FEDERAL COURT OF AUSTRALIA QAAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 309 MIGRATION – Protection (Class XA) visa – request to the Minister to exercise power under s 48B(1) of the Migration Act 1958 (Cth) to allow a further application for a protection visa – Minister's Guidelines – determination by the Minister in advance – effect of s 476(2) of the Migration Act 1958 (Cth) is to preclude Court from reviewing decision in question – no prospects of success Migration Act 1958 (Cth) ss 48A, 48B, 417, 476 Federal Court Rules O 52 r 15 Bedlington v Chong (1998) 87 FCR 75 applied NAJT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 966 referred to NAJT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 420 referred to QAAB OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No QUD 104 of 2004 SPENDER, KIEFEL, EMMETT JJ BRISBANE 16 NOVEMBER 2004 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 104 OF 2004 ON AN APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: QAAB OF 2004 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: SPENDER, KIEFEL, EMMETT JJ DATE OF ORDER: 16 NOVEMBER 2004 WHERE MADE: BRISBANE THE COURT ORDERS THAT: (1) The application for an extension of time within which to appeal is refused; (2) The applicant pay the costs of and incidental to that application, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 104 OF 2004 ON AN APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: QAAB OF 2004 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: SPENDER, KIEFEL, EMMETT JJ DATE: 16 NOVEMBER 2004 PLACE: BRISBANE REASONS FOR JUDGMENT THE COURT: 1 This is an application filed on 22 June 2004 for an extension of time in which to file and serve a notice of appeal from the judgment of Cooper J given on 24 May 2004 in Brisbane. An extension of time is required because a notice of appeal was not filed and served within the time limited by O 52 r 15 of the Federal Court Rules. The applicant says that the filing out of time was because of a belief that he had twenty-eight days from the pronouncement of judgment within which to appeal. There is no prejudice to the respondent arising out of the short delay, and if there were any prospects of a successful appeal we would grant the extension of time sought in the application filed 22 June 2004. 2 The applicant is an Indonesian citizen. He was born in Irian Jaya. He left there in 1984 and thereafter resided in Papua New Guinea, PNG, a country in which the Refugee Review Tribunal concluded he had a right of residence. Papua New Guinea is where his wife and children reside. 3 The applicant arrived in Australia on 1 October 2000 on a short term visitor's visa. On 8 October 2001, about eleven months after his visitor's visa expired, he applied for a Protection (Class XA) visa. That application was refused on 15 March 2002. On 11 February 2003 the Refugee Review Tribunal affirmed the decision to refuse the grant of a Protection (Class XA) visa to him. The Refugee Review Tribunal, in giving its decision, said: '… the Tribunal finds that the Applicant is a refugee in regard to Indonesia but he has a current legal right to re-enter and reside in PNG, and he can practically implement that right. It also finds that he does not face a real chance of persecution in PNG and that he is not at risk of being refouled to Indonesia. … In all the circumstances, the Tribunal is satisfied that the Applicant is not a person to whom Australia has protection obligations and concludes that he does not meet the criterion for the purposes of the grant of a protection visa.' 4 The applicant before this Court has repeated his claim that the decision of the Refugee Review Tribunal was wrong and is based on a misunderstanding. It is clear that there is an imperfect understanding of the appeal process in the Federal Court, of the actual decision made by Cooper J in the applicant's application, and what is necessary for a successful appeal from that judgment. The applicant has referred to many factual matters, none of which address the question of whether there is any error demonstrated in the judgment of Cooper J. In the course of his oral submissions the applicant did make the claim that his application was not refused by the Minister but by an employee. 5 The background to the present appeal or application for appeal arises because of the effect of s 48A of the Migration Act 1958 (Cth) ('the Act'). Section 48A(1) of the Act provides that: '(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); … may not make a further application for a protection visa while in the migration zone.' 6 As the introductory words of s 48A(1) suggest, the prohibition on making a further application is subject to a discretionary exception, provided for in s 48B of the Act. Subsections 48B(1), (2), and (6) relevantly provide: '(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. (2) The power under subsection (1) may only be exercised by the Minister personally. … (6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.' 7 Subsection 476(2) of the Act provides: '(2) Despite any other law (including section 483A, sections 39B and 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 and section 39 of the Federal Magistrates Act 1999), 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 subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 345, 351, 391, 417 or 454 or subsection 503A(3).' 8 After the Refugee Review Tribunal had affirmed the decision to refuse the grant of a Protection (Class XA) visa to the applicant, he was not able to apply for a further protection visa unless he received a favourable response to his application under s 48B of the Act. 9 On 19 December 2003 the applicant wrote a letter to the Minister which included the following: 'I write to seek the exercise of your discretion under S 48B in my case. I submit that my situation is an appropriate case for the exercise of Ministerial discretion, however, you decide not to exercise your discretion in my case. I request that you allow me to lodge a second protection visa application under Section 48B of the Migration Act 1958 on the basis that there is new information that proves I will be subject to persecution if I am returned to Papua New Guinea. Please see statement enclosed. This evidence was not available neither to the RRT at the time of decision resulting in the member's finding that such an event was unlikely nor to you when I applied for your intervention in my case.' 10 The last sentence refers to an application brought pursuant to s 417 of the Act. 11 On 30 January 2004 an officer of the Department of the Minister wrote to the applicant. The letter included the following: 'Thank you for your letter of 19 December 2003 requesting that the Minister consider exercising her ministerial discretion under section 48B of the Migration Act 1958. Under this section of the Migration Act, the Minister may allow a person to make a further application for a Protection Visa if she considers it is in the public interest to do so. Your request for the exercise of the Minister's power under section 48B of the Migration Act was assessed against the Minister's Guidelines for Purported Further Applications for a Protection Visa subject to S48B and Requests for Ministerial Intervention under S48B. However, your case did not meet these Guidelines, and will not be referred to the Minister for consideration under s.48B.' 12 Cooper J in his judgment delivered on 24 May 2004 said that the applicant's application for the exercise of the Minister's discretion under s 48B was dealt with in accordance with guidelines which had been promulgated for the benefit of the Minister. Importantly, Cooper J found: 'The decision communicated to the applicant in the letter of 30 January 2004, is the decision of the respondent and it is a decision not to exercise the respondent's power under s 48B of the Migration Act:…' 13 Cooper J referred to Bedlington v Chong (1998) 87 FCR 75 ('Bedlington v Chong'), a judgment of the Full Court of the Federal Court, the members of which were the Chief Justice, Kiefel J and Emmett J. The facts were similar to the present in relation to an application under s 48B. The Full Court said at page 80: 'The guidelines constitute the Minister's determination, in advance, of the circumstances in which he would consider exercising the power. By the guidelines, the Minister was, in effect, saying: "Notwithstanding that I have no duty to consider the exercise of the power conferred by section 48B(1), I am prepared to consider exercising that power in the circumstances set out in the Guidelines".' 14 In the circumstances of the present case Cooper J found that the decision was the decision of the Minister, and was a decision not to exercise the respondent's power under s 48B of the Act. 15 The letter of 30 January 2004 communicated a decision made by the Minister in advance. Effectively the Minister was saying, "I decide not to exercise my powers under s 48B in respect of any application where the application does not, in the judgment of my departmental officers, come within the guidelines I have specified." It is, in the circumstances of this case, a determination by the Minister in advance of the circumstances in which she would not consider exercising her powers under s 48B. 16 Cooper J concluded that the effect of s 476(2) of the Migration Act was to preclude this Court from embarking on any review of the decision in question. There was simply no jurisdiction to do so. And his Honour concluded, in the circumstances, 'this Court has no jurisdiction to entertain the application brought by the applicant, and accordingly it must be dismissed.' 17 In our view, the decision by Cooper J that the relevant decision in this case was the decision of the Minister, and was a decision not to exercise her power under s 48B of the Act, was correct, and was consistent with the observations of the Full Court in Bedlington v Chong. Similarly, his Honour's conclusion that the Court had no jurisdiction in such a circumstance to embark on any review of the decision in question is consistent with, and follows, the judgment of the Full Court of the Federal Court in NAJT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 966 at pars 11 to 13 and on appeal [2002] FCAFC 420, at pars 2 and 3. 18 It follows that there is no error in the reasoning and reasons of Cooper J. This Court has no alternative but to dismiss the application for an extension of time. To grant an extension of time would be futile because the appeal would have no prospects of success. The orders of the Court are: (1) the application for an extension of time within which to appeal is refused; (2) the applicant should pay the costs of and incidental to that application, to be taxed if not agreed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Kiefel and Emmett . Associate: Dated: 26 November 2004 The applicant appeared on his own behalf Counsel for the Respondent: Mr S J Lee Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 16 November 2004 Date of Judgment: 16 November 2004