Fernando v Minister for Immigration and Citizenship (No 2)

In the case of Fernando v Minister for Immigration and Citizenship (No 2), the applicant sought a review of the Minister’s decision to issue a notice of intention to cancel his visa under section 501 of the Act. The respondent argued that the Court lacked jurisdiction to review the decision due to the privative clause in the Act, which restricts the Court's ability to review certain administrative decisions. The Court had to determine whether the decision to issue the notice of intention to cancel the visa qualified as a privative clause decision and whether the Court had jurisdiction to review it.

The primary legal issue was whether the Court had jurisdiction to review the decision to issue the notice of intention to cancel the visa. The Court had to consider whether the decision fell within the scope of a privative clause decision under section 5 of the Act. The Court also needed to determine whether the decision was made personally by the Minister or by a delegate, as this distinction affects the Court's jurisdiction under section 476A. In this case, the decision to issue the notice was made by a departmental officer, not the Minister personally.

The Court found that the decision to issue the notice of intention to cancel the visa was a privative clause decision within the meaning of section 5 of the Act, as it involved conduct described in section 474(3)(g) and (h). The Court also concluded that the decision was made by a departmental officer and not by the Minister personally. Given that the Court only has jurisdiction to review privative clause decisions made personally by the Minister under section 501, it held that it lacked jurisdiction to review the decision. Therefore, the Court dismissed the applicant's application.

ORDERS:
1. The applicant’s application filed on 12 June 2007 is dismissed.