Egounova v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 49 (2 February 2004)

Last Updated: 4 February 2004

FEDERAL COURT OF AUSTRALIA

Egounova v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 49

ANNA EGOUNOVA (BY HER NEXT FRIEND OLGA EGOUNOVA) v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS


N 1299 of 2003





BRANSON J
2 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1299 of 2003

BETWEEN:	ANNA EGOUNOVA (BY HER NEXT FRIEND OLGA EGOUNOVA) APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	2 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The objection to competency be upheld.
2.	The application for an order of review be struck out.
3.	There be no order as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1299 of 2003

BETWEEN:	ANNA EGOUNOVA (BY HER NEXT FRIEND OLGA EGOUNOVA) APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	2 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant, by her next friend, the applicant’s mother, on 2 September 2003 filed an application for an order of review. In the section of the application were space is provided to specify the reviewable decision, the applicant’s next friend has written:

‘Minister for Immigration and Multicultural and Indigenous Affairs which was received on 12/08/03.’

2 The date 12/08/03 is the date of a letter from the Minister for Immigration and Multicultural Affairs (‘the respondent’) addressed to Mr Peter King MP, the member for Wentworth. Mr King MP had written to the respondent on 28 April 2003, on behalf of the applicant and the applicant’s mother.

3 The applicant, a citizen of Russia, arrived in Australia on a visitor visa with her mother and sister in February 1998. They unsuccessfully applied to the Department of Immigration and Multicultural Affairs for protection visas. On 4 October 2000 the Refugee Review Tribunal (‘The Tribunal’) affirmed the decision not to grant the applicant, her mother and her sister protection visas. A judge of the Federal Court dismissed an application for judicial review of the Tribunal decision. An appeal against the decision of the judge was dismissed by the Full Federal Court.

4 By his letter dated 28 April 2003 Mr King MP requested that the respondent exercise his Ministerial discretion under s 417 of the Migration Act 1958 (Cth) (‘the Act’) to substitute in the public interest a more favourable decision than the Tribunal’s decision of 4 October 2000. Mr King MP observed that the applicant’s older sister had gained permanent Australian residency on the basis of a Close Ties subclass 832 visa.

5 By his letter of 12 August 2003 the respondent informed Mr King MP that he would not consider exercising his discretion. He advised that the case had previously been brought to his attention and he had on that occasion declined to exercise his discretion. The respondent observed that under his guidelines a reassessment would only be made in circumstances where additional information is provided, which, when combined with previously known information, would bring the case within his guidelines. The respondent said:

‘This case has been reassessed in the light of your recent letter. It still does not fall within my Guidelines and has not been referred to me.’

6 The applicant, by her next friend, has today confirmed that she is seeking review by this Court of the decision of the Minister not to exercise, or not to consider the exercise, of his discretion under s 417.

7 The application sets out two grounds of review. First, the applicant claims that the Minister failed to take into account relevant considerations in making the decision of the 12 August 2003 and, as a result, the applicant had been denied procedural fairness. Secondly, the applicant claims that the decision effectively ‘breaks up the family’ of the applicant.

8 In a separate document headed ‘Submission’ the applicant has set out what appears to be pars 4.2.8 and 4.2.10 of the Minister’s guidelines for the exercise of the Ministerial discretion under s 417. I need not reproduce them here. The paragraphs identify Australian family ties, length of time in Australia and level of integration in the Australian community as relevant considerations. In the same document the applicant requests that her case ‘be considered not only under the Migration Law Act but under the Minister of Immigration Guidelines as well’.

9 The respondent has filed a notice of objection to competency. The grounds stated are as follows:

‘1. The Court does not have jurisdiction to review the decision made by [the Minister] on 12 August 2003 as subsection 476(2) of the Act provides that the Court does not have jurisdiction to review a decision of he Minister made under section 417 of the Act not to exercise, or not to consider the exercise, of the Minister’s power.
2. The applicant has not identified any other decision that is sought to be reviewed.’

10 Section 417 of the Act relevantly provides:

‘(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision the Tribunal under section 415 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.
...
(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.’

11 Section 476(2) provides

‘Despite any other law ... the Federal Court and the Federal Magistrates Court do not have any jurisdiction in respect of a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under [section] ... 417....’

12 The Full Federal Court (Sackville, Allsop and Jacobson JJ) in Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs has made it plain that this Court does not have jurisdiction in respect of a decision of the Minister not to consider exercising his power under s 417 of the Act: see also NADU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 4 at [9] and [11] per Branson J.

13 At [8] of NAGM the Full Court said:

‘In our opinion, the primary Judge was clearly correct to hold that s 476(2) of the Migration Act deprived this Court of jurisdiction to hear and determine a challenge to the Minister’s refusal to consider the exercise of his powers under ss 48B and 417. This conclusion follows inexorably from the clear language of s 476(2) itself. The appellants advanced no cogent ground for challenging the constitutional validity of s 476(2) of the Migration Act. The Federal Court is a creature of statute and Parliament may determine the extent of its jurisdiction: see, generally, Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510.’

14 There is a further barrier in the way of the applicant. Section 417(7) of the Act clearly states that s 417(1) creates only a power and no duty so far as the Minister is concerned. In NAGM the Full Court observed:

‘In any event, the appellants’ claim for relief would be defeated by ss 48B(6) and 417(7) of the Migration Act. Each provides that the Minister does not have a duty to consider the exercise of the relevant power in respect of a non-citizen. As Hely J said in Kolotau v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1145, at [8]:
"[r]elief cannot be available under s 39B of the [Judiciary Act 1903 (Cth)] by reason of the Minister’s failure to consider a matter which the Migration Act specifically says that he is not obliged to consider".’

See also NADU and SZAAM v Minister for Immigration &822 Multicultural & Indigenous Affairs [2003] FCA 917 at [3] per Emmett J.

15 It is not for this Court to assess the merits of the applicant’s contention that she falls within the Ministerial guidelines for the exercise of the Minister’s discretion. This Court does not have jurisdiction to review the Minister’s failure to exercise, or consider the exercise of, his discretion under s 417.

16 For the above reasons I uphold the objection to competency and strike out the application.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 3 February 2004

Counsel for the Applicant:	The applicant’s next friend appeared in person
Counsel for the Respondent:	R A Pepper
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	2 February 2004
Date of Judgment:	2 February 2004