Barakat, Naoul v Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 270

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 90 of 1996 ) GENERAL DIVISION )

BETWEEN: NAOUL BARAKAT Applicant AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS & Anor Respondent

CORAM: EMMETT J. PLACE: SYDNEY DATED: 24 FEBRUARY 1997

EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: When this matter was called on for hearing, counsel for the respondent indicated that she was instructed to file notice of objection to competency and a document was then filed in Court. The basis for the objection is that the original application for an order of review is headed "Order 54." Order 54 of the Federal Court Rules is concerned with applications made under the Administrative Decisions (Judicial Review) Act 1977. My attention was drawn to the decision of Beazley J in Mahfoud v Minister for Immigration, Local Government & Ethnic Affairs which is reported in 43 FCR 217. In that case Beazley J concluded that the jurisdiction of the Court which is invoked by the filing of an application under the Administrative (Decisions Judicial) Review Act is quite independent of the jurisdiction which arises under the Migration Act. It was common ground before Beazley J that the application which was then under consideration purported to be an application brought under the provisions of the Administrative Decisions (Judicial Review) Act. On 10 May 1996 leave was granted for an amended application to be filed in these proceedings. It appears from a note on the file of Miss Henderson's instructing solicitors that a handwritten amendment was made to the amended application by Davies J at the time when it was filed. Thus, it does appear that the jurisdictional question was adverted to at that stage. The question which I now have to decide is whether the decision of Beazley J governs this case and if it does, whether I should follow it. In my opinion the circumstances before Beazley J are different from those which are before me. The critical difference appears to me to be the inclusion in the original application for an order of review and the amended application of the following sentence, namely: The applicant is taken to have received notice of the decision on 17 January 1996. Such a statement may be relevant in an application under the Administrative Decisions (Judicial Review) Act if the application is brought out of time. However, it is common ground that if the application is to be treated as one under the Migration Act it was brought in time.