Hussain v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 709

FEDERAL COURT OF AUSTRALIA

Hussain v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 709

KHADIM HUSSAIN v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

N 332 of 2002

WHITLAM J
21 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 332 of 2002

BETWEEN:	KHADIM HUSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	21 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent’s 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 332 of 2002
BETWEEN:	KHADIM HUSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE:	21 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding commenced on 22 April 2002 when the applicant filed an application in respect of a decision of the Migration Review Tribunal (“the Tribunal”) given on 27 March 2002.  The Tribunal affirmed a decision of a delegate of the respondent made on 11 March 2002 refusing the applicant a Bridging E (Class WE) visa.

2. The applicant had lodged the application for that bridging visa on 7 March 2002.  The Tribunal had held two hearings on 21 March 2002 and 26 March 2002 in order to take evidence from the applicant, which was done with the assistance of an interpreter in the Urdu language.  Two other persons also gave evidence at the second hearing.

3. The primary criteria for a Bridging E (Class WE) visa are set out in Pt 5 Subclass 050 of Sch 2 to the Migration Regulations 1994. The delegate had found that the applicant failed to satisfy the criterion set out in cl 050.223. Relevantly that clause requires that the Minister or, in this case, his delegate, be satisfied that “if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it”.

4. The Tribunal found in paragraph 60 of its reasons for decision that, given the applicant’s “migration history”, the applicant would not abide by the visa conditions which “would in all likelihood be imposed on the visa sought if it were granted”, and affirmed the delegate's decision. 

5. The decision of the Tribunal is a privative clause decision within the meaning of s 474 of the Migration Act 1958.  It follows that the Court has no jurisdiction conferred upon it to review such a decision.  Further, it is clear from the terms of the application and from the contents of the affidavit read, over objections as to relevance, in support of it that the principles enunciated in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 are not invoked in this case.

6. Accordingly, I am satisfied the Court has no jurisdiction to review the decision and the application is dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            4 June 2002

The applicant appeared in person.

Counsel for the Respondent:	Shiela Kaur-Bains
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	21 May 2002
Date of Judgment:	21 May 2002