SZNUZ v Minister for Immigration & Anor
[2009] FMCA 827
•24 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNUZ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 827 |
| MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of Ministerial Intervention Unit refusing to grant a protection visa – citizen of Nigeria claiming fear of persecution – jurisdiction – application not competent – no jurisdiction to hear matter. |
| Migration Act 1958 (Cth), ss.417, 474, 476 |
| Singh v Minister for Immigration [2005] FMCA 1875 |
| Applicant: | SZNUZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1887 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 August 2009 |
| Date of Last Submission: | 24 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2009 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitor appearing for the Respondents: | Ms Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal and Migration Review Tribunal are removed as respondents.
The application is not competent.
The application is dismissed.
The applicant is to pay the respondent’s costs fixed in the sum of $1000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1887 of 2009
| SZNUZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Application
The applicant in these proceedings is applying for orders relating to a decision of the Ministerial Intervention Unit of the Department of Immigration and Citizenship. The orders that he seeks in his application are:
(1)That the Ministerial Intervention decision be declared null and void.
(2)An order to redirect the decision and order the Ministerial Intervention to take the matter for further consideration.
(3)That the Department of Immigration not remove me from Australia whilst the decision is pending.
The applicant says, in his application, in respect of the grounds of the application:
They will kill me. The Migration Act was not adhered to properly and my life is in danger if they send me back because I am a former member of Bakassi Bo.
The applicant also seeks an interlocutory order that he should not be removed from Australia until the decision of the court. In his affidavit in support of the application he seeks orders:
(1)That the orders of the Ministerial Intervention be stayed until FMC has made its determination and it is concluded.
(2)That an injunction is granted that prevents the Department of Immigration from removing me from Australia.
I note that the application names both the Refugee Review Tribunal, and the Migration Review Tribunal as second respondent, which is because they have not been removed from what is a standard form application. The fact is that neither Tribunal is a respondent to these proceedings at all; it is therefore appropriate to make an order that the Refugee Review Tribunal and Migration Review Tribunal be removed as respondents to the application.
Background
The background of this matter is that the applicant is a citizen of Nigeria. He is currently in immigration detention in stage three in the Villawood Immigration Detention Centre, New South Wales. He applied for a protection visa on 7 October 2003. On 31 October 2003 a delegate of the Minister refused to grant the application. On 30 November 2003 the applicant applied for review of that decision to the Refugee Review Tribunal. The Tribunal handed down its decision on 23 September 2004 affirming the decision of the delegate not to grant the applicant a protection visa.
The applicant has told the court that he sought legal advice about applying to the Federal Magistrates Court for review of the Tribunal decision but did not do so because the figure that he had been quoted by the lawyer was some $10,000 and he did not have the funds. Consequently he did not make an application to the court. Instead he made an application to the Minister for Immigration and Multicultural and Indigenous Affairs, to use the former title of the Minister, for Ministerial Intervention under section 417 of the Migration Act. That application was refused.
The applicant made a further application under section 417 of the Act, but that application was refused on 3 August 2009. The New South Wales State Director of the Ministerial Intervention Unit wrote to the applicant on that date advising him his case had been reassessed in the light of his letter but did not meet the Minister’s guidelines for the referral of repeat requests and would not be sent to the Minister. As his case had been assessed against the guidelines, and did not meet those guidelines, it was not sent to the Minister and the application was refused.
It is that decision that the applicant seeks to have reviewed in this court. The Minister for Immigration and Citizenship has filed a response stating that the court has no jurisdiction to review the decision of a delegate of the Minister, dated 3 August 2009, as it is not a migration decision for the purposes of section 476 of the Migration Act 1958, as the decision falls within subsection 474(7) of the Act.
The applicant has attended court today and has stressed to the court that, if he were to be returned to Nigeria, his life would be in danger. If he were to be removed from Australia and sent to some other country, that would be a different matter. It has been explained to the applicant the court has no power to make such a direction. What the court has to consider is whether or not it has jurisdiction. The jurisdiction of the Federal Magistrates Court in migration matters is set out in section 476 of the Migration Act. Subsection 2 of that section sets out that 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 section 500.
c)A privative clause decision, or purported privative clause decision, made personally by the minister under section 501, 501A, 501B or 501C.
d)A privative clause decision, or purported privative clause decision, mentioned in subsection 474(7).
Section 474 of the act relates to privative clauses. Subsection (7) of that act says:
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 37A2 or 3, section 48B paragraph 71(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 351, 391, 417 or 454 or subsection 503A(3).
The court has previously held that it has no jurisdiction in these matters and I refer to Singh v The Minister for Immigration[1]. The fact is that the Court’s jurisdiction is set out by section 476 of the Act. A decision of the Minister not to exercise or not to consider the exercise of the Minister’s power under section 417 is specifically excluded under subsection (7) of section 474. It does not matter that the decision not to refer the matter to the Minister was made by an officer of the Department of Immigration and Citizenship. The letter makes it quite clear that the officer concerned was acting under the Minister’s guidelines.
[1] [2005] FMCA 1875
Consequently, the Court has no jurisdiction to deal with the application and that may be described as the fact that the application is not competent.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 26 August 2009
0