Mahboob v Minister for Immigration and Ethnic Affairs

In the case of Fuad Bin Mahboob v Minister for Immigration and Ethnic Affairs, the applicant, Fuad Bin Mahboob, sought a review of the decision of the Refugee Review Tribunal that denied his application for refugee status. The central legal issue before the Federal Court of Australia was whether the Court had the jurisdiction to review the decision of the Refugee Review Tribunal given that significant amendments to the Migration Act 1958, including the introduction of a new regime for judicial review, were enacted after the applicant applied for a review by the Tribunal but before the Tribunal made its decision. The applicant argued that he had an accrued right to have his application determined according to the law in force at the time it was made, which would include the right to judicial review under the Administrative Decisions (Judicial Review) Act 1977.

The Court considered whether the new provisions concerning judicially-reviewable decisions, which limited the grounds for review and the powers of the Court, applied to decisions made by the Refugee Review Tribunal before they came into effect. Lehane J noted that while decisions of the Refugee Review Tribunal are reviewable by the Court under the new regime, the applicant's application for review was made after the new provisions for review by the Tribunal had come into effect but before the new judicial review provisions. The Court concluded that the legislative amendments, particularly section 39 of the Migration Reform Act 1992, indicated an intention that the new regime should apply to all decisions, including those made before the new judicial review provisions came into force. Therefore, the Court found that it did not have jurisdiction to review the decision of the Refugee Review Tribunal, and the application was dismissed.

The Court deferred making formal orders to allow the parties to consider the reasons and potentially make further submissions. The issue of costs was also reserved for further argument, with the applicant's counsel submitting that the respondent should pay costs if the Court lacked jurisdiction, a proposition the respondent's counsel indicated he might oppose.