 417 to the Minister due to the operation of s. 476(2)(d). In SZLJM v Minister for Immigration[5], it was submitted that both Smith FM and Raphael FM relied on the reasoning in S1083 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[6] and Raikua & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor[7]. Both the Court in S1083 of 2003 and Raikua (supra) considered earlier but similar provisions to current s. 476(2)(d), and in each case it was held that the Court did not have jurisdiction to hear the application.
[5] [2007] FMCA 1945.
[6] [2004] FCA 1455.
[7] [2007] FCA 30; (2007) 158 FCR 510.
Whilst the Minister notes that the applicant placed importance on the fact that the Minister did not personally consider the exercise of the power, which takes the action outside of the exclusion from jurisdiction set out in s. 474(7)(a) but all of the cases above were cases where there was a refusal by a departmental officer to refer a request to the Minister. A similar argument was expressly rejected in Ozmanian v Minister for Immigration, Local Government & Ethnic Affairs[8]. The effect of that decision in relation to this issue is relied upon by Moore J in S1083 of 2003 (supra) as well as Lindgren J who summarised the principles in Raikua at [42]. The Minister submits that this application should be dismissed with costs.
[8] 137 ALR 103
For the applicant Mr Turner submits that the application and s. 48B was made to the Minister for the Minister to exercise a power that only he, the Minister, had the power to exercise. It was an officer of the Minister's department who declined to facilitate the matter being put before the Minister for him to exercise his discretion. It is submitted that what the officer did was to frustrate the intention of Parliament to allow a person in the position of the applicant to have his or her circumstances considered personally by the Minister. Whilst the respondent may argue that the applicant is unable to bring this application before this Court due to the operation of s. 474(7)(a) of the act, Mr Turner has submitted that that paragraph only precludes an application being made to this Court in relation to a decision of the Minister to exercise or not to consider the exercise of the Minister's power under inter alia s. 48B. The relevant decision in this matter is not a decision of the Minister but a decision of the officer of the responsible department who held no delegation or authority to make the decision.
Section 474(3) of the Act includes a list of decisions which are covered in that section, and that list includes:
(h)conduct preparatory to the conduct of the making of a decision, including the taking of evidence or holding of an inquiry or investigation.
(i)a decision on review of a decision irrespective of whether the decision on review is taken under this act or a regulation or instrument under this act or under another act.
Mr Turner submitted that the officer who made the decision had no power or authority to make that decision or any part to play in the legislative scheme. The scheme is that a person makes an application to the minister to exercise his power under s. 48B of the act, and the minister cannot be compelled to exercise the power but only the Minister can decide whether or not to exercise that power. There is no part to play by anyone other than the Minister and the applicant in the process. The Minister can consider whether to exercise the power, but nobody else can.
Mr Turner submitted that the cases referred to by Ms Watson were all cases put on the basis that the Minister had refused to exercise the power, but there had been no exercise of the power, but the applicant had been denied procedural fairness but that on their facts the Minister had authorised the decision. This, he submitted, is not such a case, because, in this case, an officer of the Minister's department has intervened to prohibit the possible exercise of the power by the Minister. The conduct in respect of which the applicant complains is included in s. 473(3)(h) of the act. The decision is also a decision on review of a decision of s. 474 is included in Pt VIII of the act, which deals with the review of protection visa decisions.
This being a show cause hearing, the applicant only has to show that he has an arguable case or just enough substance in an argument to warrant a full hearing of the matter. Mr Turner submitted that the decision of the officer of the respondent's department is a decision caught by s. 474(3)(h) and (i) of the act and is not a decision referred to in s 474(7) of the act, because it is not a decision of the Minister and is, therefore, not precluded from review by this Court by s. 476(1) of the act.
It is clear that s. 476 of the Migration Act sets out the jurisdiction of the Federal Magistrates Court in this area. Section 476(2) says:
The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a) A primary decision
(b) A privative clause decision or purported privative clause decision of the Administrative Appeals Tribunal on review under s. 500
(c) A privative clause decision or purported privative clause decision made personally by the minister under s. 501, 501A, 501B or 501C.
(d) A privative clause decision or purported privative clause decision mentioned in sub‑s. 474(7).
Section 474(7) says:
To avoid doubt, the following decisions are privative clause decisions within the meaning of sub‑s. 474(2):
A decision of the Minister not to exercise or not to consider the exercise of the Minister's power under sub‑s. 37A(2) or (3), s. 48B par 72(1)(c), s. 91F, 91L, 91Q, 195A, 197AB, 197AD, 351, 391, 417 or 454 of sub‑s. 503(a)(3).
The other pars, (b), (c) and (d) are not relevant.
The matter before me appears to be essentially similar to the situation that confronted Driver FM in SZFDZ v Minister for Immigration, although in that case, as in NAOB of 2002 and SZLJM, related to a request under s. 417 of the Migration Act. To my mind, that is a distinction without a difference, and I note that paragraph 4 of SZFDZ, Driver FM referred to the fact that s. 474(3)(j) covers a failure or refusal to make a decision. His Honour took the view that there was no doubt that the Federal Magistrates Court lacks jurisdiction under the Migration Act to entertain the application.[9] , that decision has been followed by Raphael FM in NAOB of 2002 and Smith FM in SZLJM. In NAOB of 2002, Raphael FM referred at [4] and [5] to the decision of Driver FM in SZFDZ and noted that on appeal Moore J held that:
[9] See [2006] FMCA 717 at [4].
It is not apparent to me that there was any error in the federal magistrate's decision for the reasons advanced by the minister the applicant would have no prospects of success in any appeal. Leave to appeal is refused.[10]
[10] See SZFDZ v Minister for Immigration [2006] FCA 974 at [8]
In SZLJM at [23], Smith FM followed the decision in SZFDZ.
I am satisfied that I should follow the decisions in SZFDZ, NAOB of 2002 and SZLJM. I should follow those decisions unless I am satisfied they were wrongly decided, and I am not satisfied that they are wrongly decided. It follows that I should dismiss the application as incompetent and I will order that the applicant pay the respondent's costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 19 March 2008
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