Vaea v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 271

FEDERAL COURT OF AUSTRALIA

Vaea v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 271

MIGRATION – Appeal from Federal Magistrate – application below dismissed as incompetent – review sought of Minister’s decision not to consider exercise of his powers under s 351 of the Act – no duty on Minister to consider whether to exercise power – Court precluded from reviewing Minister’s decision – appeal from interlocutory judgment – whether leave to appeal should be granted

Migration Act 1958 (Cth) ss 351, 476

Applicant NAGM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395 followed

FAKAOSI SIAOSI VAEA & JOCELYN VAEA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1301 OF 2002

TAMBERLIN J
SYDNEY
24 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1301 OF 2002

BETWEEN:

FAKAOSI SIAOSI VAEA
FIRST APPELLANT

JOCELYN VAEA
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

24 MARCH 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Leave to appeal is refused.

2.        The appeal is dismissed.

3.        The appellants 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	N1301 OF 2002

BETWEEN:

FAKAOSI SIAOSI VAEA
FIRST APPELLANT

JOCELYN VAEA
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	24 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from Federal Magistrate Driver who, on 20 November 2002, dismissed an application seeking review of a decision of the respondent (“the Minister”) as incompetent and made an order as to costs.  On the hearing of the appeal, I asked the appellants to make any submissions they wished to make after the detailed submissions of Mr Smith had been made.  The appellants appear before the Court without legal representation and they have no legal expertise.  They are assisted by the services of an interpreter. 

2. The appeal concerns an application to the Minister for the exercise of his discretion under s 351(1) of the Migration Act 1958 (Cth) (“the Act”) to substitute a more favourable decision to the appellants, following a decision of the Migration Review Tribunal. Section 351(7) makes it clear that the Minister does not have a duty to consider whether to exercise the power in s 351(1) in respect of a decision.

3. Following on from the Notice of Motion filed by the Minister seeking dismissal of the appeal on the basis of incompetency, an issue has arisen on the hearing as to whether the appeal is interlocutory or final and this, in turn, raises the question whether leave to appeal is required.  After considering the reasons of Driver FM and the submissions of the Minister, I am satisfied that the appeal is interlocutory in character and that leave is required.

4. I am not persuaded that leave should be granted because the application is not one which has any reasonable prospect of success. In the light of the legislation, as it now stands, particularly having regard to s 351(7) and to s 476(2), the latter of which provides that this Court and the Federal Magistrates Court do not have jurisdiction to review a decision of the Minister under s 351 of the Act, the appeal brought is without any prospect of success. In this respect I consider that the reasoning of the Full Court in Applicant NAGM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395 is directly in point and binding in respect of its essential reasoning. For these reasons I propose to dismiss the appeal.

5. I am not persuaded that any error has been shown in the decision of the Federal Magistrate both in respect to the orders and the reasons which he gave.

6. It is not my function on this appeal to consider the merits of the application made by the appellants for refugee status.  I am simply concerned with whether there has been an error in the decision of the Federal Court Magistrate.  No such error has been shown.

7. Like many other cases that are brought in this Court in this area, the position appears to be, and the appellants say, that they do not have the means to meet any award for costs.  I have taken their position into account, but nevertheless my conclusion is that the costs ought to be paid by the appellants in this matter. 

8. The orders of the Court are that leave to appeal be refused and that the appellants pay the costs of the Minister. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             17 April 2003

Appellants appeared in person.
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 March 2003
Date of Judgment:	24 March 2003