FEDERAL COURT OF AUSTRALIA

Kolotau v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1145

MIGRATION – judicial review – application to review decision of Minister not to exercise power under s 351 Migration Act 1958 (Cth) – notice of objection to competency lodged – application bound to fail

COSTS – application for costs against unpaid representative of applicants – respondent consented to representative appearing without notifying representative that respondent would seek costs against him personally if application unsuccessful – whether Court should exercise discretion to award costs against a non-party

Migration Act 1958 (Cth) s 351, 351(7), 476(2)

Judiciary Act 1903 (Cth) s 39B, 78B(2)(c)

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

NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1016 referred to

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 followed

NADE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 549 referred to

NAFD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 570 referred to

NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1044 considered

SIONE LOARSALU KOLOTAU & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 733 OF 2002

HELY J

5 SEPTEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicants are citizens of Tonga who entered Australia lawfully.  The first applicant entered Australia on 14 August 1993 on a temporary entry permit; the second applicant entered Australia on 27 November 1996 also on a temporary entry permit. 

2                     Thereafter each applicant lodged an application for permanent residence.  On 31 March 1999 the Immigration Review Tribunal (“IRT”) affirmed the decision of the Minister's delegate to refuse to grant a Change in Circumstance (Residence) (Class AG) subclass 806 visa to the first applicant.  On 5 October 1999 the Migration Review Tribunal (“MRT”) affirmed the decision of the Minister's delegate not to grant a Change in Circumstance (Residence)(Class AG) subclass 806 family visa to the second applicant. 

3                     On 23 October 2000 the Minister received a request from the first applicant under s 351 of the Migration Act 1958 (Cth) (“the Migration Act”) asking the Minister to consider substituting for the decision of the IRT a decision more favourable to the first applicant on the ground that it was in the public interest to do so.  On 3 November 2000 the first applicant was advised that his case had been referred to the Minister.  However, on 25 June 2002 the Minister decided not to consider exercising his power in his case. 

4                     On 2 January 2001 the Minister received a request made under s 531 of the Migration Act from the second applicant asking the Minister to consider substituting for the decision of the MRT a decision more favourable to the second applicant.  On 25 June 2002 the Minister decided not to exercise his s 351 power in the case of the second applicant.

5                     On 22 July 2002 the applicants applied to this Court for a review of the Minister's decisions of 25 June 2002.  The grounds on which review is sought are the following:

“1.       The decision of the respondent Minister given on 25 June 2002 the applicants claim that the decision was not in public interest and involved an error of law.

2.         The respondent was not acting in good faith in making the decision.

3.         The changes to the Migration Act under ss 474, 475, 476 involved a matter arising under the Constitution or involving its interpretation within the meaning of s 78B Judiciary Act 1903.”

6                     On 15 August 2002 the respondent lodged a Notice of Objection to the competency of the application on the ground that s 476(2) of the Migration Act provides that the Federal Court of Australia does not have jurisdiction in respect of a decision of the respondent not to exercise, or not to consider the exercise, of his power under s 351 of the Migration Act.  Section 351(1) of the Migration Act is as follows:

“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.”

Section 351(7) of the Migration Act provides as follows:

“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.”

7                     Section 476(2) of the Migration Act provides that the Federal Court does not have jurisdiction in respect of a decision by the Minister not to exercise or not to consider the exercise of the Minister's power under various sections of the Migration Act including s 351. 

8                     It seems to me, that apart altogether from s 476(2) of the Migration Act, this application is bound to fail by reason of the provisions of s 351(7) of the Migration Act.  Relief cannot be available under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) by reason of the Minister's failure to consider a matter which the Migration Act specifically says that he is not obliged to consider.  That was the view adopted by Moore J in Tavalu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1027, in particular at par [5].  It was also the view adopted by Branson J in NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1016, in particular at par [6].

9                     For this reason alone, the application should be dismissed.  It is also clear that if s 476(2) of the Migration Act is constitutionally valid that would provide a further reason for concluding that this Court has no jurisdiction to entertain the application.   The constitutional validity of the group of provisions which includes s 476 was recently upheld by the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.  In NADE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 549 and NAFD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 570, Emmett J dismissed relevantly similar applications upon the basis of s 476(2). 

10                  There is in the file a s 78B notice which was filed on 29 August 2002.   I am informed by Ms Nanson that that notice has been received by, or on behalf of, the Commonwealth Attorney-General, but I have no information as to the position in relation to the Attorneys-General of the States and if that notice has been served upon them, it can only have been very recently.

11                  Mr Fonua is a friend of the applicants.  The applicants asked during the course of the hearing that he be permitted to address the Court and he did so.  He said that it was unconstitutional for the Parliament to interfere with the Courts under ss 474, 475 and 476, but did not otherwise elaborate upon what is said to be the applicant's constitutional argument, nor did he put any submissions as to the effect of the Full Court decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (supra) upon the constitutional questions.

12                  It might therefore reasonably be concluded that whilst the existence of a constitutional question is asserted, at least so far as I am concerned, the decision of the Full Court in NAAV ( supra) establishes that there is no remaining genuine constitutional issue.  However, Ms Nanson was not able to refer me to any authority which would enable me to dismiss the matter under s 476(2) in the face of the s 78B notice which has been served.

13                  I therefore propose to adopt the same course as was adopted by Moore J in Tavalu (supra) in reliance on s 78B(2)(c) of the Judiciary Act and to resolve the issue without recourse to s 476 of the Migration Act.  For the reasons which I have earlier given, the application is bound to fail because of the provisions of s 351(7) of the Migration Act, and for that reason I dismiss the application.

14                  The Minister has sought an order that Mr Fonua should pay the Minister's costs of the proceedings.  So far as today is concerned, Mr Fonua's involvement arose in this way.  The applicants who were endeavouring to address the court with the assistance of an interpreter asked me if I would be prepared to let "their friend" speak to the Court on their behalf and indicated that Mr Fonua was that friend.  I inquired of Ms Nanson as to whether the respondent had any objections to my adopting that course and I was told that the respondent had no such objections. 

15                  Accordingly, I indicated to Mr Fonua that I was prepared to listen to what he had to say and I did so.  Nothing was said by Ms Nanson at that time to alert either Mr Fonua or, for that matter, me, that a consequence of my giving Mr Fonua the permission to address the Court, was that the Minister would seek an order for costs against Mr Fonua if the proceedings were dismissed.  In those circumstances, I am not prepared to exercise any discretion which I have to make an order for costs against Mr Fonua because it seems to me to be quite unfair to do so in the face of the respondent's specific consent to his addressing the Court in these proceedings.

16                  I have had handed to me a copy of the decision of Branson J in NAQG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1044 where her Honour considered whether costs orders should be made against Mr Fonua, upon the basis that he had caused proceedings to be instituted in the Court which proceedings were an abuse of the process of the Court.  Ultimately, her Honour did not make an order for costs against Mr Fonua because her Honour concluded that Mr Fonua may not have understood the extent to which his conduct was inappropriate.

17                  At par [22] of her Honour's reasons for decision she said that this factor is unlikely to be one upon which Mr Fonua will be able to rely should a similar case arise in the future.  I do not, with respect, disagree with anything her Honour said in that case.   I have no materials before me which would establish that it was Mr Fonua who was responsible for the institution of these proceedings but, more particularly, I decline to make a costs order for the reasons which I have already indicated; namely, that the Minister consented to Mr Fonua addressing the Court without alerting him to risks to which he might be exposed if he did so.  The application for an order for costs against Mr Fonua is refused.  Accordingly, I order the applicants to pay the respondent’s costs.

Associate:

Dated:              13 September 2002