FEDERAL COURT OF AUSTRALIA Tuuhoko v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 410 MIGRATION – jurisdiction of Federal Court – constitutional validity of provisions of Migration Act 1958 (Cth) – powers of Minister pursuant to s 351 Migration Act 1958 (Cth) – public interest Migration Act 1958 (Cth), ss 351, 474, 475, 476 NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, followed SIAOSI TUUHOKO and VAOPAKO TUUHOKO and KELEPI TUUHOKO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No N 1061 of 2002 WILCOX, SPENDER, RYAN JJ SYDNEY 5 DECEMBER 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1061 OF 2002 BETWEEN: SIAOSI TUUHOKO FIRST APPELLANT VAOPAKO TUUHOKO SECOND APPELLANT KELEPI TUUHOKO THIRD APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: WILCOX, SPENDER, RYAN JJ DATE OF ORDER: 5 DECEMBER 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The adult appellants pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1061 OF 2002 BETWEEN: SIAOSI TUUHOKO FIRST APPELLANT VAOPAKO TUUHOKO SECOND APPELLANT KELEPI TUUHOKO THIRD APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: WILCOX, SPENDER, RYAN JJ DATE: 5 DECEMBER 2002 PLACE: BRISBANE REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of Justice Emmett of 20 September 2002, where his Honour considered that the objection by the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to competency was well taken and accordingly dismissed the application as incompetent. His Honour noted that the Federal Court can exercise jurisdiction only in such circumstances as are created by statute, in this case by the Migration Act 1958 (Cth) ("the Act), and stated in par 10 of his reasons that: "It is not for the Court to express any view concerning the desirability of legislation such as ss 476 and 351 of the Migration Act. The terms of s 476 are clear and unequivocal …" 2 The notice of appeal from his Honour's judgment on behalf of Mr and Mrs Tuuhoko and their nine year old son lists a number of grounds of appeal, and further matters are canvassed in their written submissions, some of which touch on the constitutional validity of particular provisions of the Act. 3 The Court is bound to reject, in particular, the submission contained in par 7 of the submissions by the Tuuhoko family, namely that: "It is unconstitutional for the Commonwealth to enact legislation in the form of Migration Act as per ss 474 475 and 476 to abolish the rights to have a poor decision checked by an independent umpire according to law." We are bound by the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 to hold that the Act in its limiting provisions is valid. 4 In the course of submissions, attention was drawn to the fact that, while there was an application on behalf of Mr and Mrs Tuuhoko and their son to remain in Australia permanently and a request to the Minister to consider the powers which the Act confers on him pursuant to s 351 of the Act in respect of both Mr and Mrs Tuuhoko, it appears that the Minister considered only the case of Mr Tuuhoko. 5 This appears particularly from the letter sent to Mr Hegarty, who was then acting for the Tuuhoko family, on 11 July 2000 by an officer of the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") as a follow-up to a letter dated 9 November 2000 sent to Mr Hegarty by Senator Kay Patterson on behalf of the Minister. The letter from Senator Patterson commences: "Thank you for your letter of 19 October 2000 to the Minister for Immigration and Multicultural Affairs, the Hon Philip Ruddock MP, on behalf of Mr Siaosi Tuuhoko and his wife requesting that the Minister exercise his public interest power under section 351 of the Migration Act 1958. The Minister has asked me to reply on his behalf. The Minister has also asked me to inform you that whilst section 351 provides the Minister with the power to substitute a decision of the Migration Review Tribunal with a decision more favourable to your client, he is under no obligation to exercise that power. It is currently taking some time to finalise requests such as yours but please be assured that you will be contacted again when examination of Mr and Mrs Tuuhoko's case has been completed." The letter of 11 July 2000 says: "I am writing further to the letter dated 9 November 2000 from Senator Kay Patterson in which you were advised that when an examination of Mr Siaosi Tuuhoko's case was completed, you would be contacted. You requested that the Minister consider exercising a discretion under section 351 of the Migration Act 1958. Under this section of the Act, the Minister may substitute for a decision of the Migration Review Tribunal, a decision which is more favourable to the applicant where he considers it is in the public interest to do so. Mr Tuuhoko's case was referred to the Minister. However, on 20 June 2002 he decided not to consider exercising his power in this case. I now ask that Mr Tuuhoko and his family contact the nearest Regional Office of this Department to discuss their status in Australia. Thank you for bringing this matter to the Minister's attention." 6 It is clear that s 351 is intended to cover cases where the technical application of barriers to an entitlement to remain in Australia should not be permitted to override the public interest in a contrary conclusion. If in fact persons with considerable meritorious grounds for remaining in Australia are unable to have those grounds considered because of a technical bar created by the Act or regulations, and consequently are refused the grant of a visa, Australia is the poorer. 7 It may be that Mrs Tuuhoko's case was thought to be simply a derivative claim, based solely on her husband's application, yet the factual circumstances which the Tribunal comprehensively set out at par 17 of its reasons indicates that her claim is not the usual derivative claim. Moreover, it appears that the Tribunal did not have all the files for Mrs Tuuhoko before it. 8 The information before the Tribunal indicates that there are grounds for thinking that Mrs Tuuhoko has been in Australia for twenty-two years. The couple were married in November 1990 and have remained in Australia since then. Their only child was born in 1993 in Australia and attends school here. Mr Tuuhoko has no family in Tonga, but has a sister and nephew in Australia who have three and five children respectively. Mrs Tuuhoko has two sisters and a brother in Australia as well as her parents who, according to the Tribunal, are being sponsored for a parent visa. Her uncle is in Australia also, as are sixteen children of the above. There were a large number of impressive references which accompanied the application to which Senator Patterson first responded on 9 November 2000. 9 The Tribunal found that for reason of delay the Tuuhoko family was not entitled to the grant of a subclass 806 visa. That is one circumstance which might permit the operation of s 351 of the Act. That section acknowledges that, while there may be a bar pursuant to the Act to an officer granting the visa, it is possible for the Minister to grant in the public interest a decision more favourable to an applicant than the decision of the Tribunal. 10 The position may very well be that when Mrs Tuuhoko's case is looked at by the Minister, there will be the opportunity to exercise the undoubted powers the Minister has in the public interest in a way more favourable to the Tuuhoko family than the decision of the Tribunal. 11 Having said that, and noting that this is not the usual case where a wife's claim is merely a derivative claim, the legal position is plain. Regardless of whether the Minister decides to consider the case or, having considered the case, decides not to exercise the power which he has under s 351 of the Act, the Court has no jurisdiction. 12 None of the grounds of appeal has any merit. The fact that Mrs Tuuhoko's case does not seem to have been considered by the Minister does not bear on the exercise of any power by the Court, but may be relevant to the Minister's important responsibilities and powers under the Act. 13 There is no error demonstrated in respect of the judgment the subject of the appeal. In those circumstances, the appeal must be dismissed with costs, but the matters to which reference has been made seem to be matters which ought to be brought to the personal attention of the Minister. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Spender and Ryan. Associate: Dated: 10 December 2002 The first and second appellants appeared on behalf of the appellants Counsel for the Respondent: Mr T. Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 December 2002 Date of Judgment: 5 December 2002