NAWW v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FMCA 783
•2 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAWW v MINISTER FOR IMMIGRATION | [2005] FMCA 783 |
| MIGRATION – Notice of Motion – whether the proceedings should be dismissed on the ground that there is no reasonable cause of action. |
| Migration Act 1958, s.66(4) Administrative Decisions (Judicial Review) Act 1977 |
| NAWW v The Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCA 91 Zubar v The Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 |
| Applicant: | NAWW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1054 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 June 2005 |
| Date of Last Submission: | 2 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2005 |
REPRESENTATION
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Substantive application dismissed.
Applicant to pay the Respondent’s costs assessed in the sum of $1100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1054 of 2003
| NAWW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The matter before me today is an application by the respondent minister made by notice of motion dated 19 May 2005 to dismiss the proceedings on various bases including that no reasonable cause of action is disclosed in relation to the proceedings. The principal application is an unusual one. The applicant filed it on 27 April 2005 and he sought, not a review from this Court of a decision of the Refugee Review Tribunal, but an order or declaration that the decision of the delegate was of no effect. The reason he claimed that the decision of the delegate was of no effect was because the delegate of the minister failed to notify him of it according to law.
One of the reasons why the applicant may not have decided to come to this Court to seek review of the decision of the Refugee Review Tribunal in his case is because on 9 February 2004 Hely J heard such a review and dismissed it: NAWW v The Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCA 91.
The applicant tells me in his affidavit that the delegate of the minister did not notify him in accordance with the requirements of the Act of the decision. The difficulty as with this submission is that under section 66 of the Migration Act, and in particular section 66(4), failure to give notification of a decision does not affect the validity of the decision.
I also have other difficulties with the applicant's claim. Firstly, it seems clear to me from the decision of the Full Bench in Zubar v The Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCA FC248 that the proper place to complain about the delegate's decision is the Tribunal. If that is not the proper place then the proper thing to do is to bring proceedings under the Administrative Decisions (Judicial Review) Act 1977 directly against the delegate. Finally, the applicant's failure to do these things or to raise these matters before Hely J would seem to invoke the principal of Anshun estoppel.
In all the circumstances I am satisfied that the application does not disclose a reasonable cause of action and should be dismissed on that ground. I order that the applicant pay the respondent's costs which I assess in a sum of $1100.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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