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MIGRATION - Power of Federal Court and Federal Magistrates Court to review decisions made under s.48B of the Migration Act.

SZAAB v Minister for Immigration [2003] FMCA 20 (28 January 2003)

SZAAB v Minister for Immigration [2003] FMCA 20 (28 January 2003)
Last Updated: 6 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAB v MINISTER FOR IMMIGRATION
[2003] FMCA 20



MIGRATION - Power of Federal Court and Federal Magistrates Court to review decisions made under s.48B of the Migration Act.



Migration Act 1958 (Cth), ss.48A, B; 476(2)

NADE v Minister for Immigration [2002] FCA 549

Tave Tavalu v Minister for Immigration [2002] FCA 1027

NAQG of 2002 v Minister for Immigration [2002] FCA 1016

NAGM v Minister for Immigration [2002] FCA 884

NAPT v Minister for Immigration [2002] FMCA 2510

Re Minister for Immigration; Ex parte Applicant S190 of 2002 191 ALR 569

Applicant:
SZAAB



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 815 of 2002



Delivered on:


28 January 2003



Delivered at:


Sydney



Hearing date:


28 January 2003



Judgment of:


Raphael ACFM



REPRESENTATION

For the Applicant:


No appearance



Counsel for the Respondent:


Stephen Lloyd



Solicitors for the Respondent:


Sparke Helmore


ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 815 of 2002

SZAAB


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this matter the applicant, who claims to be a national of Fiji, sought a protection visa associated with a claim made about his son. That claim was dismissed by the Minister's delegate and by the Refugee Review Tribunal. A claim made on behalf of the son and certainly his mother, if not the applicant himself, for the Minister to exercise his discretion under humanitarian grounds was also made and rejected.

2. The applicant then sought from the Minister a decision to exercise his discretion under s.48B of the Migration Act 1958 (Cth) ("Migration Act") to allow him to make a further application for a protection visa on different grounds notwithstanding the existence of s.48A of the Act, which prohibits such an application by a person who is resident in Australia.

3. The application was sent to the Ministerial Interventions Unit and was considered not to meet the guidelines and therefore not passed to the Minister for his consideration. The applicant makes a claim in which he sets out five grounds of application, none of which have been substantiated by any evidence. However, the respondent has accepted that the request was not brought to the Minister's attention when the delegate made the decision which is ground 3 of the applicant's details of claim.

4. In NAPT of 2002 I dealt with a very similar case and in paragraph 4

I pointed out the following:

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

5. Since NAPT was decided, NAQG has been considered by a Full Bench of the Federal Court at [9] Her Honour said:

"In the present case the evidence does not permit a finding as to whether the Minister's guidelines were complied with. However, for the reasons which we have explained there has been no decision which any conceivable respondent was under a duty to make. On that narrow, but fundamental, point of administrative law the applicant's application was bound to fail and the appeal must accordingly be dismissed."

6. In addition, in Re Minister for Immigration; Ex parte Applicant S190 of 2002 191 ALR 569, Kirby J heard an originating application in the High Court of Australia. It had been suggested in the earlier Federal Court cases that it might be possible for a matter which was unable to be considered by the Federal Court or this court because of the provisions of section 476(2) of the Migration Act, to be considered by the High Court under s.75(v) of the Constitution.

7. Kirby J makes it clear in his decision that this avenue is not available. At [19] His Honour says:

"A constitutional writ under section 75(v) of the Constitution is only available for what are described as jurisdictional errors - errors going to the authority and power of a decision maker to do what was done. Although I have myself favoured a broader view, I am obliged at the level of this application to conform to the approach of the Full Court before whom any order nisi granted by me will be returned."

He goes on to say at [21]:

"Under current doctrine it is not incumbent on an official of Commonwealth, deciding even a matter so serious as a decision affecting an application for refugee status, to provide the reasons for that decision."

8. In the absence of any evidence from the applicant or his appearance here today, I am satisfied that there are no matters upon which this court would be able to grant review of the decision complained of.

I dismiss the application and I order that the applicant pay the respondents costs that I assess in the sum of $4,250.00 in accordance with the provisions of Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael ACFM

Associate:

Date:
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