Attia v Minister for Immigration & Anor

[2007] FMCA 2107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ATTIA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2107

MIGRATION – Visa – spouse visa – Migration Review Tribunal – application for review of decision of the Migration Review Tribunal – injunction.

PRACTICE & PROCEDURE – Jurisdiction – where decision sought to be reviewed was made in the applicant’s favour – application incompetent.

Migration Act 1958, (Cth)

Applicant: AHMED ATTIA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3581 of 2007

Judgment of: Scarlett FM

Hearing date: 17 December 2007

Date of Last Submission: 17 December 2007

Delivered at: Sydney

Delivered on: 17 December 2007

REPRESENTATION

Counsel for the Applicant: Nil

The Applicant: In person

Counsel for the Respondents: Nil

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The Application is not competent.

2. The Application is dismissed.

3. The applicant is to pay the First Respondent’s costs fixed in the sum of $500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3581 of 2007

AHMED ATTIA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant in these proceedings seeks, on the face of his application, review of a decision of the Migration Review Tribunal. What he has told the Court that he actually wants is an injunction directed to the Minister for Immigration & Citizenship restraining the Minister, or the Minister's department, from taking any action to process his visa until the documents which he has sought in respect of a freedom of information application are made available to him. He also seeks an order, in very wide terms, that a perversion of justice should be investigated.

2. The Minister opposes the application and seeks to have the application dismissed on a summary basis. The basis of the Minister's application is that the proceedings before the Court are futile and the Court has no jurisdiction.

3. Briefly, the background to this matter is that the applicant, a citizen of Egypt, applied for permanent residence on spouse grounds on 30 December 2001. A delegate of the minister refused that application on 7 July 2002. The applicant then sought a review of that decision from the Migration Review Tribunal. The Tribunal considered the application and made a decision on 19 April 2006. The application to the Tribunal was in fact successful, which forms one of the bases for the Minister's request today that the Court should make an order for summary dismissal of the application before the Court. The Tribunal made the following decision:

   The Tribunal remits the application made by the visa applicant for a Partner (Migrant) (Class BC) Visa to the Department of Immigration & Multicultural & Indigenous Affair for reconsideration, with the direction that the visa applicant is to be taken to have met the following criteria for a Subclass 100 (Spouse) Visa, subclause 100.221(4) of schedule 2, apart from the criterion that the visa applicant holds a subclass 309 visa. 

4. At the moment, as I understand it, as a result of the Tribunal decision, the applicant's case is under consideration by the Department of Immigration & Citizenship. The applicant has made an application under the Freedom of Information Act for access to certain material. He seeks an injunction that no decision is made by the minister until he, the applicant, has received the information which he seeks. That, of course, is somewhat different from an application to review the decision of the Migration Review Tribunal. Quite clearly, the applicant does not want the decision of the Migration Review Tribunal reviewed. The applicant was successful in the proceedings before the Tribunal and the Tribunal did what the applicant, in his application for review to that Tribunal, requested, which was to find in his favour and send the matter back to the department, which is where it remains.

5. The applicant is not legally represented, although he did obtain some advice from a solicitor who acted as amicus curiae, although the applicant was dissatisfied, apparently, with the advice that he received and he sought to represent himself. 

6. What I am left with is a substantive application for an injunction against the Minister for Immigration & Citizenship, prohibiting the minister from making a decision in respect of the applicant's application for a visa until the applicant receives information under the Freedom of Information Act. The Court does not have power to grant an injunction on that basis. There is no head of power under the Migration Act to allow this Court to make the orders that the applicant seeks. The orders which the applicant seeks are outside the jurisdiction of the Court. Accordingly, I have no alternative but to find that the application is not competent and to dismiss the application.

7. There is an application for costs. The scale for such an application is $1000. However, only $500 is being sought and I consider that appropriate in the circumstances.

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

Associate:  A.Coutman

Date:  19 December 2007