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MIGRATION - Review of a decision of the Minister not to consider exercising his power to substitute a more favourable decision under s.417 of the Migration Act - objection to competency - jurisdiction.

PRACTICE AND PROCEDURE - Adjournment request - absence of the applicant's adviser overseas - whether the adviser a person entitled to represent the applicant in court considered - whether the absence of the adviser overseas a relevant consideration.

SZAAM v Minister for Immigration [2003] FMCA 219 (26 March 2003)

SZAAM v Minister for Immigration [2003] FMCA 219 (26 March 2003)
Last Updated: 19 June 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAM v MINISTER FOR IMMIGRATION
[2003] FMCA 219



MIGRATION - Review of a decision of the Minister not to consider exercising his power to substitute a more favourable decision under s.417 of the Migration Act - objection to competency - jurisdiction.

PRACTICE AND PROCEDURE - Adjournment request - absence of the applicant's adviser overseas - whether the adviser a person entitled to represent the applicant in court considered - whether the absence of the adviser overseas a relevant consideration.



Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth), ss.351, 417, 476

Purcell & Rix (No 1) [2002] FMCAfam 65

Applicant:
SZAAM



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ908 of 2002



Delivered on:


26 March 2003



Delivered at:


Sydney



Hearing date:


26 March 2003



Judgment of:


Driver FM



REPRESENTATION

No appearance by the applicant

Solicitors for the Respondent:


Mr Z Chami

Clayton Utz


ORDERS

(1) The objection to competency is upheld.

(2) The application is dismissed.

(3) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ908 of 2002

SZAAM


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This ex tempore judgment relates to an application to review a decision communicated to the applicant on 2 September 2002, apparently made by the Minister for Immigration. An objection to the competency of the application for review was filed on 8 November 2002. The Minister objects to the competency of the application on the basis that the application seeks to review a decision by the Minister pursuant to s.417 of the Migration Act 1958 (Cth) ("the Migration Act") which is expressly excluded from the jurisdiction of this Court pursuant to s.476(2) of the Migration Act. An affidavit filed on 16 October 2002 by Rohan Michael Higgins supports the objection to competency.

2. Prior to the hearing of this matter this afternoon, a letter was received by the Court from a Mrs Y Khan, dated 17 March 2003. In that letter Mrs Khan seeks an adjournment of today's hearing on the basis that a Mr Khan, who is apparently a migration agent assisting the applicant (and I assume a relative of Mrs Khan), is overseas. A perusal of the application filed by the applicant on 25 September 2002 gives an address for service at 3/3 High Street, Harris Park, and also identifies as a lawyer for the applicant a consultant with the word "lawyer" struck out, and a postal address. The letter from Mrs Khan dated 17 March 2003 also gives the postal address of the migration consultants.

3. In the circumstances, it is unclear whether the applicant is representing himself or whether a migration agent is acting for him. I was told this afternoon by Mr Chami, for the Minister, that a migration agent, Mr Khan, appeared on behalf of the applicant at a directions hearing last year.

4. Unless Mr Khan is an admitted legal practitioner, he would have no entitlement to represent the applicant in proceedings in this Court. As I made clear in Purcell & Rix (No.1) [2002] FMCAfam 65, in proceedings in this Court, applicants are entitled to be represented by an admitted practitioner, under the Judiciary Act 1903 (Cth) or, alternatively, they can represent themselves. They are not entitled to be represented by anyone else, although the Court may grant leave for an unqualified person to appear on behalf of an applicant. As I noted in Purcell & Rix, that leave will be sparingly granted. In the circumstances, and in the absence of any leave granted by the Court, Mr Khan is not entitled to act for the applicant and his absence overseas at the present time is not determinative of the question as to whether there should be an adjournment.

5. Both the migration agents and the applicant personally have been informed by letter from the Court that the matter would be listed as already advised at 2.15pm today for hearing and that any request for an adjournment should be made in person in court today. There was no appearance on behalf of the applicant when the matter was called at 2.20pm today. I am not persuaded that the absence of Mr Khan overseas is sufficient justification for adjourning the hearing of this matter.

6. In addition, I note that on the basis of the objection to competency, no purpose would be served by the adjournment. It is plain from the objection to competency, the respondent's submissions filed in support of the objection on 5 March 2003 and the affidavit of Rohan Michael Higgins, that the applicant is attempting to have reviewed in this Court a decision by the Minister for Immigration not to consider exercising his discretion under s.417 of the Migration Act.

7. Clearly, pursuant to s.476(2) of the Migration Act the jurisdiction of this Court does not extend to a review of such a decision. This Court has, on several occasions, ruled that the Court lacks jurisdiction to review an exercise of discretion or a decision not to consider exercising discretion under s.351 of the Migration Act. There is no relevant difference between that circumstance and the situation concerning s.417. In both cases the jurisdiction of the Court is specifically excluded by s.476(2).

8. I find that the objection to competency is well founded and that I should dismiss the application as incompetent, and I will so order.

9. I am satisfied that the Minister is entitled to an order for costs. Having heard Mr Chami, I conclude that an order for costs in the sum of $2,000 would be appropriate. I will order that the applicant pay the Minister's costs of and incidental to the application, which I fix in the sum of $2,000.


I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 6 June 2003
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