NARP v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is the hearing of a notice of objection to competency to an application to this Court which was made purportedly under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") and also refers to s 475A of the Migration Act 1958 (Cth) ("the Act"). 2 The decision concerned, is a decision by an officer of the respondent in the principal proceedings, not to refer to the Minister for consideration under s 48B of the Act, a request that the Minister consider exercising his personal discretion under that section. 3 The applicant, who is a Tongan national, sought a protection visa in 1997. He was quite open about his concerns which were primarily economic, though he also mentioned some sociological features of Tonga's distinct social structure. The delegate, one would think inescapably, refused the application because it had little to do with persecution for a Convention reason. The delegate held that the applicant was not a refugee within the meaning of the Convention. 4 The applicant attempted to make a second application for a protection visa on 24 January 2000, and soon after, a departmental officer declined to refer the application to the Minister for his consideration under s 48B. 5 On 14 April 2003, Mr George Fonua, frequently in the background and sometimes in the foreground of the cases concerning Tongan citizens in this Court, describing himself as a Tongan interpreter, wrote to the Minister and said he had been requested by the applicant to prepare a submission with respect to Ministerial intervention under s 48B of the Act. He stated that the applicant had been informed about the limited operation of s 48B, but nevertheless sought an assessment "based on broad humanitarian grounds", which might "permit the applicant further lawful stay in Australia". 6 It appears that the applicant first came to Australia in 1988 and stayed here for four years, departing for Tonga on 27 May 1992. While in this country he commenced a relationship with a woman called Ana Toa who bore a child to him on 14 April 1991. Apparently the child is an Australian citizen and presently attends high school here. The applicant somehow arrived back in Australia on 10 January 1997 and has managed to stay here since. 7 Mr Fonua, in his letter of 14 April 2003, referred to the International Covenant on Civil and Political Rights and stressed the difficulties for the applicant's child if the applicant had to depart Australia. He urged the Minister to "carefully consider this request as a special case". An officer of the respondent's department, Mr Barrett, on 20 May 2003 wrote to the applicant saying: 'The 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 section 48B. No further action will be taken in respect of this matter.' 8 The principal application to the Court alleges that the decision was incorrect and wrong in law. It is said that the application "involves" s 78B of the Judiciary Act. It is also said that the decision was otherwise contrary to law and that s 75(1) of the Constitution was "also involved" in the decision not to refer the matter to the Minister for a "personal decision".

9 There was nothing to indicate that Mr Barrett was exercising any power delegated to him by the Minister. He appears simply to have been a departmental officer considering what to do with Mr Fonua's letter and, in particular, whether it should be referred to the Minister. 10 The objection to the Court's competency is that the Court has no jurisdiction in the matter because s 476(2) of the Act has the effect that this Court does not have any jurisdiction in respect of a decision of the respondent not to exercise or not to consider the exercise of his power under s 48B of the Act. 11 Section 48A of the Act provides that a non-citizen who has been refused a protection visa may, subject to s 48B, not make a further application for a protection visa while in the migration zone. Section 48B gives the Minister a power, if he thinks it is in the public interest to do so, to determine that s 48A does not apply to prevent further application for a protection visa made by a particular non-citizen. That power may only be exercised by the Minister personally and is attended by a requirement that the Minister should, in every case where he makes such a determination, cause to be laid before both Houses of Parliament a statement of his reasons for so doing. 12 Section 48B(6) provides that "The Minister does not have a duty to consider whether to exercise the power under subsection (1) [to which I have referred] in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances". 13 In a number of cases it has been held that s 48B does not impose any duty on a departmental officer to bring a matter to the Minister's attention and that, as long as departmental officers act in accordance with the guidelines referred to by Mr Barrett in his letter declining to refer the matter to the Minister, the officer is not required to bring the application to the Minister's attention, nor is the Minister obliged to consider it. See, for example, Bedlington v Chong (1998) 87 FCR 75. The Full Court, Black CJ, Kiefel and Emmett JJ said in that case at 80: 'The guidelines constitute the Minister's determination, in advance, of the circumstances in which he would consider exercising the power. By the guidelines, the Minister was, in effect, saying:

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