Abualbasal v Minister for Immigration & Anor

[2007] FMCA 1316

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABUALBASAL v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1316

MIGRATION – Minister’s decision not to substitute favourable decision – application for judicial review incompetent – application dismissed at first court date.

Migration Act 1958 (Cth), ss.5E, 351, 474(7), 474(7)(a), 476, 476(2)(d)

Applicant: AMER ABUALBASAL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG2081 of 2007

Judgment of: Smith FM

Hearing date: 31 July 2007

Delivered at: Sydney

Delivered on: 31 July 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Dooley

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed as incompetent under s.476(2)(d) of the Migration Act.

2. The applicant must pay the first respondent’s costs in the sum of $1,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2081 of 2007

AMER ABUALBASAL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. In this matter, the applicant filed an application on 5 July 2007 invoking this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision claimed to have been made by the Minister for Immigration on 7 June 2007.

   
   

   In that decision, which was communicated by letter bearing that date from the branch manager of the Ministerial Intervention Unit, the applicant was informed that the Minister had received an application for the exercise of powers under s.351 of the Migration Act to substitute a more favourable decision following a review by the Migration Review Tribunal, but had “decided not to consider the exercise of power in this case”. 

2. The applicant now seeks “1.  The decision of the Minister to be quashed.  2.  The court to remit this matter”. 

3. However, this Court’s jurisdiction under s.476 is specifically confined by s.476(2)(d) in relation to a privative clause decision or purported privative clause decision mentioned in s.474(7). In that subsection, reference is made in s.474(7)(a) to “a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection ... 351 ...” as a “privative clause decision”. Section 5E defines a “purported privative clause decision” so as to include a purported exercise of that power.

4. It is clear, in my opinion, that the Court’s jurisdiction to review the decision sought to be reviewed by the applicant is expressly excluded by these provisions, whether the Minister’s decision was made within or beyond his powers under s.351 of the Migration Act. I therefore consider that the application is plainly incompetent and should be dismissed today.

5. I note that the applicant was warned in advance of today’s hearing that the Minister would apply to the Court for this order.  The applicant today had no argument to make to justify bringing the application. 

6. I also note that I explored with counsel for the Minister whether the applicant’s application might be amended to encompass the previous decision of the Migration Review Tribunal, which was shown to me. 

   
   

   I accept his submission that such an amendment would be futile. The applicant himself also accepted that he does not seek a review of that Migration Review Tribunal decision by this Court. This is because the Tribunal gave the applicant all the relief which he could expect to obtain from the Tribunal, being the setting aside of the cancellation of a temporary visa. It appears that the applicant really wants a permanent visa, and that this is something which only the Minister can grant in his discretions under s.351 or otherwise.

7. Accordingly, I can see no purpose in allowing the matter to be continued, whether in its current state or amended. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  15 August 2007