SZRNJ v Minister for Immigration

[2013] FCCA 1384

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRNJ v MINISTER FOR IMMIGRATION [2013] FCCA 1384

Catchwords:
MIGRATION – Whether Court has jurisdiction to review a “primary decision” – no jurisdiction.

Legislation:

Migration Act 1958 (Cth), ss.338(2), 474(4), 476(2), 500

Applicant: SZRNJ

Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

File Number: SYG 1981 of 2013

Judgment of: Judge Manousaridis

First Court Date: 17 September 2013

Delivered at: Sydney

Delivered on: 18 September 2013

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondent: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

3. The costs ordered to be paid in paragraph 2 be fixed in the sum of $1,115.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1981 of 2013

SZRNJ

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. There came before me yesterday, on a first court date, an application for judicial review of a decision of a delegate of the first respondent (Minister) made on 18 May 2010. By that decision, the delegate refused to grant the applicant an Other Family (Residence) (Class BU) subclass 835 visa.

2. The Minister sought dismissal of the application on the ground this Court does not have jurisdiction to entertain the claim. The Minister submitted that under s.476(2)(a) of the Migration Act1958 (Cth) this Court does not have jurisdiction over a “primary decision”. A “primary decision” is defined in s.474(4) of the Act as a “privative clause decision” or a “purported privative clause decision” that is reviewable under Part 5 of Part 7 or s.500 of the Act, or which would have been reviewable if an application for such review had been made within a specified time.

3. The Minister further submitted that the delegate’s decision the subject of this application is a privative clause decision that is reviewable under Part 5 of the Act. In particular, it is an “MRT-reviewable decision” within the meaning of s.338(2) of the Act. That sub-section provides:

   A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:

   (a) the visa could be granted while the non-citizen is in the migration zone; and

   (b)the non-citizen made the application for the visa while in the migration zone; and

   (c)the decision was not made when the non-citizen:

   (i)was in immigration clearance; or

   (ii)had been refused immigration clearance and had not subsequently been immigration cleared; and

   (d)where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

   (ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

4. I am satisfied that each of the elements of the definition of MRT-reviewable decision is satisfied in this case in relation to the delegate’s decision of which the applicant seeks judicial review.

5. First, the visa for which the applicant applied, and which the delegate refused to grant, is one which could have been granted while a non-citizen was in the migration zone.

6. Second, although there is no direct evidence the applicant was in the migration zone on 1 August 2008 when he applied for the visa, I infer that he was in the migration zone. On 8 August 2008 he was granted a bridging visa E – subclass 050; and, according to the affidavit the applicant filed in support of his application, he arrived in Australia in October 1990 when he was two or three years with his mother, father, and older brother.

7. Third, at the time the delegate made his decision, the applicant was the holder of a bridging visa E – subclass 050. The applicant, therefore, was not at that time in immigration clearance. And there is nothing to suggest he has been refused immigration clearance and has not been subsequently immigration cleared.

8. Fourth, s.338(2)(d) of the Act is not relevant because the class of visa for which the applicant applied was not a temporary visa.

9. In these circumstances, I am satisfied the Court does not have jurisdiction to entertain the application and I propose to dismiss it.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date:  18 September 2013