Pieterse, Hein v Minister for Immigration and Ethnic Affairs

[1997] FCA 146

IN THE FEDERAL COURT OF AUSTRALIA    )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY    )    No SG 26 of 1995
  )
GENERAL DIVISION  )

BETWEEN:

HEIN PIETERSE and
  TILANE PIETERSE

Applicants

- and -

THE MINISTER FOR
  IMMIGRATION AND
  ETHNIC AFFAIRS

Respondent

EX TEMPORE REASONS FOR DECISION

CORAM:     Mansfield J
PLACE:     Adelaide
DATE: 26 February 1997

In this matter, following the decision which I published on 14 February 1997 on the objection to competency of the application for review of the applicant Hein Pieterse, I have before me an amended notice of objection to competency to that application which invokes also O20 r2 of the Federal Court Rules.  That additional ground asserts that the decisions complained of in the application, so far as judicially reviewable, and in the light of my decision, should be dismissed under that rule on the ground that it discloses no reasonable cause of action.

I anticipated such an application and, in the absence of amendment the dismissal of the application, in my reasons for decision published on 14 February 1997. Mr Pieterse has not, in the light of those reasons, sought to amend the application in any way. Accordingly, for the reasons which I previously published, I find that the application in respect of the decision of 7 April 1995, in so far as it seeks to invoke certain of the grounds of review under s476 of the Migration Act 1958, has no reasonable basis for so doing. I would therefore proceed to dismiss that application to that extent.

The consequence of that decision, together with the decision which I published on 14 February 1997 is that, for a combination of factors, namely that the decisions of 1 and 13 December 1994 complained of are not capable of being judicially reviewed by the Court, and that the decision of 7 April 1995 complained of is in so far as it seeks to invoke the Administrative Decisions (Judicial Review) Act 1977 is also not capable of being judicially reviewed under that Act by the Court and in so far as it seeks to invoke the provisions of the Migration Act should be dismissed under O20 of the Rules, the application cannot be sustained. I order therefore that that application be dismissed with costs.

In relation to Mrs Pieterse's application, I now have before me a notice of objection to competency concerning her application in respect of the same decisions.  In my reasons for decision, published on 14 February 1997, I indicated that the reasons would, subject to any further submission or material, apply equally to the decision of 1 December and 13 December 1994 of which she complains.  No further submission or material has been put before me.  Accordingly, for those reasons I hold that her application seeking to have the court review those decisions is incompetent.

The third decision of which she complains in her application is the decision of 7 April 1995.  In her case, that decision was the subject of an application for review to the Immigration Review Tribunal and that application for review was in fact successful.  The Tribunal granted the visa which she then sought.  Accordingly there is nothing which has been decided adversely to Mrs Pieterse for the Court to review in respect of that decision.  For those reasons her application should also now be dismissed with costs.

My orders are:

1.The application by each of the applicants for review in respect of decisions on 1 and 13 December 1994 and 7 April 1995 is dismissed.

2.The applicants should pay to the respondent the costs of the application to be taxed.

3.That the orders so made should lie in the Registry and not be sealed until 3 March 1997.

I certify that this and the preceding       pages are a true copy of the Ex Tempore Reasons for Decision of the Honourable Justice Mansfield.

Associate:

Dated:

Applicants appear in person

Counsel for the Respondent     :    Mr G Gretsas

Solicitors for the Respondent       :    Australian Government
  Solicitor

Hearing Date  :    26 February 1997