VAEA v Minister for Immigration
[2002] FMCA 292
•20 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VAEA & ANOR v MINISTER FOR IMMIGRATION | [2002] FMCA 292 |
| MIGRATION – Review of decision of Minister made personally – decision not to consider substituting a more favourable decision – whether the Court has jurisdiction to review the decision – objection to the competency of the application – application dismissed as incompetent. PRACTICE AND PROCEDURE – Whether the proceedings should be adjourned to permit the applicants to apply to the High Court for removal of the cause under s.40 of the Judiciary Act – whether the Federal Magistrates Court should make rulings on the constitutional validity of Commonwealth legislation. |
Judiciary Act 1903 (Cth), ss.39B, 78B
Migration Act 1958 (Cth), ss.351, 474, 475, 476
Commonwealth Constitution 1900 (Cth), s.75(v)
Kolotau v Minister for Immigration [2002] FCA 1145
NAAV v Minister for Immigration [2002] FCAFC 228
NAPT v Minister for Immigration [2002] FMCA 251
First Applicant: Second Applicant: | FAKAOSI SIAOSI VAEA JOCELYN VAEA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ958 of 2002 |
| Delivered on: | 20 November 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 20 November 2002 |
| Judgment of: | Driver FM |
REPRESENTATION
| Applicants appeared in person |
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed as incompetent.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $3,000.
The respondent has liberty to apply within 28 days for a costs order against any other person.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ958of 2002
| FAKAOSI SIAOSI VAEA |
First Applicant
JOCELYN VAEA
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This extempore judgment relates to an application filed in the Federal Court on 25 July 2002 seeking to review a decision of the respondent Minister, made on 27 June 2002. The application was transferred to this Court by order of Whitlam J on 23 August 2002. The respondent Minister objects to the competency of the application and seeks its dismissal.
The applicants claim that the decision was not made in the public interest and involved an error of law; secondly, that the respondent was not acting in good faith in making the decision; thirdly; that changes to the Migration Act 1958 (Cth) (“the Migration Act”) under ss.474, 475 and 476 involved a matter arising under the Constitution or involving its interpretation within the meaning of s.78B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), and that s.39B of the Judiciary Act also involved a constitutional issue.
It seems that following the filing of this application, due to a misapprehension, the Minister's Department took the application to be an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 27 September 1999. In fact, however, as has now become clear, the application is to review what might be described as a decision made personally by the Minister and communicated to the applicants by letter.
The letter I am referring to is dated 27 June 2002 under the hand of the Minister (page 106, court book). In that letter the Minister refers to a letter from the applicants dated 2 October 1999 requesting that he consider exercising his ministerial discretion under s.351 of the Migration Act (court book, page 83). In his letter of 27 June 2002 the Minister states that he has decided not to consider exercising his power in this case.
In effect, the application seeks that the Court review that decision of the Minister and also challenges sections of the Migration Act relevant to the jurisdiction of the Court to review the decision. I note in that connection that notices have been issued under s.78B of the Judiciary Act and that no Attorney-General has elected to intervene.
Mr Smith, for the Minister, has put two significant submissions to me in support of an objection to the competency of the review application, seeking orders that I dismiss the application as incompetent. The purpose of the hearing today was to rule on that issue of competency. Mr Smith submits first that there is no obligation on the respondent Minister to consider whether to exercise his power under s.351 by virtue of s.351(7). That subsection provides that the Minister does not have a duty to consider whether to exercise the power under s.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.
Mr Smith submits that relief is not available under s.39B of the Judiciary Act where the respondent Minister has no obligation. He refers to several decisions of the Federal Court in support of that proposition, notably a decision of his Honour Hely J in Kolotau v Minister for Immigration [2002] FCA 1145, decided on 5 September 2002.
I am satisfied that there is persuasive authority from several single judge decisions of the Federal Court that the effect of s.351(7) is that the Minister cannot be compelled to exercise his power under s.351(1). It is clear that the Minister has no duty to either exercise that power or to consider exercising it. In the present case, the Minister has decided not to consider exercising it.
In my view, s.351(7) does not exclude the possibility that a decision made by the Minister not to consider exercising the power under s.351(1) might itself be a decision amenable to review, subject to any other provision of the Migration Act or, indeed, any other law of the Commonwealth bearing upon such review. I do not think that the effect of s.351(7) is to exclude any jurisdiction in a court to consider the legality of such a decision of the Minister.
However, this brings me to the second leg of Mr Smith's submissions. That is, that s.476(2) of the Migration Act clearly provides that neither this Court nor the Federal Court has jurisdiction to review a decision of the Minister under s.351 of the Act either in the exercise of his power under s.351(1) or in relation to the question of whether he will consider exercising that power. Mr Smith also referred me to single judge authority of the Federal Court in support of that proposition and also a decision of this Court in NAPT v Minister for Immigration [2002] FMCA 251, a decision of Raphael FM. Federal Magistrate Raphael followed the Federal Court authority relied upon by Mr Smith.
It seems to me clear on the face of s.476(2) that neither this Court nor the Federal Court has jurisdiction to review a decision of any kind made by the Minister under s.351. I am fortified in that view by the decisions of the Federal Court and this Court that Mr Smith has taken me to. It follows that whatever may be the merits of the application before the Court, this Court has no jurisdiction to deal with it. In that connection I note that the applicants have challenged the constitutional validity of s.476 of the Migration Act as well as the constitutional validity of ss.474 and 475. I do not see s.475 as presently material. The constitutional validity of s.474 has already been authoritatively dealt with by the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 and I am bound by that decision.
As far as I am aware, and Mr Smith was unable to put any submission to the contrary, the constitutional validity of s.476 has not yet been dealt with by the High Court and has not been dealt with expressly by the Federal Court, although some implication of validity may be derived from the decision of the Full Court in NAAV. In any event, in my view, federal legislation should be presumed to be valid until it is found to be invalid. In my opinion, the task of ruling on the validity of Commonwealth legislation more properly falls to a superior Court rather than this Court.
The issue for me to consider is what should happen to this application, bearing in mind that I do not have jurisdiction to consider the application on its merits. Mr Smith seeks the dismissal of the application as incompetent, with costs. Plainly, it is incompetent in this Court. The applicants could have sought review of the decision of the Minister in the High Court pursuant to s.75(v) of the Constitution. They have, it seems, elected not to do so. It would, in my view, be open to me to adjourn these proceedings to permit the applicants to seek removal of the cause to the High Court pursuant to s.40 of the Judiciary Act. It would, of course, be up to the High Court to decide whether to grant any such application for removal.
That course has several considerations in its favour. The Federal Court, at least in its original jurisdiction, is in no better position to consider the merits of the application than I am. The High Court would seem to be in a considerably better position, given that its jurisdiction under s.75(v) of the Constitution is not and cannot be excluded by the Migration Act. In addition, removal to the High Court would bring the issue of constitutional validity to an authoritative resolution more quickly than might be the case if the proceedings went first to the Federal Court in its appellate jurisdiction and thence potentially to the High Court. Section 40 of the Judiciary Act was presumably enacted in order to facilitate such a more rapid resolution of important issues of law.
On the other hand, these applicants are not legally represented and they may never be legally represented. In the circumstances there is reason to doubt whether the issues would be properly argued unless the applicants were to be provided with some form of free legal assistance. In addition, if I were to dismiss the application it would be open to the Federal Court to consider granting leave to appeal from my interlocutory decision, which would give the Federal Court in its appellate jurisdiction the opportunity to at least consider the constitutional issue, if not the issue of the validity of the Ministerial decision.
On balance, I have decided that I should bring these proceedings in this Court to a close now by dismissing the application. It will then be up to the applicants to decide whether to seek leave from the Federal Court for an appeal to that Court in order to further ventilate the issues that they have raised. I will therefore dismiss the application as incompetent.
On the question of costs, Mr Smith has sought an order for costs against the present applicants and he has also foreshadowed that there may, subject to instructions, be an application for costs against a third party who at the present time has no notice of such an application.
I have found that the principal application before the Court is incompetent and in the circumstances I have decided to dismiss it.
I am told that the applicants have received notice before today of that incompetency. In accordance with the general principle that costs follow the event it is, subject to any exceptional circumstance, appropriate that the Minister receive an order for costs. The issues raised by the applicants do raise an issue of some public interest in that they challenge the constitutional validity of s.476 of the Migration Act, which it seems has yet not to be the subject of an authoritative decision. Nevertheless, as I have observed earlier, this Court is not the appropriate forum to resolve that issue.
The issue of public interest is not of such significance in my view as to disentitle the Minister to an order for costs. Mr Smith has submitted that an order in the sum of $4,000 may be appropriate. In accordance with my general practice in migration proceedings I consider that
I should fix an amount of costs in order to ensure that an appropriate amount is recovered and that the issue of costs does not provide a focus for further disputation between the parties. It is apparent that some of the preparation undertaken by the Minister's department was unnecessary in that it was not understood until recently that it was the Minister's personal decision which was the subject of the application, rather than the earlier decision of the MRT.
I do not consider that the applicants should bear the cost of the department's mistake. On the other hand, substantial parts of the court book may have been necessary in order to give this Court a proper understanding of the issues leading up to the decision of the respondent Minister under s.351. In addition, the legal issues arising today have been, at least in this Court, novel and it was appropriate for the Minister to be represented by counsel. That in addition entails some significant cost.
In the circumstances, I consider that an order for costs in the sum of $3,000 would be sufficient and appropriate. I will therefore order that the application is dismissed as incompetent and that the applicants bear the respondent’s costs and disbursements of and incidental to the application, which I fixed in the sum of $3,000.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 November 2002