Avneesh v Minister for Immigration and Multicultural Affairs

[2006] FCA 1793

FEDERAL COURT OF AUSTRALIA

Avneesh v Minister for Immigration and Multicultural Affairs [2006] FCA 1793

AVNEESH AVNEESH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2289 OF 2006

MOORE  J
20 DECEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2289 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

AVNEESH AVNEESH
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE  J
DATE OF ORDER:	20 DECEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2289 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

AVNEESH AVNEESH
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE  J
DATE:	20 DECEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of the Federal Magistrate of 30 October 2006 dismissing an application for judicial review of a decision of the Migration Review Tribunal of 26 June 2006: see Avneesh v Minister for Immigration [2006] FMCA 1681. The Tribunal found it had no jurisdiction to make a decision on the application before it as there was no reviewable decision under s 338 of the Migration Act 1958 (Cth). The Federal Magistrate agreed with the Tribunal's conclusion that there was no reviewable decision enlivening its jurisdiction and dismissed the application for judicial review. His Honour found that at the time the appellant sought to invoke the jurisdiction of the Tribunal there was no extant visa that had been cancelled.

2. The ground pursued in this appeal is that the Tribunal did not invite the appellant to appear at a hearing as contemplated by s 360 of the Act.  The appellant conceded at the hearing before the Federal Magistrate that the Tribunal had invited him in writing to comment on its preliminary views that it had no jurisdiction.  The Tribunal received no response to its invitation.

3. Nothing was put this morning that suggests that the Tribunal or the Federal Magistrate erred in concluding that the Tribunal's jurisdiction had not been enlivened.  Section 360 is part of Division 5 of the Act which concerns the conduct of a review.  It appears tolerably clear that the obligation arising under s 360 is an obligation that arises in circumstances where there is a review being conducted by the Tribunal.  There was not in this case.  The complaint now made by the appellant that the Tribunal failed to conduct a hearing and the Federal Magistrate erred in not recognising that as jurisdictional error is an argument without substance.  Accordingly, I dismiss the appeal and order the appellant to pay the respondent’s costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        22 December 2006

The Appellant appeared in person.
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	20 December 2006
Date of Judgment:	20 December 2006