Roussev v Minister for Immigration and Multicultural Affairs

[2000] FCA 1661

FEDERAL COURT OF AUSTRALIA

Roussev v Minister for Immigration & Multicultural Affairs [2000] FCA 1661

ORLIN ROUSSEV v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N1103 of 2000

MADGWICK J
SYDNEY
14 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1103 of 2000

BETWEEN:	ORLIN ROUSSEV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK
DATE OF ORDER:	14 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of objection to competency filed by the respondent be upheld.

2.The application filed by the applicant be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1103 of 2000

BETWEEN:	ORLIN ROUSSEV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK
DATE:	14 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter Mr Orlin Roussev, the applicant, was unsuccessful in an application for a protection visa including, ultimately, seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”) before this Court. He thereupon asked the respondent Minister to make a decision more favourable to him than that of the RRT pursuant to s 417 of the Migration Act 1958 (Cth) (“the Act”). By letter of 12 October 2000, the respondent Minister declined this request and the applicant who is and at all material times has been in immigration detention promptly filed an application for an order of review, purportedly pursuant to the Act.

2. However, as the solicitor for the respondent points out, and the applicant accepts, s 475(2) of the Act provides that a decision of the Minister not to exercise, or not to consider the exercise of his or her power under, among others, s 417 of the Act is not a judicially reviewable decision and so this Court has no jurisdiction in relation to this matter.

3. It appears therefore that the notice of objection to competency filed by the respondent must be upheld.  I declare that the Court has no jurisdiction to entertain the applicant’s application to this Court. 

4. The respondent seeks costs. However, the applicant, who appears to be a markedly articulate man, has satisfied me that whatever the merits of his complaints about the Minister's decision, to which I have not gone, he was bona fide seeking to challenge a decision upon his bona fide understanding of the Act. It is not surprising that he would not have observed s 475(2)(e) of the Act and I think that there is no reason to compound his disappointment by ordering him to pay costs.

5. There will be no orders as to costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             17 November 2000

Applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 November 2000
Date of Judgment:	14 November 2000