Kolotau & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1145

Kolotau & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1145

The application was bound to fail because s 351(7) of the Migration Act 1958 (Cth) provides that the Minister has no duty to consider exercising the s 351 power, so relief was not available under s 39B of the Judiciary Act 1903 (Cth) for failure to consider that matter. The Court therefore dismissed the application without relying on s 476(2), in light of the s 78B notice. The Court refused to order costs against Mr Fonua because the respondent had consented to him addressing the Court without warning him that personal costs would be sought if the application failed; the applicants were ordered to pay the respondent's costs.

Jurisdiction
Australia
Judgment Date
05 September 2002
Procedural Posture
Migration Judicial Review / Application to Review Decisions of the Minister Dated 25 June 2002; Notice of Objection to Competency; Application for Costs Against Non Party Representative
Outcome
Application dismissed with costs; application for costs against Mr Fonua refused.
Legal Topics
['ministerial Intervention Under S 351 of the Migration Act 1958 (cth)' 'federal Court Jurisdiction' 'section 78 B Notice' 'costs Against a Non Party' 'unpaid Representative or Friend Addressing the Court']
['migration Law' 'administrative Law' 'constitutional Law' 'civil Procedure'] ['ministerial Intervention Under S 351 of the Migration Act 1958 (cth)' 'federal Court Jurisdiction' 'section 78 B Notice' 'costs Against a Non Party' 'unpaid Representative or Friend Addressing the Court']

Case Brief

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Procedural Posture

Migration Judicial Review / Application to Review Decisions of the Minister Dated 25 June 2002; Notice of Objection to Competency; Application for Costs Against Non Party Representative

Legal Issues

  1. 1 ["Whether the Federal Court could grant relief in respect of the Minister's decision not to exercise, or not to consider exercising, power under s 351 of the Migration Act 1958 (Cth)." 'Whether s 351(7) of the Migration Act 1958 (Cth) meant the application was bound to fail because the Minister had no duty to consider exercising the power.' 'Whether the Court should determine the matter by reference to s 476(2) of the Migration Act 1958 (Cth) in the face of a s 78B notice.' 'Whether costs should be ordered personally against Mr Fonua, a friend of the applicants who was permitted to address the Court.']

Ratio Decidendi

The application was bound to fail because s 351(7) of the Migration Act 1958 (Cth) provides that the Minister has no duty to consider exercising the s 351 power, so relief was not available under s 39B of the Judiciary Act 1903 (Cth) for failure to consider that matter. The Court therefore dismissed the application without relying on s 476(2), in light of the s 78B notice. The Court refused to order costs against Mr Fonua because the respondent had consented to him addressing the Court without warning him that personal costs would be sought if the application failed; the applicants were ordered to pay the respondent's costs.

Court Disposition

Application dismissed with costs; application for costs against Mr Fonua refused.

Orders

  • ['The application is dismissed with costs.' 'The application for an order for costs against Mr Fonua is refused.' "The applicants are to pay the respondent's costs."]