Alamoti v Minister for Immigration & Multicultural & Indigenous Affairs

1 This is an application by Mr Soane Alamoti ("the applicant") for review of what is said to be a decision refusing to grant him a visa. The actual decision that the applicant seeks to have reviewed is discussed later. 2 The applicant is a citizen of Tonga. He arrived in Australia in April 1996 on a visitor visa. He was then granted a subsequent visitor visa, which expired on 29 December 1996. On 23 December 1996, the applicant applied for a family visa (subclass 806). This application was made on the grounds that he was a "remaining relative" of his sister, who is an Australian citizen. The applicant was granted a bridging visa while this application was being determined. On 28 July 1997, the application for a family visa was refused by a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister"), because the applicant did not fall within the definition of a "remaining relative". The applicant sought a review of this decision, and it was affirmed by the Migration Internal Review Office on 3 September 1997. The applicant's bridging visa expired in October 1997. He has been in Australia unlawfully since that time. In July 2002 the applicant married Iasinita Veatupu, a Tongan citizen who is currently studying in Australia and has a student visa. In August 2002 the applicant was apprehended by Immigration compliance officers and detained at the Villawood Detention Centre. 3 The applicant applied for a bridging visa on 30 August 2002. This application was refused on 2 September 2002 on the grounds that the applicant did not meet the relevant criteria. The applicant applied for a review of this decision on 3 September 2002. The Tribunal conducted a hearing of the matter on 11 September 2002, and the decision was affirmed on 12 September 2002. 4 In a letter dated 18 August 2002, four of the applicant's brothers and sisters wrote to the Minister requesting that he consider the applicant's case under s 351 of the Migration Act 1958 (Cth) ("the Act"). This letter states that the decision that should be reconsidered is a decision made on 11 September 2002. This letter was received by the Minister on 24 September 2002. The applicant's wife also wrote to the Minister. In an undated letter, she states that she is pregnant, and that her husband's detention has traumatised her and affected her studies. She requests that the Minsiter reconsider his decision not to issue the applicant a bridging visa. On 22 October 2002 the Minister wrote a letter to each of the applicant's siblings and his wife, stating that he had decided not to consider exercising his power under s 351 of the Act. 5 The application before me reads as follows: The decision by delegate given on 22 October 2002 was incorrect and involved error of law. The decision was done in bad faith. The decision involved s 78B Judiciary Act 1903. Section 39B Judiciary Act involved. The application states that the relevant decision was made on 22 October 2002. 6 The application is purportedly made pursuant to ss 474, 475, 476 of the Act and ss 39B and 78B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). What in substance the applicant seeks to challenge was the intimation by the Minister not to consider to exercise the power under s 351 of the Act to substitute a more favourable decision in relation to the applicant. 7 The applicant confronts, in my opinion, two hurdles in prosecuting his application. The first is that by operation of s 476 of the Act the Court does not have jurisdiction in relation to any decision not to consider to exercise the power under, inter alia, s 351. In addition even if the Court had jurisdiction, the applicant would confront the difficulty that s 351(7) makes it clear that the Minister does not have a duty to consider whether to exercise the power to substitute the more favourable decision. It is probably correct, though it is not a matter I need address in these proceedings, that a remedy would not ordinarily be available under s 39B of the Judiciary Act in relation to a decision not to consider whether to exercise the power, as there is no duty to exercise this power: see, for example, NAGM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395 and Tavalu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1027. 8 Accordingly I order that the application be dismissed and the applicant pay the respondent's costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.