Kuwar v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 706

FEDERAL COURT OF AUSTRALIA

Kuwar v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 706

NARAD KUWAR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 86 of 2002

WHITLAM J
21 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 86 of 2002

BETWEEN:	NARAD KUWAR 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 86 of 2002

BETWEEN:	NARAD KUWAR 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 6 February 2002 by the filing of an application for an order review in respect of a decision made by a delegate of the respondent.  The application as filed identified the decision as being made on 12 December 2001, but it was agreed at the bar table that the reference should be to a decision made by the delegate on 31 December 2001.  The application as filed did not state the orders sought, but Mr Diab, for the applicant, explained that he wished to have the decision of the delegate set aside and the matter remitted.

2. The decision in question related to the so-called “points” system applicable in relation to the visa for which the applicant had applied. The delegate’s decision, pursuant to ss 94, 95 and 95A of the Migration Act 1958 (“the Act”), resulted in that visa application being placed in a pool for a period of two years. 

3. The delegate’s decision is a privative clause decision within the meaning of the definition in s 474(2) of the Act. However, Mr Diab asserted that s 474 of the Act does not apply in respect of a decision which manifests what he called “jurisdictional error” as a result of estoppel or error of law. I do not accept that submission.

4. I accept that there may be, in respect of certain decisions, a jurisdiction under s 39B of the Judiciary Act 1903. This is not one of those decisions, and, in any event, no attempt was made to argue s 39B as a source of jurisdiction in the present case. Mr Diab referred to a number of decisions which purported to find a jurisdiction in the Court to deal with decisions that manifested “jurisdictional error” notwithstanding that they were privative clause decisions, but they are not relevant in this case.

5. Since the decision of the delegate is a privative clause decision, the Court has no jurisdiction to grant the relief sought:  NAAXv Minister for Immigration & Multicultural Affairs [2002] FCA 263 and NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281. To the extent that the approach in those cases is not being followed by other members of the Court, I respectfully think that they are wrong and that the approach of Gyles J and Tamberlin J, as applied by other judges of the Court, is correct: see Wang v Minister for Immigration & Multicultural Affairs [2002] FCA 477 by Hill J and in Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 by Heerey J.

6. The application will be 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

Solicitors for the applicant:	Mr Simon Diab of Simon Diab & Associates
Counsel for the respondent:	J D Smith
Solicitors for the respondent:	Sparke Helmore
Date of hearing:	21 May 2002
Date of judgment:	21 May 2002