Fonoifua v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from an interlocutory decision of a Federal Magistrate delivered on 24 February 2003. The Chief Justice, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) has directed that the appeal be heard by a single judge. The decision under appeal relates to an application filed by the appellants on 11 November 2002 seeking review of a decision of a delegate of the respondent made on 28 October 2002 ('application'). The application asserted that the delegate's decision was not made in good faith, was incorrect and involved errors of law. The application also questioned the constitutionality of ss 474, 475 and 476 of the Migration Act 1958 (Cth) ('Act'). The Federal Magistrate upheld an objection to competency and dismissed the application. 2 On 25 March 2003 the respondent filed a notice of objection to the competency of this appeal objecting to the jurisdiction of this Court on the basis that the judgment of Federal Magistrate Driver was interlocutory in nature and that the required leave to appeal had neither been sought nor obtained. The respondent submits that even if leave to appeal were sought it should be denied on grounds including the fact that any such appeal would be futile. For the reasons given below I agree with this submission. 3 The background to this appeal is found at pars [2] to [8] of the Federal Magistrate's reasons for judgment: 'On 9 December 2002 Mr Markus, for the respondent Minister, filed a notice of objection to the competency of the application asserting that the decision sought to be reviewed is a decision arising from s.351 of the Migration Act and, further, that such a decision is excluded from the Court's jurisdiction by s.476(2) of the Migration Act. The notice also asserts that the letter referred to in the application, dated 28 October 2002, is not a final and operative decision which can be the subject of judicial review. I heard from Mr Markus, for the Minister, this morning and he also relies upon written submissions filed on 21 February 2003. I also received as evidence in support of the objection to competency an affidavit by Elizabeth Nora Jacqueline Warner, filed on 9 December 2002. The following facts are apparent from that affidavit. First, the decision sought to be reviewed is a decision set out in a letter to the applicant dated 28 October 2002 from an officer of the Minister's Department. Secondly, that letter advises the applicant that a request for ministerial intervention would not be referred to the Minister for his consideration. Thirdly, it is apparent from the letter that the decision made in the Department was made on the basis of guidelines issued by the Minister relating to circumstances in which he would not consider the exercise of his power under s.351 of the Migration Act. Essentially, the Minister had decided that he would not consider the exercise of those powers when he head previously considered the exercise of those powers and nothing new had been raised. … The immediate question that falls for determination is whether this Court has any jurisdiction to consider the application. There is ample authority referred to in the written submission by Mr Markus that s.476(2) of the Migration Act excludes from this Court's jurisdiction decisions by the Minister under s.351 of the Migration Act. Not only does the Court have no jurisdiction to consider the Minister's exercise of power under that section, the Court has no jurisdiction to consider a refusal by the Minister to consider exercising his power. Further, it is apparent from the decision of the High Court in Ex parte Applicant S134 of 2002 v Commonwealth [2003] HCA 1 that the Minister cannot be compelled to consider exercising his power. It is at least strongly arguable that the same can be said in relation to attempts to compel the Minister's Department to refer matters to him. There is also a question in this case whether there is any decision to review. The Minister has not considered the matter at all. His Department declined to refer the matter to him consistent with guidelines issued by the Minister in relation to such requests. In my view, in these circumstances, the operative decision under review is the decision made in advance by the Minister not to receive for consideration decisions falling within the class set out by the Minister. I accept that this request fell into that class. That decision is a decision caught by the exclusion of jurisdiction in s.476(2) of the Migration Act. On that basis, I am satisfied that I should dismiss the application as incompetent in accordance with the application made by the Minister… The applicant has filed written submissions which refer solely to constitutional issues. There is no substance to those submissions. Section 474 of the Migration Act is clearly a valid law of the Commonwealth. Sections 475 and 476 are also valid laws of the Commonwealth until they are found to be invalid and this application does not constitute a serious challenge to the validity of those provisions'. 4 The notice of appeal states two grounds for appeal: '1. That Driver FM erred in law and findings that the proceedings involved a matter arising under s 78B of the Judiciary Act 1903. 2. The delegate was not acting in good faith in the making of the decision .' 5 I note that the reasons for judgment of Driver FM make no reference to any matter arising under s 78B of the Judiciary Act 1903 (Cth) ('Judiciary Act') or any other section of that Act. Section 78B provides for notice to be given to the Attorneys-General of the Commonwealth and of the States where a cause involves a matter arising under the Constitution or involving its interpretation. However, a party's genuine belief that the cause involves a matter of sufficient constitutional significance to make it a matter for the purposes of s 78B(1) will not be sufficient to make it so. In Narain v Parnell (1986) 9 FCR 479 Burchett J observed, at 489: 'Section 78B only operates when the circumstances it postulates are made to appear to the court: it does not operate simply because a party asserts those circumstances. It is clear, from the reference to the possibility of intervention or removal of the cause to the High Court upon the initiative of the Attorney-General, that what the section contemplates is a constitutional question which is a live issue in the proceedings.' 6 The appellants' challenge to the constitutional validity of ss 474, 475 and 476 of the Act is entirely without merit. There is no live constitutional issue in this case and s 78B of the Judiciary Act is not enlivened in this proceeding. 7 As regards the appellants' second ground of appeal, which is that the respondent's delegate was not acting in good faith in making the decision which gave rise to the application, this assertion cannot be made out in view of Driver FM's finding that the delegate was acting in accordance with Ministerial guidelines. This was, however, not an issue relevant to the Federal Magistrate's dismissal of the proceedings for lack of competence. That decision was premised on the fact that s 476(2) of the Act excludes the jurisdiction both of this Court and the Federal Magistrates Court from review of the decision in question. 8 Section 476(2) of the Act states: 'Despite any other law… the Federal Court of Australia 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.' 9 I agree with the Federal Magistrate's decision on that question for the reasons he gave and for these reasons the orders of the Court are that the appeal is dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.