SZBKT v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is a citizen of Fiji who arrived in Australia on 31 October 2001. On 10 December 2001 he applied for a protection visa. A delegate of the Minister refused the application on 12 February 2002. On 14 January 2003 the Refugee Review Tribunal (the Tribunal) handed down a decision affirming the decision of the delegate. On 10 January 2003, shortly prior to the Tribunal handing down its decision, the applicant wrote to the Minister requesting that the Minister exercise his public interest power under s 417 of the Migration Act 1958 (Cth) (the Act). 2 In a letter dated 22 August 2003, the Department notified the applicant that on 14 August 2003 the Minister had decided not to exercise his power under s 417. 3 On 11 September 2003 the applicant applied to the Federal Magistrates Court for Judicial review of the Minister's decision. 4 On 9 October 2003 the respondent filed a notice of objection to competency on the basis that the Federal Magistrates Court did not have jurisdiction in respect of a decision under s 476(2) of the Act. 5 On 22 October 2003 Federal Magistrate Driver made orders summarily upholding the notice of objection to competency. The orders made by the learned Federal Magistrate were as follows: 1. The application filed on 11 September 2003 is struck out. 2. The applicants have leave to file an amended application identifying a decision of the Refugee Review Tribunal sought to be reviewed and specifying the grounds on which the review application is made. 3. The applicants are to pay the respondent's costs and disbursements of and incidental to the application filed on 11 September 2003, fixed in the sum of $500. 4. If no amended application is filed within 28 days pursuant to order 2, the application is dismissed. 6 On 14 November 2003 the applicant filed a notice of motion in this court supported by an affidavit sworn by him seeking leave to appeal from the orders of Federal Magistrate Driver and applying for an extension of time for leave to appeal. 7 The orders of Federal Magistrate Driver were interlocutory in the nature of orders to strike out the application and otherwise summarily dismiss it. Leave is required. The applicant is out of time and requires an extension of time. The affidavit of the applicant provides no explanation as to why an application for leave was not filed within time. It asserts that the decision of the Minister not to exercise his power under s 417 was done in bad faith. No particulars are given. A Constitutional issue is asserted to the effect that the Constitution prevented Parliament from legislating so as to interfere with judicial power and that s 476 of the Act impermissibly does so. The draft notice of appeal annexed to the affidavit asserts error in the Federal Magistrate in failing to appreciate the Constitutional issue and further asserts the exercise of the power by the Minister was in bad faith. 8 In argument before me the applicant sought the Court's assistance to obtain legal aid. I have given consideration to the operation of Order 80 of the Federal Court Rules. I do not think it appropriate to refer this matter to the Bar Association. 9 There is no explanation for the delay, albeit short, in filing the application for leave. There is no prospect of success of the underlying application and therefore the underlying appeal. Section 476(2) of the Act deprives the Court and the Federal Magistrates Court of jurisdiction to hear and determine a challenge to the Minister's refusal to consider exercising the power conferred by s 417 of the Act: Applicant NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395. Even if s 476(2) does not have that effect (as it plainly does) the terms of s 417(7) make the issue of writs based on jurisdictional error unlikely: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte S134/2002 (2003) 211 CLR 441. 10 In the circumstances I do not think it is appropriate to extend time to file an application for leave to appeal. If I am wrong about that or if I were to have extended time I would not grant leave to appeal. 11 The orders that I make are: