El-Masri v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1685

FEDERAL COURT OF AUSTRALIA

El-Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1685

AHMAD SALAH EL-MASRI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1866 OF 2005

ALLSOP J
24 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1866 of 2005

BETWEEN:	AHMAD SALAH EL-MASRI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	24 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.A writ of certiorari issue quashing the decision of the respondent, made on 13 May 2003, cancelling the applicant’s Transitional (Permanent) visa.

2.The application be otherwise dismissed.

3.The respondent pay the applicant’s costs of the proceedings.

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 1866 of 2005

BETWEEN:	AHMAD SALAH EL-MASRI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	24 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant and the respondent have reached agreement as to the substantive position. The Minister caused the applicant’s visa to be cancelled under s 501 of the Migration Act 1958 without appreciating the fact that the circumstances of the applicant were such as to entitle him to a Transitional (Permanent) visa as an absorbed person visa pursuant to the operation of s 34 of the Migration Act.

2. The parties are agreed that the decision earlier made was vitiated by jurisdictional error on the authority of the Full Court of this Court.  The parties are agreed that a writ of certiorari should issue quashing the decision of the respondent. The applicant sought a declaration that immediately prior to the purported cancellation of the applicant’s Transitional (Permanent) visa, he was also the holder of an absorbed person visa pursuant to the operation of s 34 of the Migration Act 1958 (Cth).

3. Mr Markus on behalf of the respondent did not oppose the making of declaration but thought it unnecessary because that was his client’s unequivocal and uncontested position.  I indicated at the directions hearing that I would not make a declaration by consent without needing to understand the facts in more detail and without being persuaded that an exercise of the Court’s power to make a declaration of rights was appropriate.

4. On reflection Mr Archibald who appears for the applicant obtained instructions that no such hearing for a declaration was necessary. 

5. Lest there be any doubt about it, it has been the stated unequivocal position of the Minister that immediately prior to the purported cancellation of the applicant’s Transitional (Permanent) visa he was also the holder of an absorbed person visa pursuant to the operation of s 34 of the Migration Act 1958 (Cth).

6. Therefore, it would appear to be unnecessary to make a declaration about that matter.

7. Therefor, the orders of the Court will be as follows:

   1.A writ of certiorari issue quashing the decision of the respondent, made on 13 May 2003, cancelling the applicant’s Transitional (Permanent) visa.

   2.The application be otherwise dismissed.

   3.The respondent pay the applicant’s costs of the proceedings.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            24 November 2005

Counsel for the Applicant:	Mr I Archibald
Solicitor for the Applicant:	Michaela Byers
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 November 2005
Date of Judgment:	24 November 2005