FEDERAL COURT OF AUSTRALIA

Tavalu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1027

Judiciary Act 1903 (Cth), ss 39B, 78B

Migration Act 1958 (Cth), ss 351, 474, 475, 476

Bedlington v Chong (1998) 87 FCR 75

SILIA TAVALU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 791 OF 2002

MOORE J

15 AUGUST 2002

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant 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                     On 2 August 2002 an application was filed by Ms Silia Tavalu under s 39B of the Judiciary Act 1903 (Cth).  The matter was listed shortly after filing for directions on 8 August 2002 because steps were being taken by the Minister to remove the applicant from Australia on the weekend of 11-12 August 2002.  I indicated at the directions hearing I could hear the matter as an urgent one and on that basis it was listed for hearing on 15 August 2002.  The solicitor then appearing for the Minister said that in those circumstances the removal of the applicant would not take place at the weekend but would await the hearing and determination of the application.

2                     At the hearing a Mr Fonua appeared for the applicant with the Court’s leave.  The issue sought to be raised concerned a decision made under s 351 of the Migration Act 1958 (Cth).  That section provides:

“(1)     If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

(2)       In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations but is bound by all other provisions of this Act.

(3)       The power under subsection (1) may only be exercised by the Minister personally.

…

(7)       The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.”

3                     On 9 July 2002, a letter was sent by the Department of Immigration and Multicultural and Indigenous Affairs to Mr Joseph Taufaeteau, a solicitor from the firm Taufaeteau and Co which had earlier acted for the applicant.  In that letter, it is said (in relation to s 351):

“Ms Tavalu’s case was referred to the Minister. However on 25 June 2002 he decided not to consider exercising his power in this case.”

Mr Fonua contended that any decision that may have been made not to exercise the powers under s 351(1) had to be made by the Minister.  In this case, it was submitted, the decision had not been made by the Minister.  Mr Fonua pointed to s 351(3), which says that the power under s 351(1) may only be exercised by the Minister personally. 

4                     The only evidence before me as to the manner in which the decision was made is the letter of 9 July 2002.  From this letter it might be inferred that the Minister on 25 June 2002 made a decision not to consider exercising his power in this case.  The applicant has been unable to produce any evidence which would suggest that the inference should not be drawn.  I find that on 25 June 2002, such a decision was made and the decision was made by the Minister.  In those circumstances, the contention made by Mr Fonua on behalf of the applicant lacks a factual foundation.

5                     Even if, however, the decision not to exercise the power conferred by s 351(1) was not made by the Minister it is not apparent how in proceedings under s 39B of the Judiciary Act 1903 (Cth) there would be an enforceable right to require the Minister to exercise a duty to consider whether to exercise the power under s 351(1).  That is because of s 351(7).  The Minister is not under an enforceable duty to personally decide not to exercise the power: see Bedlington v Chong (1998) 87 FCR 75.

6                     I should mention one other matter.  On 14 August 2002 a notice was filed by the applicant under s 78B of the Judiciary Act 1903 (Cth).  It put in issue the validity of ss 474, 475 and 476 of the Migration Act 1958 (Cth).  Were those sections ultimately of relevance to the determination of this application, it would have been necessary for the procedural steps provided for in s 78B to be followed.  Indeed, Mr Fonua at one point submitted that the hearing on 15 August 2002 could not proceed because those steps had not yet been taken.

7                     However s 78B(2)(c) enables a Court to continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution involving its interpretation.  In my opinion, the applicant’s application is susceptible of resolution without recourse to ss 474, 475 and 476 of the Migration Act 1958 (Cth).  Indeed, it would not be a large step to infer that the notice was filed for the purposes of delaying the hearing with the practical effect of enabling the applicant to remain in Australia for a period longer than otherwise might be the case. 

8                     For the above reasons, the application should be dismissed with costs.

Associate:

Dated:              19 August 2002

Mr Fonua granted leave to appear on behalf of the Applicant.