SZUQH v Minister for Immigration
[2014] FCCA 1704
•31 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUQH v MINISTER FOR IMMIGRATION | [2014] FCCA 1704 |
| Catchwords: MIGRATION – Purported application to review a decision made under s.417 of the Migration Act 1958 (Cth) – application incompetent as the Court lacks jurisdiction to review the decision. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Applicant: | SZUQH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1840 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 31 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms D Watson Australian Government Solicitor |
INTERLOCUTORY ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of today’s hearing.
The Court declares that it lacks jurisdiction to deal with the purported application filed on 3 July 2014.
The application filed on 3 July 2014 is dismissed as incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1840 of 2014
| SZUQH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a purported judicial review application filed on 3 July 2014. The purported application seeks judicial review of a decision by the Minister under s.417 of the Migration Act 1958 (Cth) (Migration Act). The application is supported by an affidavit filed with it. Attached to that affidavit is a letter from the Minister’s Department dated 6 June 2014 to the applicant. That letter advises the applicant of the outcome of a request she made for the Minister to exercise his powers under s.417 of the Migration Act.
The Minister filed a response to the application on 10 July 2014. The response first refers to the notification letter from the Minister’s Department that I have just referred to. Secondly, the response notes that the Court has jurisdiction in relation to certain migration decisions but has no jurisdiction in relation to decisions referred to in s.476(2) of the Migration Act. Thirdly, the response notes that s.476(2)(d) of the Migration Act provides that this Court has no jurisdiction in relation to a privative clause decision or purported privative clause decision mentioned in s.474(7) of the Migration Act. Finally, the response notes that s.474(7)(a) of the Migration Act refers, among other things, to a decision of the Minister not to exercise the power conferred under s.417 of the Act.
The response is plainly correct. The Court has no jurisdiction to review a decision of the Minister to refuse to exercise or to decline to consider exercising the power conferred upon him under s.417.
The Court declares that it lacks jurisdiction to deal with the purported application filed on 3 July 2014.
I will order that the application filed on 3 July 2014 be dismissed as incompetent.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 1 August 2014
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