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MIGRATION - Application for review of decision of delegate to the Minister - and of Minister under s.48B - powers in nature of non-compellable discretion - no jurisdiction to review - no appearance of applicant - application dismissed.

NAPT v Minister for Immigration [2002] FMCA 251 (16 October 2002)

NAPT v Minister for Immigration [2002] FMCA 251 (16 October 2002)
Last Updated: 25 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAPT v MINISTER FOR IMMIGRATION
[2002] FMCA 251



MIGRATION - Application for review of decision of delegate to the Minister - and of Minister under s.48B - powers in nature of non-compellable discretion - no jurisdiction to review - no appearance of applicant - application dismissed.



Migration Act 1958 (Cth) ss.48B, 415, 417, 476

Judiciary Act 1903 (Cth) s.78B

NADE v MIMIA [2002] FCA 549

Tova Tavalu v MIMIA [2002] FCA 1027

NAQG of 2002 v MIMIA [2002] FCA 1016

NAGM v MIMIA [2002] FCA 884

Applicant:
NAPT



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 597 of 2002



Delivered on:


16 October 2002



Delivered at:


Sydney



Hearing Date:


16 October 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


No appearance



Solicitors for the Respondent:


Mr G Peek of Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant pay the Respondent's costs in the sum of $3,000.00 pursuant to Part 21.02(2) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 597 of 2002

NAPT


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this matter, the applicant, a national of Tonga, seeks orders of review of the decision of a delegate of the Minister, given on 11 July 2002. The decision which was made was one not to refer to the Minister an application for a request under section 417 of the Migration Act. This is a section which allows the Minister, if he considers it is in the public interest so to do, to substitute for a decision made under section 415 another decision more favourable to the applicant. It is important to note that section 417(8) says:

"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."

2. It was suggested by Mr Peek for the Minister that there may also be some question of a request to the Minister to exercise his powers under 48B of the Migration Act which allows him to allow a non-citizen to make a second application for refugee status. That decision was made on 3 July 2002 when the department wrote to the applicant advising him that his case did not meet the guidelines and would not be referred to the Minister for consideration under section 48B.

3. In the grounds of the application, it is suggested that the delegate did not have the jurisdiction to make the decision; the delegate was not acting in good faith in making the decision; that the requests were not brought to the attention of the Minister when the delegate made the decision; and that the decision exceeded the limits set out in the Commonwealth constitution, and involved section 78B of the Judiciary Act. No evidence has been tendered on the first three of these claims and the applicant has not appeared today.

4. These applications are almost identical in form to applications made on behalf of other Tongan nationals in cases NADE v MIMIA [2002] FCA 549; Tova Tavalu v MIMIA [2002] FCA 1027; NAQG of 2002 v MIMIA [2002] FCA 1016; and NAGM v MIMIA [2002] FCA 884. In those cases, variously Tamberlin, Branson, Moore and Emmett JJ, made findings that the Minister's powers under section 48B or 417 were powers in the nature of non-compellable discretion and that the provisions of section 476(2) of the Migration Act clearly excluded this Court and the Federal Court from the exercise of any jurisdiction in respect of decisions made under those sections.

5. Nothing has been addressed to me today (and there is nothing in the papers) that would indicate any reason why I should cavil with those decisions of the Federal Court and I do not propose to do so. I am satisfied that the application is incompetent and I dismiss it and order that the applicant pay the respondent's costs, which I assess, pursuant to Part 21.02(2) of the Federal Magistrates Court Rules, in the sum of $3,000.00.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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