Tuilau v Minister for Immigration and Ethnic Affairs

[2000] FCA 96

FEDERAL COURT OF AUSTRALIA

Tuilau v Minister for Immigration & Ethnic Affairs [2000] FCA 96

JONE LUI TUILAU v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

N 1426 of 1999

LINDGREN J
9 FEBRUARY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1426 of 1999

BETWEEN:	JONE LUI TUILAU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	9 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed for want of jurisdiction.

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	N 1426 OF 1999

BETWEEN:	JONE LUI TUILAU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	9 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

1. In this matter the applicant filed his application on 9 December 1999.  The proceeding has come before the Court for the first time today. 

2. The form of the application is confusing.  The applicant is in immigration detention.  He applied for a protection visa and in connection with that application applied for a bridging visa.  I have been informed by Mr Allatt of the Australian Government Solicitor’s Office that a bridging visa of one class was erroneously issued and then cancelled and the applicant applied for a visa of the correct class.

3. The applicant has made it clear today that he agrees that the decision which he intends to challenge in this proceeding is the decision to cancel the bridging visa initially granted to him.  This is consistent with his use of the word “cancel” in his application, although as I said earlier, the form of the application is confusing. 

4. As is well known, the jurisdiction of the Court is found in ss 475, 476 and 486 of the Migration Act l958 (Cth).  The jurisdiction is granted only in respect of “judicially-reviewable decisions”.  What matters for present purposes is that excluded from the notion of a “judicially reviewable decision” is an “IRT - reviewable decision”, now “MRT - reviewable decision”: see s 475(2)(c) of the Act.  The notion of an “MRT reviewable decision” is defined in s 338 of the Act.  Subsection 338(4) provides, relevantly, that “a decision to cancel a bridging visa held by a non-citizen who is in immigration detention because of that cancellation” is an MRT-reviewable decision. 

5. Accordingly, the decision which the applicant seeks to have reviewed in this proceeding is excluded from the range of decisions in respect of which this Court is given jurisdiction and I have no alternative but to dismiss the application on the ground of lack of jurisdiction. 

6. Accordingly, the Court orders that the application be dismissed for want of jurisdiction. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             11 February 2000

The applicant appeared in person
Solicitor for the Respondent:	Mr M Allatt of The Australian Government Solicitor’s Office
Date of Hearing:	9 February 2000
Date of Judgment:	9 February 2000