Gunawan v Minister for Immigration
[2007] FMCA 805
•24 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GUNAWAN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 805 |
| MIGRATION – Migration Review Tribunal – practice and procedure – whether Federal Magistrates Court has jurisdiction to hear – whether is a migration decision under s.5. |
| Commonwealth of Australia Constitution Act para.75(5) Migration Act 1958 (Cth), ss.5; 34; 34(2); 476; 476(1); 476(2) |
| Hary Tjandra aka Jimmy Yek v Minister for Immigration and Ethnic Affairs (No. NG 827 of 1995 FED No. 610/96) |
| Applicant: | HENGKY GUNAWAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG893 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 24 May 2007 |
| Date of last submission: | 24 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2007 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Ms E. Warner-Knight and Ms D. Watson, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG893 of 2007
| HENGKY GUNAWAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex-Tempore
The first respondent has raised the issue of this Court's jurisdiction to entertain the applicant's proceeding commenced by way of application filed on 16 March 2007. That application seeks the following orders and relies upon the following grounds:
Grounds of Application
1. I have been in Australia almost 25 years
2. 25 years is long enough to become an absorbed person
3. Have to take into account I’m as (sic) Human being also Declaration of Human Rights as well.
4. Being Associate with Australian (sic) and made Australia as my home country etc.
Orders sought by Applicant
1. Grant me as an absorbed person under s34
2. Set aside a determination from DIMA that I did not become an absorbed person
3. Ask the respondent to pay the court cost
In support of his application the applicant filed an affidavit sworn 9 March 2007 and annexing a letter from the resident section Parramatta office of the Department of Immigration and Multicultural Affairs (“the Department”). That letter is dated 1 September 2006 and addressed to the applicant at his home address. That letter informs the applicant essentially that he has not satisfied the criteria for an absorbed person's visa as set out in s.34 of the Migration Act 1958 (Cth) (“the Act”). The content of that letter is set out as follows:
Dear Mr Gunawan,
I am writing about your letter of 18 October 2005 requesting a determination by the Department under Section 34 of the Migration Act 1958 in regard to you being an absorbed person.
Having examined this case I have determined that you did not become an absorbed person within the meaning of Section 34 of the Migration Act 1958. Therefore you did not become the holder of an Absorbed Person Visa on 1 September 1994.
In making this determination due regard was had to the following:
- sub section 34(2) of the Act which requires, among other things, that in order to have been granted an absorbed person visa on 1 September 1994, a non-citizen must be in Australia on 2 April 1984; and before that date must cease to be an immigrant.
You arrived in Australia and were granted a temporary entry permit on 30 April 1982 valid until 30 June 1982. You were granted a further temporary entry permit on 13 August 1982 which ceased on 15 August 1982. After 15 August 1982 you were a prohibited immigrant. From the time of your arrival until 2 April 1984, you were either the holder of a temporary entry permit or were a prohibited immigrant. As a result, you have not been deemed to have been ‘absorbed’. Attached is a copy of the determination of your information.
You currently do not, and never have held the status of an Australian permanent resident. It is this Department’s view of sub section 34(2)(b) of the current Migration Act that the common law doctrine on absorption, as in effect immediately prior to 2 April 1984, provides the legal basis for interpreting whether a person ‘ceased to be an immigrant’. In particular the term ‘immigrant’ is taken to be a clear reference to a status only known to this Act at that time and hence used in sub-section 34(2)(b) in that context alone.
As this is a determination rather than a decision there are no rights of review which are applicable in this case.
You should now contact the Compliance Section of this Department to discuss your further stay in Australia.
The first respondent submits that the letter upon which the applicant relies is not a migration decision for the purposes of the jurisdiction of this Court. The first respondent referred the Court to s.476 of the Act, in particular, 476(1), which states that this Court has the same original jurisdiction in relation to migration decisions as the High Court under para.75(5) of the Commonwealth of Australia Constitution Act.
At the heart of the first respondent's submission is a submission that the letter dated 1 September 2006 relied upon by the applicant is not a decision. In support of that submission the first respondent, Ms Watson, referred the Court to Hary Tjandra aka Jimmy Yek v Minister for Immigration and Ethnic Affairs (No. NG 827 of 1995 FED No. 610/96) where Lindgren J stated the following at paragraph 10:
Clearly, sub-s 34 (2) provides for a deemed granting of an absorbed person visa on 1 September 1994 if the specified conditions of its operation are satisfied. No decision is contemplated or required (emphasis added).
In accordance with that authority the letter dated 1 September 2006 is not a decision under the Act.
“Migration decision” is defined in s.5 of the Act as (emphasis added):
“a) a privative clause decision;
b) a purported privative clause decision; or
c) a non-privative clause decision.”
In circumstances where there has been no relevant decision made under the Act in respect of which this Court can conduct judicial review then this Court has no jurisdiction.
The only source of the Court's jurisdiction in respect of migration decisions is as set out in s.476 of the Act.
As stated above, the letter upon which the applicant relies is not such a decision. Accordingly, I am satisfied this Court has no jurisdiction to entertain the applicant's application. The proceeding commenced by way of application filed on 16 March 2007 is dismissed.
ORDERS DELIVERED
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 29 May 2007
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