Mansour, Anthony v Minister for Immigration & Ethnic Affairs

[1995] FCA 964

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                )  No G 107 of 1995
  )     
GENERAL DIVISION  )     

BETWEEN:          ANTHONY MANSOUR  Applicant

AND:                   MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

First Respondent

AI LI XIAO

Second Respondent

Coram:        Davies J.
Date:          14 November 1995
Place:         Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:-

1.The application be dismissed. 

2.The applicant pay the respondents' costs of the proceedings.

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                )  No G 107 of 1995
  )     
GENERAL DIVISION  )     

BETWEEN:          ANTHONY MANSOUR  

Applicant

AND:                   MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

First Respondent

AI LI XIAO

Second Respondent

Coram:        Davies J.
Date:          14 November 1995
Place:         Sydney

REASONS FOR JUDGMENT

This is a motion seeking dismissal of the proceedings on the basis that it was not competent for the applicant, Mr Anthony Mansour, to have instituted them.  I should note that Mr Mansour did not appear on the hearing of the motion. 

The proceedings were instituted early in 1995 seeking review of a decision of the first respondent, the Minister for Immigration & Ethnic Affairs, to grant permission to the second respondent, who had been the wife of Mr Mansour, to remain permanently in Australia.

The jurisdiction of the Court that was invoked was the jurisdiction under the Migration Act 1958 (Cth) and s.39B of the Judiciary Act 1903 (Cth).

The provisions of the Migration Act, under which the application for a visa was lodged by the second respondent, were amended by the Migration Reform Act 1992 which came into force on 1 September 1994. By the time the decision granting the permanent entry visa and resident return visa had been made on 20 January 1995, the provisions under the Migration Reform Act had commenced.

It was the intent of the provisions of the Migration Reform Act that when the amendments came into force, the new provisions would apply to decisions made thereafter.  Provision was made for the making of regulations to give effect to applications for visas which had been on foot prior to 1 September 1994.  The Migration Reform (Transitional Provisions) Regulations 1994 were such regulations.

It follows, in my opinion, that when the decision granting the visa was made on 20 January 1995, the provisions of the Migration Act 1958 as amended by the Migration Reform Act 1992 applied to the decision and to proceedings which were brought in relation to that decision.

Section 475 of the Migration Act, as it was amended by the Migration Reform Act, defined "judicially-reviewable decisions" and also "non-judicially reviewable decisions". 

The decision to grant the permanent entry visa and the resident return visa were judicially-reviewable decisions falling under paragraph 475(1)(c) being a decision made under the Migration Act or the regulations relating to visas. Pursuant to ss.479 and 480 of the Migration Act, the parties to the review of such a decision had to be the Minister and the person who was the subject of the decision and those parties alone.

Mr Mansour was not such a party and so was not entitled to bring proceedings under the Migration Act. 

The jurisdiction of the Federal Court under s.39B of the Judiciary Act was excluded by s.485(1) of the Migration Act which provides:-

"In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by sub-section 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903."

It follows that the Court has no jurisdiction under s.39B of the Judiciary Act to review the decision of 20 January 1995 or, for that matter, any other jurisdiction to review that decision on the application of Mr Mansour.

For those reasons, Mr Mansour's application must be dismissed.  I will order that Mr Mansour pay the respondents' costs of the proceedings.

I certify that this and the 2 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:  14 November 1995

Counsel for the 1st respondent:  E.A. Wilkins

Solicitors for the 1st respondent:  Australian Government Solicitor

Counsel for the 2nd respondent:  G.P. Craddock

Solicitors for the 2nd respondent:  David H. Cohen & Co.

Date of hearing:  14 November 1995

Date of judgment:  14 November 1995