Fahmi v Minister for Immigration and Multicultural Affairs

[2001] FCA 218

FEDERAL COURT OF AUSTRALIA

Fahmi v Minister for Immigration & Multicultural Affairs [2001] FCA 218

MIGRATION – application for review – no judicially reviewable decision disclosed

Migration Act 1958 (Cth): s 475(1), s 475(2)(c)

ABDELLAH FAHMI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 126 of 2001

GOLDBERG J
7 MARCH 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 126 of 2001

BETWEEN:	ABEDELLAH FAHMI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	7 MARCH 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        That the application filed by the applicant on 13 February 2001 be dismissed.

2.The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 126 of 2001

BETWEEN:	ABEDELLAH FAHMI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	7 MARCH 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 13 February 2001 the applicant, Abedllah Fahmi, filed an application in the Court for an order of review.  The application was in a pro forma form and although there was printed the words, “Application to review the decision of the Refugee Review Tribunal/Immigration Review Tribunal that …”, no decision was specified.  The application stated:

   “The applicant is aggrieved by the decision because - I’m married with Australian for nearly 3 years I had a daughter from her.  She canceled [sic] my visa.  When I asked the DIMA for application to have a perminent [sic] visa as a Father they said you have no wright [sic] except if you want to be a refugee to have protection visa. 

   The grounds of the application are - Because I’m married nearly 3 years and I have my daughter here it’s my duty to look after her and be near her as any Father. 

   The applicant claims - I want a bridging visa to go out fron [sic] detention center to sort out my problem.”

2. The application was filed by the applicant himself and not by any solicitor.  The applicant is presently held in immigration detention.  The Minister for Immigration and Multicultural Affairs (“the Minister”) filed an appearance on 16 February 2001. 

3. On 20 February 2001 the Minister filed a notice of objection to competency on the grounds that:

   “1.the application does not refer to any decision reviewable by this Court as set out in section 475 of the Migration Act 1958.

   2.with respect to the applicant, no decision reviewable by this Court as set out in section 475 exists.”

4. A directions hearing was held on 22 February 2001.  In the course of that hearing I arranged for the material filed by the Minister in support of the objection to competency to be read and explained to the applicant through an interpreter.  I ordered that the objection to competency be heard and determined on 7 March 2001.

5. The application for an order of review does not identify any judicially reviewable decision of the Migration Review Tribunal or the Refugee Review Tribunal or any other decision under the Migration Act 1958 (Cth) (“the Act”), or the Migration Regulations, within s 475(1) of the Act, which the applicant seeks to have reviewed.

6. For that reason, the objection to competency should be upheld and the application dismissed. However, as the applicant appears in person and is unrepresented, I have endeavoured to determine whether there may be some decision of the Migration Review Tribunal or the Refugee Review Tribunal or a decision made under the Act or the Migration Regulations which might be the subject of an application for review by the Court, so that the application could be amended to raise that decision for review. I have been assisted in that task by an affidavit sworn by the Minister’s solicitor which sets out the history of the applicant so far as is relevant to this proceeding.

7. The applicant was born in 1972 and is a citizen of Morocco.  On 11 or 12 February 1999, he married Ms Bronwyn Jane Smith, an Australian citizen, in Morocco.  On 7 March 1999, the applicant lodged an application for a spouse visa, together with Ms Smith’s sponsorship form, with the Australian Embassy in Cairo.  On 27 November 1999, the Embassy in Cairo advised the applicant that he had been granted a spouse provisional (temporary) visa subclass 309.  The Embassy also informed the applicant that his temporary visa would remain valid until a decision was made in respect of his application for permanent spouse visa.

8. The applicant arrived in Australia on 14 January 2000.  Thereafter the relationship between the applicant and his wife broke down and they separated.  On 6 December 2000, the Department of Immigration and Multicultural Affairs (“the Department”) notified the applicant that his application for a permanent spouse visa subclass 100 had been refused and that, consequently, his temporary spouse visa would cease on 13 December 2000.  The Department also informed the applicant that he had been granted a bridging visa which would remain in effect until 10 January 2001.

9. On 6 December 2000, the Department sent a copy of its decision to the applicant.  The Department cancelled the applicant’s temporary spouse visa with effect from 30 December 2000.  The applicant’s bridging visa expired on 10 January 2001 and the applicant thereupon became an unlawful non‑citizen.  On 2 February 2001, the applicant was detained by the Department and on that occasion the applicant informed the Department that he had a daughter born ten weeks ago, but he did not know her name.  He was transferred to the Immigration Detention Centre at Maidstone.

10. On 6 February 2001, the applicant, through a representative, lodged with the Department an application for a protection visa.  On 7 February 2001, the Department informed the applicant that his automatic application for a bridging visa E in connection with his protection visa application had been refused.  On 8 February 2001, the applicant withdrew his application for a protection visa as he said he was not a refugee but, rather, wanted to stay in Australia because of his recently born daughter.

11. The narrative I have just undertaken discloses that there are three relevant decisions which could be the subject of review.  Firstly, there is the Minister’s refusal to grant the applicant’s application for permanent spouse visa, which decision was sent to the applicant on 6 December 2000.  Secondly, there is the Minister’s decision on the same day to cancel the applicant’s temporary spouse visa as a result of the determination of the permanent spouse visa application.  Thirdly, there is the Minister’s refusal on 7 February 2001 to grant the applicant’s bridging visa E application.

12. Each of those decisions was reviewable by the Migration Review Tribunal pursuant to s 338 of the Act and is characterised by that provision as “an MRT‑reviewable decision”. The fact that each of those decisions may have been reviewable by the Migration Review Tribunal is of no assistance to the applicant in this Court on his application to this Court. The obstacle for the applicant for review by this Court is found in s 475 of the Act. Section 475(2) of the Act provides:

    “The following decisions are not judicially-reviewable decisions

    …

    (c)       an MRT‑reviewable decision”.

    The only decisions which can be reviewed by this Court pursuant to Pt VIII of the Act are judicially reviewable decisions which are specified in s 475(1) of the Act as decisions of the Migration Review Tribunal, decisions of the Refugee Review Tribunal, and other decisions made under the Act, or the Migration Regulations, relating to visas.

13. The detailed analysis that I have undertaken of the history of the applicant in relation to his presence in Australia and his various attempts to obtain permanent residence in Australia demonstrates that this Court, at this time, has no jurisdiction to entertain the claim by the applicant in his application either to stay in Australia or to obtain a bridging visa to go out from detention. It is not for this Court to grant such a visa or to make an order releasing the applicant from detention. This Court only has the jurisdiction under Pt VIII of the Act to which I have already referred.

14. I am therefore satisfied that the application brought by the applicant to this Court is not an application which the Court has jurisdiction to determine.  Further, the application discloses no reasonable basis for the application.  The order of the Court will be that the application be dismissed. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:            8 March 2001

Counsel for the Applicant:	the applicant appeared in person
Counsel for the Respondent:	Ms E Lee
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 March 2001
Date of Judgment:	7 March 2001