Nouei, Houssein v Minister for Immigration and Multicultural Affairs

[1997] FCA 892

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 527 of 1997

BETWEEN:	HOUSSEIN NOUEI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	20 AUGUST 1997
PLACE:	SYDNEY

EX-TEMPORE REASONS FOR JUDGMENT

This is an application for review by the Court of a decision of the Minister for Immigration and Multicultural Affairs (“the Minister”) declining to exercise the power given to him under s 417 of the Migration Act 1958 (Cth) (“the Act”). That section empowers the Minister, if he thinks it appropriate in the public interest, to substitute another decision for the decision of the Refugee Review Tribunal. However, the section expressly provides in subs (5) that the Minister has no duty to exercise that power, and in the present case, he has declined to exercise the power.

The application before this Court was filed on 7 July 1997 and I am satisfied on the evidence that a copy of the Minister's decision was received by the applicant on 11 June 1997. This Court is, of course, bound by the provisions of the Act and must apply those provisions to matters which come before it for review. In September 1994 amendments came into effect in relation to the Act which greatly restricted the power of the Court to consider applications for review.

Under s 475(2)(e) of the Act a decision by the Minister under s 417 is not a judicially reviewable decision. The effect of s 485 of the Act is to take away the jurisdiction of this Court in respect of judicially reviewable decisions or decisions covered by s 475(2), except for the jurisdiction conferred by Part 8 of the Act.

Another provision of the Act, s 476, provides that an application may be made for review of a judicially reviewable decision on certain grounds. Because the present decision, being a decision under s 417, is not a judicially reviewable decision s 476 does not enable this Court to hear the present review application. Accordingly, because the Court has no jurisdiction in the matter it is not competent for the Court to embark on a consideration of the merits or evidence of the application.

The Full Federal Court in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 at 347 has stated that s 485 of the Act, to which I have just referred, excludes the Court's jurisdiction to embark on judicial review of decisions under s 417 of the Act. Accordingly the Court, being limited by these provisions of the Act, has no jurisdiction to hear this matter.  Therefore the Notice of Objection to Competency has been made out and I propose to grant the application made in the Notice of Motion of 31 July 1997.

Accordingly, the orders of the Court are that the proceedings are dismissed. In the circumstances of this case I do not propose to make any order as to the costs of the application.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             20 August 1997

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 August 1997
Date of Judgment:	20 August 1997