FEDERAL COURT OF AUSTRALIA

NAGM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 884

MIGRATION – applicants sought review of decision by delegate not to refer to the Minister an application to exercise discretionary powers – whether application incompetent – whether Court precluded from reviewing decision – Notice under s 78B of the Judiciary Act 1903 (Cth) – whether Notice raises constitutional issue

Migration Act 1958 (Cth) ss 48B, 417, 476

Judiciary Act 1903 (Cth)s 78B

NADE v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 549 referred to

NAGM, NAGN, NAGO AND NAGP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 337 of 2002

TAMBERLIN J

SYDNEY

17 JUNE 2002

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicants to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     In this matter the applicants seek review of a decision of an officer of the Department for Immigration and Multicultural Affairs (“the Department”) made on 11 April 2002 in which the officer stated that an application under s 48B of the Migration Act 1958 (Cth) (“the Act”) for the Minister of Immigration and Multicultural and Indigenous Affairs (“the Minister”) to exercise ministerial discretion and thus allow the applicants to make a further application for a protection visa would not be referred to the Minister because it was considered that the application had not met the guidelines laid down by the Minister.

2                     Section 48A of the Act specifies that a non-citizen in the migration zone may not make a further application for a protection visa whilst in that zone if their original application had been refused.  The power which is challenged is the decision not to refer the application relating to s 48B of the Act to the Minister.  This section enables the Minister, if he thinks it is in the public interest to do so, to determine that s 48A does not apply to prevent a further application for a protection visa being made by the non-citizen.  The power may only be exercised by the Minister personally.  However, pursuant to subs (6), the Minister does not have a duty to consider whether to exercise the power in respect of any non-citizen.

3                     The respondent has taken an objection to the application on the basis that it is incompetent because under s 476(2) of the Act in so far as the Federal Court does not have jurisdiction in respect of a decision of the Minister not to exercise or not to consider the exercise of the Minister's power under ss 48B and 417 of the Act.  It seems to me that in relation to s 48B, the application is within s 476(2) of the Act and therefore the Act prevents this Court having jurisdiction to consider the exercise of power in relation to that provision.

4                     A similar question was referred to and considered by the Court in the case of NADE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 549 and the Court held that the review of the decision of a failure to consider the exercise of power under s 48B was not available.  For similar reasons I am of the view that the present application in relation to s 48B of the Act should be dismissed.

5                     There is another ground on which the application is made and that relates to the Minister's exercise of power under s 417 of the Act.  The position of the Minister in relation to that section is that there has been no decision made by the Minister or a ministerial delegate in relation to that provision because the relevant application was withdrawn and accordingly there was no basis for making any decision under that section.  I consider that there is substance in this submission and I do not accept the submission of the applicants in relation to this ground of the application.

6                     On the hearing this afternoon the applicants have produced to the Court a notice under s 78B of the Judiciary Act 1903 (Cth) purporting to raise a constitutional question.  There is no formulation of the question in any precise terms and this is understandable given the complexity of the matter and the difficult position in which applicants such as the present find themselves on an application of this nature.

7                     The constitutional issues that were said to arise are whether ss 474, 475 and 476 of the Act are invalid.  However, the grounds of the application are simply directed to the provisions of s 474 and there is no specification of any particular constitutional question apart from a repetition of the section and an allegation that it is unconstitutional for the Commonwealth Parliament to enact such a provision.  This notice does not in my view raise any constitutional point in relation to the operation of s 476 of the Act which is decisive in the present case in relation to the grounds of application under s 48B and s 417 of the Act.

8                     Accordingly I am not persuaded that in the present case the application is competent and I dismiss the application on the basis that I am constrained to do so by the requirements of s 476(2) of the Act and also having regard to the withdrawal of the relevant application relating to s 417 of the Act.

9                     In relation to the question of costs the normal principle is that the costs follow the outcome and must be paid by the losing party on an application such as the present.

10                  I note what has been said on behalf of the applicants but no reason has been shown why the normal rules should not apply and accordingly I would require the applicants to pay the costs of the respondent in this matter.

Associate:

Dated:              17 July 2002