SZLJM v Minister for Immigration & Citizenship [2008] FCA 300

FEDERAL COURT OF AUSTRALIA

SZLJM v Minister for Immigration & Citizenship [2008] FCA 300 MIGRATION – application for Ministerial intervention – unreviewability of decision not to refer application to Minister – application for leave to appeal refused Federal Court of Australia Act 1976 (Cth), s 24(1A) Migration Act 1958 (Cth), ss 417, 474, 476 Raikua v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 370, 158 FCR 510 cited SZFDZ v Minister for Immigration & Multicultural Affairs [2006] FCA 974 followed SZFDZ v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 759 cited Trinh v Minister for Immigration & Citizenship [2008] FCA 299 cited SZLJM v MINISTER FOR IMMIGRATION & CITIZENSHIP NSD 2381 OF 2007 FLICK J 7 MARCH 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY nsd 2381 OF 2007

BETWEEN: SZLJM

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

JUDGE: flick j

DATE OF ORDER: 7 March 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Application for Leave to Appeal be refused. 2. The Applicant to pay the costs of the First Respondent in the sum of $1,800.

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 NSD 2381 OF 2007

BETWEEN: szljm

Applicant

AND: minister for immigration & Citizenship

Respondent

JUDGE: flick J

DATE: 7 march 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an Application for Leave to Appeal against a decision given by the Federal Magistrates Court on 13 November 2007: SZLJM v Minister for Immigration & Citizenship [2007] FMCA 1945. 2 The Applicant in the proceedings before the Federal Magistrate sought to review a decision evidenced by a letter to the Applicant's solicitors dated 3 September 2007. That letter stated as follows: Dear Mr Bitel I am writing further to the letter of 5 June 2007, which advised that when an examination of Mr Danylo Biryukov's case was completed, you would be contacted. You requested that the Minister for Immigration and Citizenship, the Hon Kevin Andrews MP, exercise the public interest power under section 417 of the Migration Act 1958 (the Act) in Mr Biryukov's case. Your letter has been referred to me for response. As you may be aware, while section 417 of the Act provides the Minister with the power to substitute for a decision of the Refugee Review Tribunal a decision more favourable to the applicant, it is a non-compellable power. This case was previously brought to the attention of a Minister and was not considered. Cases previously brought to the attention of a Minister will not be considered unless additional information is provided that brings the case within the Guidelines and whereby it may be in the public interest to substitute a more favourable decision for that of a review authority. This case has been reassessed in the light of your letter. The additional information provided, in combination with the information provided previously, does not bring the case within the Minister's Guidelines. Therefore, no further action will be taken in respect of this request. Mr Biryukov should contact the nearest Regional office of this Department to discuss his status in Australia. Yours sincerely