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[2002] FCA 549
Federal Court of Australia
2002-04-24
Emmett J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant is a national of Tonga. On 7 August 1995 he applied under the Migration Act 1958 (Cth) ("the Act") for the grant of a protection visa. On 4 October 1995 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refused to grant a protection visa to the applicant. That decision was subsequently affirmed by the Refugee Review Tribunal ("the Tribunal") on 29 May 1996. 2 On 3 January 2002 the applicant lodged a further application for a protection visa. In the light of the provisions of s 48A the Minister treated that application as a request for the exercise of the Minister's power under s 48B of the Act. By letter of 1 February 2002 a delegate of the Minister informed the applicant that his request for the exercise of power under s 48B would not be referred to the Minister for consideration under s 48. 3 On 12 February 2002 a further application was submitted to the Minister on behalf of the applicant seeking: "Ministerial intervention in changing the decision made by the delegate notification of which was made by letter dated 1 February 2002." By letter of 25 February 2002 a response was given to the applicant relevantly in the following terms: "I refer to…[the]…letter of 12 February 2002 requesting that the Minister consider exercising his ministerial discretion under section 48B of the Migration Act 1958. Under this section of the Migration Act, the Minister may allow a person to make a further application for a Protection Visa if he considers it is in the public interest to do so. Your request for the exercise of the Minister's power under section 48B of the Migration Act was assessed against the Minister's Guidelines for Purported Further Applications for a Protection Visa subject to S48B and Requests for Ministerial Intervention under S48B. However, your case did not meet these Guidelines, and will not be referred to the Minister for consideration under s 48B. I now ask that you contact the nearest Regional Office of the Department of Immigration and Multicultural and Indigenous Affairs to discuss your status in Australia." 4 By application to this Court filed on 28 February 2002 the applicant seeks the following orders: "1. That the Court may order to remit the matter to the Respondent for reconsideration according to law. 2. Any other order the Court might think appropriate; and 3. Costs." The application refers in its heading to s 476 of the Migration Act, Section 39B of the Judiciary Act 1903 (Cth) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). It begins with a statement as follows: "The decision of the delegate given on 25 February 2002 was incorrect and involved error of law". 5 In the course of argument the applicant made clear that by the application to this Court he seeks review of the decision evidenced by the letter of 25 February 2002. The grounds of the application are stated as follows: "(1). The delegate was not acting in good faith in making the decision and involved error of law. (2).Section 39B of the Judiciary Act 1903 is a source of original jurisdiction in the Federal Court of Australia to review the decision sought to be challenged. (3).An exercise of discretionary power in bad faith by the delegate as per s 5 of the Administrative Decisions (JR) Act 1977." 6 In an affidavit filed in support of the application, which I shall treat as a submission, it was contended that the delegate who purported to make the decision under review did not have jurisdiction to do so. The complaint, as I understand it, is that a decision has not been made by the Minister personally. In order to put that contention in context it is necessary to say something about the scheme of the Act. 7 Section 48A(1) relevantly provides as follows: Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of a visa has been refused… …may not make a further application for a protection visa while in the migration zone. Clearly section 48A applies to the applicant in relation to any application for a protection visa made after 4 October 1995. 8 Section 48B relevantly provides as follows: "(1). If the Minister thinks that it is in the public interest to do so, the Minister may determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen…. (2).The power under subsection (1) may only be exercised by the Minister personally. …… (6).The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by another other person, or in any other circumstances." 9 The Minister has filed notice of objection to competency in respect of the present application. When the matter first came before me for directions I fixed the notice of objection to competency for hearing today. 10 Under s 474(2) of the Act the term "privative clause decision" is defined as meaning a decision of an administrative character made, proposed to be made, or required to be made as the case may be, under the Act. Under s 474(1) a private clause decision: (a) is final and conclusive;
(b) must not be challenged, appealed against, reviewed, quashed, or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 11 The effect of ss 475A, 476 and 477 of the Act is to exclude the jurisdiction of the Federal Court in relation to certain decisions made under the Act. Some residual jurisdiction, however, remains under section 39B of the Judiciary Act. Section 476 of the Act does not confer any power or jurisdiction to review a decision made under the Migration Act. The reference in the application to this Court to s 476 is therefore misconceived. It is likely that it was intended as a reference to s 476 of the Act prior to the amendments that became effective on 2 October 2001. 12 The reference to s 5 of the Administrative Decisions (Judicial Review) Act is also misconceived. That Act applies to certain decisions of an administrative character, other than a decision included in any of the classes of decisions set out in schedule 1 to that Act. Schedule 1 to that Act includes paragraph (da), which excludes "a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958". 13 It is not entirely clear to me from the submissions made on behalf of the applicant whether it is conceded that the decision in respect of which review is sought is a private clause decision within the meaning of s 474(2). However, I have formed that the view that it is a privative clause decision. Whether it is to be treated as a decision of the Minister or a decision of an officer of the Department, not to refer a matter to the Minister, it is a decision of an administrative character required to be made under the Act or proposed to be made under the Act. Equally, it is a decision made under the Act since, as a necessary step in the way to making a decision under s 48B, departmental officers must be involved. 14 Section 476(2) provides that: "Despite any other law (including section 39B…of the Judiciary Act 1903), the Federal Court…[does] 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…section 48B…[of the Act]." 15 Thus, while s 475A provides that s 476 does not affect the jurisdiction of the Federal Court under s 39B of the Judiciary Act in respect of any decision in respect of which the Court's jurisdiction is not excluded by s 476, that does not assist the applicant in this case if s 476(2) applies to the decision. In my view, s 476(2) does apply to the decision in respect of which review is sought. 16 While on the evidence before me the Minister has not personally turned his mind to the question of whether or not to exercise the discretion under s 48B of the Act, I consider this Court has no jurisdiction in relation to the acts of officers acting in accordance with their apparent authority in not referring an application to the Minister - see for example Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 29 and Bedlington & Anor v Chong (1998) 87 FCR 75. I consider that this application is incompetent and should be dismissed. 17 I should observe, however, that that does not necessarily mean that the applicant or any applicant in a similar position is without remedy, if there has been a failure to exercise a duty on the part of an officer of the Commonwealth. Some relief may nevertheless be available in the High Court in its original jurisdiction, but review by the Federal Court of failure to consider the exercise of power under section 48B, is not open. 18 Accordingly the application should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Associate: Dated: 1 May 2002 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter and Mr Fonua Counsel for the Respondent: Mr S. Lloyd Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 24 April 2002 Date of Judgment: 24 April 2002
NADE
Minister for Immigration & Multicultural & Indigenous Affairs
(1996) 71 FCR 1
(1998) 87 FCR 75