FEDERAL COURT OF AUSTRALIA
Martinez v Minister for Immigration & Citizenship (No 2) [2008] FCA 1995
ALEJANDRO TORO MARTINEZ v MINISTER FOR IMMIGRATION & CITIZENSHIP and ANOR
NSD 1791 of 2008
EMMETT J
5 DECEMBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1791 of 2008
BETWEEN: ALEJANDRO TORO MARTINEZ
ApplicantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
EMMETT J
DATE OF ORDER:
5 DECEMBER 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceeding be dismissed as incompetent.
2.The costs of this proceeding be treated as costs in proceeding NSD 1100 of 2008.
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
NSD 1791 of 2008
BETWEEN: ALEJANDRO TORO MARTINEZ
ApplicantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
EMMETT J
DATE:
5 DECEMBER 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This proceeding was commenced by filing an affidavit and draft notice of appeal on 18 November 2008 seeking an extension of time to appeal from a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), affirming a decision of the first respondent, the Minister for Immigration and Citizenship (the Minister), cancelling a visa held by the applicant under the Migration Act 1958 (Cth) (the Act).
The appeal is incompetent since no appeal lies from a decision of the Tribunal under the Act. Although Constitutional writ relief may have been available had the proceeding been commenced in time, the time within which a proceeding had to be commenced has expired. Accordingly, the Court no longer has jurisdiction to deal with an application for a Constitutional writ in this proceeding.
However, in proceeding 1100 of 2008 which was commenced within time, the applicant proposes to continue seeking Constitutional writ relief. In the circumstances, it is appropriate that this proceeding be dismissed as incompetent.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 14 January 2008
The Applicant appeared in person. Counsel for the First Respondent: Ms A Crittenden Solicitor for the First Respondent: Clayton Utz
Date of Hearing: 5 December 2008 Date of Judgment: 5 December 2008
- AGLC
- Martinez v Minister for Immigration and Citizenship (No 2) [2008] FCA 1995
- Case
- [2008] FCA 1995
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Federal Court had jurisdiction to review the Minister's decision to cancel Martinez's visa. The Minister argued that the court lacked jurisdiction due to the absence of a statutory right of appeal under the Migration Act 1958 (Cth). The court had to determine whether the proceeding was competent and whether it had the authority to review the decision.
The court found that the proceeding was incompetent as there was no statutory right of appeal available to Martinez. The court held that the decision of the Minister to cancel the visa was not subject to judicial review under the Judicial Review Act 1990 (Cth) because it did not involve an error of law. The court dismissed the proceeding as incompetent and ordered that the costs of the proceeding be treated as costs in another proceeding. The court emphasised the importance of understanding the jurisdictional limits of the Federal Court in matters concerning immigration decisions.
Orders
Orders of the court
1. The proceeding be dismissed as incompetent.
2. The costs of this proceeding be treated as costs in proceeding NSD 1100 of 2008.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.