SZBQV& Ors v Minister for Immigration

[2006] FMCA 1894

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBQV & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1894

MIGRATION – Review of decision by Refugee Review Tribunal – whether Court has jurisdiction to review delegate’s decision pursuant to s.476(2) of Migration Act 1958 (Cth).

Migration Act1958 (Cth), ss.476(2); 476(2)(a)
Federal Magistrates Court Rules 2001, rr.44.11; 44.12; sch.1

First Applicant: SZBQV

Second Applicant: SZBRC

Third Applicant: SZBRD

Fourth Applicant: SZBRE

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3495 of 2006

Judgment of: Emmett FM

Hearing date: 13 December 2006

Date of last submission: 13 December 2006

Delivered at: Sydney

Delivered on: 13 December 2006

REPRESENTATION

The Applicants appearing on their own behalf

Solicitors for the Respondent: Ms M. Jolley, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3495 of 2006

SZBQV

First Applicant

SZBRC

Second Applicant

SZBRD

Third Applicant

SZBRE

Fourth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants filed an application on 27 November 2006 in this Court in which the applicants sought judicial review of a decision of a delegate of the first respondent (“the Delegate”) dated 7 November 2002.  Notification of the decision was received by the applicants on
   10 November 2002.

2. The first respondent filed a response on 6 December 2006 identifying the issue, inter alia, that the Court has no jurisdiction to review the Delegate's decision pursuant to s.476(2) of the Migration Act1958 (Cth) (“the Act”). The first respondent sought a show cause hearing pursuant to r.44.11 and r.44.12 of the Federal Magistrates Court Rules 2001.  The first respondent filed its written submissions on 8 December 2006 in support of the contention that the Court has no jurisdiction to entertain the applicants’ application. 

3. The first respondent tendered this morning a letter marked, ‘Exhibit 1R’, from Bernadette Rayment, the legal advisor to the first respondent. The letter addressed to the first named applicant informed him that the matter is listed for directions this morning and that the first respondent would seek an order today that his application be dismissed as incompetent, as outlined in the first respondent’s submissions.  The first named applicant confirmed that, indeed, he has received the response, the first respondent's submissions and that letter.

4. I note that the letter attached the outline of submissions and that the letter was indeed addressed to the first named applicant at the postal address identified by him on his application. 

5. In the circumstances, having regard to the issue raised by the first respondent and the clear terms of s.476(2) of the Act, it is appropriate that the application be dealt with immediately.

6. Section 476(2)(a) of the Act states that this Court has no jurisdiction in relation to a primary decision. A primary decision is defined as “a privative clause decision or a purported privative clause decision that is reviewable under Part…7” of the Act.

7. The decision, the subject of the applicants’ application, is such a decision. In the circumstances, this Court has no jurisdiction to entertain the applicants’ application.  Accordingly, the proceeding before this Court, initiated by the application filed on 27 November 2006, is dismissed. 

RECORDED : NOT TRANSCRIBED

1. The first respondent seeks costs fixed in an amount of $700. I note that Sch.1 of the Federal Magistrates Court Rules 2001 in Pt 2 paragraph (1)(a) provides for costs of $1000, if the proceeding is concluded at or before the first Court date of the proceeding. 

ORDERS DELIVERED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  S. Tsang

Date:  20 December 2006