Gomes v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1360

FEDERAL COURT OF AUSTRALIA

Gomes v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1360

MIGRATION – application for review of decision of Migration Review Tribunal refusing permanent resident visa – no precedential value.

Migration Act 1958 (Cth) ss 474, 478(a)

GABRIAL PATRICK GOMES V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NO. N 150 OF 2002

BEAUMONT J
25 OCTOBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 150 OF 2002

BETWEEN:	GABRIAL PATRICK GOMES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	25 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed, with costs.

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	N 150 OF 2002

BETWEEN:	GABRIAL PATRICK GOMES APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	25 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. By his application filed by the applicant in person dated 28 February 2002, the applicant seeks to challenge the decision of the Migration Review Tribunal (“the Tribunal”) refusing a Permanent Resident Visa.

2. By his notice of objection to competency, the Minister for Immigration and Multicultural Affairs (“the Minister”) objects to the jurisdiction of the Court to try the application on the following grounds.

   “1.The decision sought to be challenged in this Application (‘the Decision’) is a ‘privative clause decision’ as that term is defined in section 474(2) of the Migration Act 1958 (‘the Act’).

   2.The Decision was made on a review under Part 5 of the Act.

   3.Section 478(a) of the Act has the effect that where an application to this honourable Court under s39B of the Judiciary Act is for review of a decision by the Migration Review Tribunal under Part 5 of the Act, the application can only be made by the Minister or the applicant in the review by the Migration Review Tribunal.

   4.The Applicant was not the applicant in the review by the Migration Review Tribunal which resulted in the Decision.

   5.The only basis of this honourable Court’s jurisdiction in respect of privative clause decisions, including the Decision, is s39B of the Judiciary Act.

   6.On these grounds, the Applicant is precluded by s478(a) from making this Application.”

3. The applicant is still unrepresented and in this technical area is unable, naturally, to deal with the objection.  Accordingly, arrangements were made through the Registry for counsel to assist as a “Friend of the Court” and I have received a helpful submission from Mr Reilly dated 8 August 2002, which should be read in conjunction with the Minister’s written submissions dated 26 July 2002 and the supplementary submissions dated 2 August 2002 and further supplementary submissions dated 19 August 2002 and 1 October 2002.

4. Without the benefit of oral argument, and in the absence of any square authority on the point, I do not think I have any alternative than to uphold the notice of objection to competency.  I would emphasise, however, that my decision should be treated as having no precedential value whatever, given, as it is, in the absence of proper argument. 

5. Accordingly, the application is dismissed with costs.

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

Associate:

Dated:             7 November 2002

Counsel for the Applicant:	Mr T Reilly as a Friend of the Court
Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	25 October 2002
Date of Judgment:	25 October 2002