Buultjens v Robertson

[2009] FCA 1537

FEDERAL COURT OF AUSTRALIA

Buultjens v Robertson [2009] FCA 1537

Migration Act 1958 (Cth) ss 351, 476A
Federal Court of Australia Act 1976 (Cth) s 31A

Beyazkilinc v Manager, Baxter Immigration Reception & Processing Centre (2006) 155 FCR 465 referred to
Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510 referred to

LLEWELLYN FREDRICK BUULTJENS v STUART ROBERTSON

VID 850 of 2009

MARSHALL J
18 DECEMBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 850 of 2009

BETWEEN:	LLEWELLYN FREDRICK BUULTJENS Applicant
AND:	STUART ROBERTSON Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	18 DECEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the respondent’s costs, to be taxed in default of agreement.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 850 of 2009

BETWEEN:	LLEWELLYN FREDRICK BUULTJENS Applicant
AND:	STUART ROBERTSON Respondent

JUDGE:	MARSHALL J
DATE:	18 DECEMBER 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant, Mr Buultjens, has commenced a proceeding in this Court seeking a writ of mandamus to compel the respondent, Mr Robertson, to submit to the Minister for Immigration and Citizenship the applicant’s request for special ministerial intervention under s 351 of the Migration Act 1958 (Cth).

2. The Minister had previously considered and rejected a request by the applicant that he intervene under s 351 of the Act to permit the applicant to remain in Australia.

3. The respondent has objected to the competency of the application. The application, he submits, is not within the jurisdiction of this Court due to the operation of s 476A of the Act. That section limits the Court’s jurisdiction in migration matters to those set out in s 476A(1); see Beyazkilinc v Manager, Baxter Immigration Reception & Processing Centre (2006) 155 FCR 465 at [51]–[52] per Besanko J. See also Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510 at [64] per Lindgren J.

4. As the decision sought to be challenged is not one referred to in s 476A(1) of the Act, the respondent’s objection to the competency of the application is made out. The proceeding is dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) as the Court is satisfied that the applicant has no reasonable prospects of successfully prosecuting the proceeding.

5. The order of the Court is that the application is dismissed with costs, to be taxed in default of agreement.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        18 December 2009

The Applicant appeared in person
Counsel for the Respondent:	Mr N Rogers
Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	18 December 2009
Date of Judgment:	18 December 2009