Tuuhoko v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1204

FEDERAL COURT OF AUSTRALIA

Tuuhoko v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1204

SIAOSI TUUHOKO & ORS v MINISTER FOR IMMIGRATION & INDIGENOUS AFFAIRS

N732 OF 2002

EMMETT J
20 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N732 OF 2002

BETWEEN:

SIAOSI TUUHOKO
FIRST APPLICANT

VAOPAKO TUUHOKO
SECOND APPLICANT

KELEPI TUUHOKO
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

20 SEPTEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed as incompetent;

2.        the applicants pay the respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N732 OF 2002

BETWEEN:

SIAOSI TUUHOKO
FIRST APPLICANT

VAOPAKO TUUHOKO
SECOND APPLICANT

KELEPI TUUHOKO
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE:

20 SEPTEMBER 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The applicants are members of a family, being husband, wife and their infant child.  They are nationals of the Kingdom of Tonga.  On 4 August 1997 they applied for Change in Circumstances (Residence) (Class AG) Subclass 806 (Family) visas under the Migration Act1958 (Cth) (“the Migration Act”). On 16 June 1999 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), decided to refuse to grant the visas.

2. The applicants applied for a review of that decision by the Migration Review Tribunal (“the Tribunal”).  On 4 October 2000 the Tribunal made a decision in which it affirmed the decision under review, finding that the applicants are not entitled to the grant of the visa sought.

3. On 19 October 2000, D.J. Hegarty Consultants wrote to the Minister on behalf of the applicants asking the Minister to exercise the discretion available to him under s 351 of the Migration Act to allow the applicants to remain permanently in Australia. Section 351(1) 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 349 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 decision of the Tribunal that was made on 4 October 2000 was a decision made under s 349. 

4. Section 351(7), however, provides:

   “The Minister does not have a duty to consider whether to exercise the power under [section 351(1)] in respect of any decision, whether he or she is requested to do so by the applicant or by any other person , or in any other circumstances.”

   By letter of 11 July 2002 the Minister informed Mr Hegarty that the applicants’ case had been referred to the Minister and that on 20 June 2002 he had decided not to consider exercising his power under s 351.

5. By application filed in this Court on 22 July 2002, expressed to be under s 351 of the Migration Act and ss 39B and 78B of the Judiciary Act 1903 (Cth) (“the Judciary Act”), the applicants claimed the following:

   “1.That the decision of the respondent given on 11 July 2002 was not in public interest involved error of law.

   2.The applicant was not acting in good faith in making the decision.

   3.The changes to the Migration Act under section 474, 475 and 476 involved a matter arising under the Constitution involving its interpretation within the meaning of section 78B of the Judiciary Act 1903.”

6. No other relief is claimed and it is by no means clear just what is sought by the application.  Bearing in mind that the application is handwritten and was clearly prepared without the assistance of any legal advice,  I would take the application as a claim to have the decision referred to in the letter of 11 July 2002 reviewed and quashed in some way.

7. The Minister filed a notice of objection to the competency of the application on 15 August 2002. That objection is based on s 476(2) of the Migration Act which provides:

   “Despite any other law (including section 483A, sections 39B and 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 and section 39 of the Federal Magistrates Act 1999), the Federal Court and the Federal Magistrates Court do 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 subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 345, 351, 391, 417 or 454.”

   That provision is clear and unequivocal. 

8. Mr Fonua, who appeared with leave on behalf of the applicants (notwithstanding that he has no legal qualifications and is not a migration agent), relied on an affidavit sworn on 18 September 2002 and filed on behalf of the applicants.  I permitted that affidavit to be read on the basis that it would be treated as a submission rather than evidence.  It makes the following assertions:

   “1.That the decision by the Minister given on 11 July 2002 was not done in public interest as is required by section 351 of the Migration Act.

   2.That the decision by the Minister not to exercise his discretion was done in bad faith.

   3.That the Constitution banned Parliament from legislating so as to unreasonably interfere with the judicial power of the Commonwealth. This is the Constitution we are dealing with…it is not a Dog Act.

   4.That it is unconstitutional for the Commonwealth to enact legislation under the Migration Act pursuant to ss 474, 475 and 476 that prevents courts from reviewing administrative decisions which has positive effect of removing review rights for all Australian citizens, permanent residents, companies and businesses in immigration matters.

   5.That it is beyond the power of the Commonwealth provided in section 51(xxvii) of the Conctitution [sic] to enact legislation under the Migration Act to abolish the rights to have a poor decision checked by an independent umpire according to law.

   6.That it is unconstitutional for the Commonwealth to enact legislation under the Migration Act which authorises the making of law inconsistent with the provision of s 47 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).”

   When I invited Mr Fonua to make any submissions that he wished to make, he said he wished to do nothing more than to read the affidavit. 

9. I have evidence before me that the Attorneys-General of the Commonwealth and the States and Territories were notified of the claims and I am satisfied that none of the Attorneys wishes to be heard in relation to the contentions advanced on behalf of the applicants.

10. It is not for the Court to express any view concerning the desirability of legislation such as ss 476 and 351 of the Migration Act. The terms of s 476 are clear and unequivocal as I have said. This Court can exercise jurisdiction only in such circumstances as are created by the statute. I consider that the objection to competency is well taken and, accordingly to the application should be dismissed as incompetent.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            26 September 2002

Counsel for the Applicant:	Mr G. Fonua (with leave of the Court)
Counsel for the Respondent:	Robert Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 September 2002
Date of Judgment:	20 September 2002