FEDERAL COURT OF AUSTRALIA

Tang v MIMA [2001] FCA 1491

XIAN HUI TANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 1032 OF 2001

NORTH J

24 SEPTEMBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application is struck out.

2.                  The applicant is to pay the respondent’s costs of and incidental to this application.

3.                  The order in paragraph 2 is stayed until further order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 21 September 2001 the applicant, Mr Xian Hui Tang, filed an application in the Court.  As the applicant was in detention, the matter was listed urgently for directions.  As a result, the matter has come on today, 24 September 2001.

2                     The application is handwritten and the applicant seeks to be freed from the detention centre and to have the opportunity to apply for a protection visa.  The applicant contends that if he is returned to the People’s Republic of China he will be persecuted due to his practice of Falun Gong.

3                     When the matter came on for directions, the respondent believed that the application related to the decision of the Refugee Review Tribunal (the RRT) refusing a protection visa to the applicant.  That decision had been made on 5 November 1997.  Consequently, any application to this Court would have been well out of time.

4                     When this matter was raised with the applicant, he explained that his application related to the refusal by the Minister to further consider an application under s 417 of the Migration Act 1958 (Cth) (the Act).  It seems that the applicant had made a prior application under s 417 of the Act, which was determined in June 1998.

5                     In early August this year the applicant was apprehended by the police for apparently unrelated matters.  The Department of Immigration and Multicultural Affairs (the Department) apparently formed the view that he should have been detained in immigration detention.  Consequently, he was then placed in immigration detention.  It seems that while in detention he made a further request to the Minister under s 417 of the Act.  In response to that application, the Minister replied by a letter dated 14 September 2001 as follows:

“I refer to your letter of 15 August 2001 requesting the Minister for Immigration and Multicultural Affairs to exercise his public interest power under section 417 of the Migration Act 1958 (the Act). 

As you are aware, on 30 June 1998 the case was brought to the Minister’s attention and he decided not to consider the exercise of his public interest power.

The Minister has directed that, if a case has previously been brought to his attention he does not wish to have it brought to his attention again, unless new information is provided that brings it within his Guidelines. 

This case has again been reassessed in the light of your letter and submissions.  It does not fall within the Minister’s Guidelines for referral to him. 

No further action will be taken in respect of your request. 

An officer of the Department will contact you to discuss your status in Australia.”

6                     Section 417(1) provides:

“If the Minister thinks 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 decision.”

7                     The jurisdiction of the Court depends upon the decision in question falling within the description of a judicially-reviewable decision under the Act (see ss 486 and 476).  Therefore, the question is whether a decision to refuse to consider the exercise of power under s 417 is a judicially-reviewable decision.  Section 475(2)(e) provides the answer.  It says, so far as is relevant, “a decision of the Minister not to exercise, or not to consider the exercise of, his or her power under … section 417” is not a judicially-reviewable decision.

8                     Consequently this application is not competent and must be struck out.

9                     The applicant has raised with the Court his fear that the Department may seek to deport him quickly, without giving him an adequate opportunity to explore his legal rights.  It is not within the power of the Court in this application to prevent the respondent from taking any steps which he lawfully can take.  It may be that the applicant has legal rights which can be litigated in the High Court.  It may also be that the applicant is entitled to apply for a second protection visa.

10                  I say both of these things without having heard whether the applicant has any basis in law for such relief.  They are only referred to in this judgment as a formal record for the benefit of the applicant - who may wish to exercise rights under Australian law - and so that the respondent is aware and takes no steps to prevent any lawful exercise of such rights.  I do not mean to imply that the respondent would take such steps, but simply to record that the applicant may wish to take some further action.

11                  It is accepted by the applicant that he must pay the respondent’s costs of the application.  He did, however, say that he is unable to pay those costs.  This has not been controverted by the respondent.

12                  The applicant is in detention and consequently will not be able to earn any income.  He has satisfied me on the basis of this material that the order for costs should be stayed.  When the applicant’s position becomes clearer, the respondent is entitled to bring the matter back before the Court to ask that the stay be lifted.

Associate:

Dated:              23 October 2001