Coj18 v Minister for Home Affairs

[2018] FCCA 1563

FEDERAL CIRCUIT COURT OF AUSTRALIA

COJ18 v MINISTER FOR HOME AFFAIRS [2018] FCCA 1563

Catchwords:
MIGRATION – Review of decision of a delegate of the Minister – refusal of a protection visa – judicial review application incompetent – no jurisdiction to review “primary decisions”.

Legislation:
Migration Act 1958 (Cth), s.476

Applicant: COJ18

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 1381 of 2018

Judgment of: Judge Driver

Hearing date: 14 June 2018

Delivered at: Sydney

Delivered on: 14 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms S Sangha of Mills Oakley

INTERLOCUTORY ORDERS

1. The Court notes that the application lodged on 17 May 2018 seeks judicial review of a “primary decision” as defined in the Migration Act 1958 (Cth).

2. The Court further notes, pursuant to s.476(2) of the Migration Act 1958 (Cth), that the Court lacks jurisdiction to deal with the application.

3. The application lodged on 17 May 2018 is dismissed as incompetent.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1381 of 2018

COJ18

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. I have before me for first court date directions an application lodged on 17 May 2018, seeking judicial review of a decision of the Minister’s delegate (delegate).  That decision was made on 19 March 2018 to refuse the applicant a protection visa.  The application to this Court is supported by an affidavit filed with it, which annexes the delegate’s decision and correspondence accompanying the decision.

2. The Minister’s Department’s notification letter dated 19 March 2018 informed the applicant of the outcome and also informed him of his entitlement to apply to the Administrative Appeals Tribunal for merits review of the decision.  The letter specified that the time for seeking merits review was 28 days from the time the applicant is taken to have been notified of the decision.  It is plain from an examination of that material and the relevant provisions of the Migration Act 1958 (Cth) (Migration Act) that the applicant is seeking judicial review of a primary decision for the purposes of s.476(2) of the Migration Act as defined in s.476(4) of the Migration Act.

3. It is plain that the Court lacks jurisdiction to deal with the matter.  When I pointed this out to the applicant and asked him why he had come to the Court rather than to the Tribunal, he explained that he had run out of time to seek merits review before the Tribunal and hence had applied to the Court.  His purpose would have been better achieved if he had sought merits review in any event and then sought judicial review of the probable decision of the Tribunal that it lacked jurisdiction.  As I explained to the applicant, he has gone about things the wrong way.

4. I find that the Court lacks jurisdiction to deal with the judicial review application. I will note that the application lodged on 17 May 2018 seeks judicial review of a primary decision as defined in the Migration Act. The Court further notes that, pursuant to s.476(2) of the Migration Act, the Court lacks jurisdiction to deal with the application.

5. I will order that the application lodged on 17 May 2018 be dismissed as incompetent.

6. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $800.  The applicant enquired about methods of payment but did not dispute a costs order.

7. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $800.

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

Associate: 

Date:  18 June 2018