NAFD v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant claims to be a citizen of Nepal. He arrived in Australia on 23 December 1995 under a visa that was valid until 29 February 1996. He has remained in Australia ever since that arrival. On 23 January 1996 he applied under the Migration Act 1958 (Cth) ("the Act") for the grant of a Protection (Class XA) Visa. On 9 April 1997 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. 2 By letter dated 28 February 2002, Messrs Parish Patience, solicitors, requested the Minister to exercise his power under s 48B of the Act and determine that s 48A does not apply to prevent a second application for a protection visa by the applicant. By letter of 25 March 2002, a delegate of the Minister informed Parish Patience that the request for the exercise of power under s 48B would not be referred to the Minister for consideration under s 48B. 3 On 8 April 2002 the applicant lodged an application to this Court. The application claims no relief, although it commences with the following: "I was refused by the Minister 25/03/2002. I would like to request to consider me for protection visa." The application makes no reference to any provision under which it is brought. In particular there is no reference to the Migration Act, s 39B of the Judiciary Act 1903 (Cth) or the Administrative Decisions (Judicial Review) Act 1977 (Cth). 4 The Minister has filed a 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. 5 Section 48A(1) of the Act 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." The applicant has not left Australia since the refusal of his original visa application on 9 April 1997. Clearly, therefore, s 48A applies to the applicant, in relation to any application for a protection visa made after that date. 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." 6 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 privative clause decision: (a) is final and conclusive;

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 7 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 s 39B of the Judiciary Act. 8 The decision that is the subject of the application is a privative clause decision within the meaning of s 474(2). It is a decision of an administrative character made, required to be made or proposed to be made under the Act. 9 Further, s 476(2) of the Act provides as follows: "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]." 10 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. 11 While it seems likely that the Minister has not personally turned his mind to the question of whether or not to exercise the power 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 to the Minister an application under s 48B of the Act - 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. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

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