Moss v Minister for Immigration and Border Protection [2017] FCA 1243

FEDERAL COURT OF AUSTRALIA

Moss v Minister for Immigration and Border Protection [2017] FCA 1243 File number: NSD 1390 of 2017

Judge: MARKOVIC J

Date of judgment: 20 October 2017

Catchwords: MIGRATION – application for review of a decision of a delegate of the Minister for Immigration and Border Protection – where delegate's decision was not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), a decision made under s 501(3A) of the Act – whether Court has jurisdiction to review delegate's decision – application dismissed

Legislation: Federal Court of Australia Act 1976 (Cth) s 43(3)(d) Migration Act 1958 (Cth) ss 476A, 501(3A), 501CA(4)

Date of hearing: 20 October 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 22

Counsel for the Applicant: The applicant did not appear

Counsel for the Respondent: Ms R Francois

Solicitor for the Respondent: Clayton Utz

ORDERS NSD 1390 of 2017

BETWEEN: MICHAEL MOSS Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: MARKOVIC J DATE OF ORDER: 20 OCTOBER 2017

THE COURT ORDERS THAT:

1. Grant leave to the respondent to file in Court the affidavit of Sharon Anne Burnett affirmed 20 October 2017. 2. The proceeding be dismissed. 3. The applicant pay the respondent's costs fixed in the sum of $10,500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J: 1 By originating application filed on 14 August 2017 the applicant, Michael John Moss, commenced this proceeding. In his originating application Mr Moss seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (Minister) on 5 August 2016 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the mandatory decision under s 501(3A) of the Act to cancel Mr Moss' Class TY, Subclass 444 Special Category (Temporary) visa (Visa). The originating application attaches a copy of the delegate's statement of reasons for decision under s 501CA of the Act not to exercise the discretion to revoke the mandatory cancellation decision under s 501(3A).