Koro v Minister for Home Affairs

[2018] FCCA 3106

FEDERAL CIRCUIT COURT OF AUSTRALIA

KORO v MINISTER FOR HOME AFFAIRS [2018] FCCA 3106

Catchwords:
MIGRATION – Summary dismissal of incompetent show cause application seeking judicial review of Ministerial intervention decision and a primary decision.

Legislation:

Migration Act 1958 (Cth), ss.338, 347, 417, 474, 476

Applicant: VILIMAINA TUIVATUROGO KORO

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 2721 of 2018

Judgment of: Judge Driver

Hearing date: 31 October 2018

Delivered at: Sydney

Delivered on: 31 October 2018

REPRESENTATION

The Applicant appeared in person with the assistance of a McKenzie friend.

Solicitors for the Respondent: Ms C Saunders of DLA Piper

INTERLOCUTORY ORDERS

1. The application filed on 25 September 2018 is dismissed as incompetent.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2721 of 2018

VILIMAINA TUIVATUROGO KORO

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. On 31 October 2018, I dismissed with costs a purported show cause application filed on 25 September 2018. I found that the application was incompetent for lack of jurisdiction. The application sought judicial review of two decisions, a decision concerning Ministerial intervention under s.417 of the Migration Act 1958 (Cth) (Migration Act) and a decision of a delegate of the Minister (delegate) made in 2016 on a partner visa application. The following are the reasons for the orders I made.

Ministerial Intervention decision

1. Section 476(2)(d) of the Migration Act provides that this Court has no jurisdiction in relation to a privative clause decision or purported privative clause decision mentioned in s.474(7).

2. Pursuant to s.474(7)(a) of the Migration Act, a decision of the Minister not to exercise, or not to consider the exercise, of his power under (relevantly) s.417, is such a privative clause decision.

3. The Ministerial intervention decision is therefore a privative clause decision specified pursuant to s.474(7)(a) of the Migration Act, and accordingly, this Court does not have jurisdiction to review the Ministerial intervention decision pursuant to s.476(2)(d) of the Migration Act.

Partner decision

1. Section 476(2)(a) of the Migration Act provides that this Court has no jurisdiction in relation to a "primary decision". Further, s.476(4)(a) of the Migration Act defines a "primary decision" as a privative clause decision or purported privative clause decision that, among other things, is reviewable under Part 5 of the Migration Act.

2. A decision is a Part 5-reviewable decision pursuant to s.338(2) if, amongst other things, the visa could be granted while the applicant was in the migration zone, the applicant made the application for the visa while in the migration zone, and the decision was not made while the applicant was in immigration clearance or had been refused immigration clearance and had not subsequently been immigration cleared.[1]

   [1] There is no dispute that s.338(2)(d) does not apply as the criterion for the grant of a subclass BS or a subclass UK visa does not require the applicant to be sponsored by an approved sponsor.

3. Pursuant to items 1124B(3)(b) and 1214C(3)(b) of Schedule 1 to the Migration Regulations 1994 (Cth) (Regulations), a valid application for a subclass BS or a subclass UK visa can only be made if the applicant is in the migration zone, but not in immigration clearance. Further, for a subclass BS or a subclass UK visa, the applicant must be in Australia but not be in immigration clearance when the visa is granted pursuant to clauses 820.411 and 801.411 to Schedule 2 of the Regulations respectively. Therefore, as Ms Koro was in the migration zone at the time of the partner decision,[2] the partner decision was a Part 5-reviewable decision.

   [2] Affidavit of Jessica Ruth Noakesmith made on 29 October 2018.

4. As the partner decision was a Part 5- reviewable decision, Ms Koro was able to apply to the Administrative Appeals Tribunal for review of this decision pursuant to s.347 of the Migration Act. The Minister submits for completeness that Ms Koro was notified of such rights in the notification letter of the partner decision which was dated 1 March 2016. Ms Koro disputes that notification but that is a matter that could have been raised on review before the Tribunal.

5. Accordingly, the partner decision was a "primary decision" as defined under s.476(4)(a) of the Migration Act and therefore, this Court does not have jurisdiction to review the partner decision pursuant to s.476(2)(a) of the Migration Act.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 31 October 2018