NADU v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The application in this matter was filed on 11 November 2002. The application appears to be dated 18 November 2002, but if it is so dated, the date must, it seems, be wrong. 2 The application was filed by the applicant personally. In the space provided by the relevant form for the nature of the application to be specified, the applicant has written: 'I was refused by Minister on 8/11/02, so I request you to consider my application for protection visa against Minister's decision.' 3 The supporting affidavit of the applicant, sworn on 9 November 2002, states: '1. I am from State of India. I belong to a Sect Dalit which is hated by high caste people in India. 2. I will be killed if was sent back. 3. Majority Hindu group people are harassing to my family. 4. The Minister has failed to fully consider all aspects of my case.' 4 The evidence before the Court discloses that, following a decision by the Refugee Review Tribunal made on 27 March 2002 to affirm a decision of a delegate of the respondent not to grant the applicant a protection visa, the applicant wrote to the respondent. By his letter, which was dated 19 July 2002, the applicant requested the respondent to exercise the respondent's power under s 417 of the Migration Act 1958 (Cth) ('the Act'). By a letter dated 5 November 2002 the Minister advised the applicant: 'Your request for the exercise of my power under section 417 was referred to me. However, I have decided not to consider exercising my power in your case.' 5 On 4 December 2002 the respondent, by his solicitors, filed a notice of objection to competency. The grounds of the objection to competency are stated in the notice as follows: '1. The Court does not have jurisdiction to review the decision made by the Minister of Immigration and Multicultural and Indigenous Affairs ("the Minister") on 5 November 2002 as subsection 476(2) of the Migration Act 1958 ("the Act") provides that the Court does not have jurisdiction to review a decision of the Minister made under section 417 of the Act not to exercise, or not to consider the exercise, of the Minister's power. 2. The applicant has not identified any other decision that is sought to be reviewed. 3. However, if the Court is minded to find that the applicant seeks review of the decision made by the Refugee Review Tribunal on 27 March 2002 ("the Tribunal decision"), the Court has no jurisdiction to review the Tribunal decision as subsection 477(1) of the Act provides that an application to the Federal Court under section 39B of the Judiciary Act 1903 must be made within 28 days of the notification of the decision.' 6 The notice of objection to competency was listed for hearing on 19 December 2002. On that day the applicant appeared without legal representation but with the assistance of an interpreter. The applicant confirmed that the decision which he wished the Court to review was the decision made by the Minister following the request made by the applicant to the Minister that the Minister exercise his powers under s 417 of the Act. 7 Section 417 of the Act relevantly provides: '(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. … (7) The Minister does not have a duty to consider whether to exercise the power under subsection (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.' 8 Section 476(2) of the Act relevantly provides: 'Despite any other law … the Federal Court 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 … section … 417 or 454.' 9 The respondent placed reliance on the decision of the Full Court of this Court (Sackville, Allsop and Jacobson JJ) in Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 395. The Full Court in that case at [8] and [9] observed: 'In our opinion, the primary Judge was clearly correct to hold that s 476(2) of the Migration Act deprived this Court of jurisdiction to hear and determine a challenge to the Minister's refusal to consider the exercise of his powers under ss 48B and 417. This conclusion follows inexorably from the clear language of s 476(2) itself. The appellants advanced no cogent ground for challenging the constitutional validity of s 476(2) of the Migration Act. The Federal Court is a creature of statute and Parliament may determine the extent of its jurisdiction: see, generally, Abebe v Commonwealth (1999) 197 CLR 510. In any event, the appellants' claim for relief would be defeated by ss 48B(6) and 417(7) of the Migration Act. Each provides that the Minister does not have a duty to consider the exercise of the relevant power in respect of a non-citizen. As Hely J said in Kolotau v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1145, at [8]: "[r]elief cannot be available under s 39B of the [Judiciary Act 1903 (Cth)] by reason of the Minister's failure to consider a matter which the Migration Act specifically says that he is not obliged to consider".' 10 Not surprisingly, particularly as he did not have legal representation, the applicant was not able to advance any submissions to the Court in support of the competency of his application to the Court. 11 As the Full Court made plain in the case of Applicant NAGM of 2002, this Court does not have jurisdiction in respect of a decision of the Minister not to consider exercising his power under s 417 of the Act. 12 For the above reasons, on 19 December 2002, I ordered that the objection to competency be upheld and the application struck out. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.