Funaki v Minister for Immigration & Multicultural Affairs [2000] FCA 1056

FEDERAL COURT OF AUSTRALIA

Funaki v Minister for Immigration & Multicultural Affairs [2000] FCA 1056 CITIZENSHIP AND MIGRATION – application for order of review of decision of Minister refusing to substitute a more favourable decision pursuant to s 351 of the Migration Act 1958 (Cth) – application for removal of proceeding to High Court – where clear that Federal Court has no jurisdiction to entertain the application for review Migration Act 1958 (Cth) ss 351, 417, 475, 476, 485 Judiciary Act 1903 (Cth) s 39B Minister for Immigration v Ozmanian (1997) 71 FCR 1 referred to TEVITA FUNAKI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR N 345 OF 2000 EMMETT J 26 JULY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 345 OF 2000

BETWEEN: TEVITA FUNAKI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

THE COMMONWEALTH OF AUSTRALIA

SECOND RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 26 JULY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicant's notice of motion filed 7 July 2000 be dismissed. 2. The applicant pay the respondent's costs of the motion. 3. The application be dismissed. 4. The applicant pay the respondent's costs of the proceedings. 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 345 OF 2000

BETWEEN: TEVITA FUNAKI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

THE COMMONWEALTH OF AUSTRALIA

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 26 JULY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 12 April 2000 the applicant lodged an application for an order of review under sections 475 and 476 of the Migration Act 1958 (Cth) ('the Migration Act'). The application begins as follows: "Application to review the decision of the Minister to refuse to exercise his discretion under section 351 of the Migration Act 1958 was incorrect, unconstitutional and involved some breaches of the UN Treaties as ratified by the Commonwealth." 2 The application asserts that the decision is incorrect, unconstitutional and involved some breaches of the UN Treaties as ratified by the Commonwealth. The date of the decision to be reviewed is said to be 7 April 2000. The application then goes on to specify seven grounds of the application, I shall come back to those grounds in a moment. The orders sought are as follows: "1. That the Court may order to remit the decision to the Minister for reconsideration according to law.