SZBJP v Minister for Immigration and Citizenship

[2007] FCA 379

FEDERAL COURT OF AUSTRALIA

SZBJP v Minister for Immigration and Citizenship [2007] FCA 379

SZBJP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 2305 OF 2006

MOORE J
16 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2305 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBJP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	16 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent's costs fixed in the sum of $1000.

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 2305 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBJP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	16 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against a judgment of a Federal Magistrate of 13 November 2006: see SZBJP v Minister for Immigration & Anor [2006] FMCA 1715. The Federal Magistrate summarily dismissed an application for judicial review of a decision of the Migration Review Tribunal ("MRT") of 3 August 2006. The MRT had found that it had no jurisdiction to review a decision of a delegate of the first respondent to grant a Bridging E (Class WE) visa with Condition 8101 (no work) because it was not an MRT-reviewable decision within the meaning of ss 338 and 347 of the Migration Act 1958 (Cth). The Federal Magistrate found that the MRT did not have the jurisdiction to review either the grant of the visa or the imposition of mandatory condition 8101 as they were not MRT-reviewable decisions. Her Honour dismissed the application for an order to show cause on the basis that it had no reasonable prospects of success and disclosed no arguable case, pursuant to rules 44.11 and 44.12 of the Federal Magistrates Court Rules 2001.   

2. In my opinion the Federal Magistrate was correct in concluding that the delegate's decision was not a MRT reviewable decision and accordingly that the MRT had been correct in concluding that the applicant was seeking the review of a decision that the MRT had no jurisdiction to review.  The applicant has failed to identify any error in the Federal Magistrate's approach and findings and none is apparent.

3. It should be noted, however, that the MRT apparently misunderstood at least one matter of detail sought to be raised by the applicant in the application to the MRT and that error is repeated in the reasons of the Federal Magistrate.  What the applicant was complaining about was the imposition of condition 8101 by determination made on 16 June 2006 and not, as the MRT indicated, by decision of 20 January 2006.  However, that minor factual error is immaterial to the conclusion of the Federal Magistrate.  For the reasons just given the application for leave to appeal should be dismissed.  I so order. I also order that the applicant pay the first respondent’s costs and I fix those costs in the sum of $1,000.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        20 March 2007

The Applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	27 February 2007 and 16 March 2007
Date of Judgment:	16 March 2007