Leal v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 932

FEDERAL COURT OF AUSTRALIA

Leal v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 932 JONNY TIN FU LEAL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 383 OF 2002 EMMETT J 22 JULY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 383 OF 2002

BETWEEN: JONNY TIN FU LEAL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 22 JULY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed; and 2. the applicant pay the respondent's costs of the proceeding. 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 383 OF 2002

BETWEEN: JONNY TIN FU LEAL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 22 JULY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a national of Brazil. He first entered Australia on a student visa on 20 January 1996. That visa was valid until 17 February 1997. On that day, the applicant was granted a further visa which remained valid until 15 March 2000. On 15 June 2000 the applicant was granted a further student visa which was valid until 16 April 2001. On 2 April 2001 the applicant applied for Student (Temporary) (Class TU) visa. He has since held a bridging visa granted on the basis of the basis of that application. On 2 May 2001 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant a student visa. On 30 May 2001 the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 8 April 2002 the Tribunal affirmed the Minister's decision not to grant a visa. 2 The applicant commenced this proceeding on 2 May 2002 by application and affidavit. In his application the applicant seeks review of the Tribunal's decision under s 39(b) of the Judiciary Act 1903 (Cth). In the affidavit in support filed on 2 May 2002 the applicant says: "I believe that MRT does not make a correct view of decision on my student visa cancellation. Enclosed are documents of decision from MRT. I am a genuine student in Australia." The affidavit then goes on to describe in more detail the applicant's study history in Australia by way of justification of the assertion that the Tribunal did not "make a correct view" of his application. 3 The decision of the Tribunal is a "privative clause decision" within the meaning of s 474(2) of the Migration Act 1958 (Cth) ("the Act"), in that it was a decision of an administrative character made under the Act. Section 474(1) of the Act provides that a privative clause decision: "(a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration orcertiorariin any court on any account." 4 The applicant was notified of the Tribunal's decision by letter of 8 April 2002, which enclosed a copy of the Tribunal's reasons. The letter went on to say as follows: "If you disagree with the Tribunal's decision, you may have appear rights, including under Part 8 of the Migration Act 1958, which deals with the review of decisions by the Federal Court or the Federal Magistrates Court. If you wish to find out more about your appeal rights, you could seek advice from a registered migration agent, a solicitor, a legal service or a relevant community organisation.