NADQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 461

FEDERAL COURT OF AUSTRALIA

NADQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 461 NADQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1678 OF 2001 EMMETT J 15 APRIL 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1678 OF 2001

BETWEEN: NADQ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 15 APRIL 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed; and 2. the applicant pay the respondent's costs. 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 1678 OF 2001

BETWEEN: NADQ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 15 APRIL 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant arrived in Sydney on 14 August 1986 on a three month visitor visa. On 13 October 1986 he lodged an application for resident status. That application was refused on 26 October 1988. The applicant lodged a request for reconsideration on 14 November 1988. The reconsideration was refused on 4 January 1990. It is not clear whether the applicant was the holder of a visa in the meantime. However, on 13 September 1999 a bridging visa was granted. 2 On 26 April 2001 the applicant lodged an application for a protection visa and on 13 May 2001 a bridging Class E visa was granted pending the consideration of the application for a protection visa. That bridging Class E visa was cancelled on 5 September 2001 pursuant to s 501 of the Migration Act 1958 (Cth) ("the Act"). The applicant then sought review of that decision by the Administrative Appeals Tribunal ("the Tribunal"). On 29 November 2001 the Tribunal affirmed the decision to cancel the Class E visa. By notice of appeal filed on 24 December 2001, the applicant purported to appeal from the decision of the Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). 3 The Tribunal's decision of 29 November 2001 is a privative clause decision as defined in s 474(2) of the Act. Accordingly, pursuant to s 483 of the Act, s 44 of the AAT Act does not apply to the decision. The appeal, as originally framed, is therefore incompetent. On the other hand, the Minister accepts that the Court has jurisdiction to deal with the matter pursuant to s 39B of the Judiciary Act 1903 (Cth) subject to the operation of s 474(1). 4 Section 474(1) provides that a private clause decision: · is final and conclusive; and · must not be challenged, appealed against, reviewed, quashed or called in question in court; and · is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.