Liu v Minister for Immigration [2006] FMCA 1712

This application is an "Application under Migration Act" filed by the Applicant on 26 July 2006 under r.44.05 of the Federal Magistrates Court Rules 2001 ("FMCA Rules") ("the Application") for the Respondent to "show cause why a remedy should not be granted in exercise of the Court's jurisdiction under section 476 of the Migration Act 1958".

The Grounds of Application set out in the Application are as follows:

"1. The decision of the delegate involved jucisdictional (sic) error in that fail (sic) to apply to the correct legislation and involved errow (sic) of law.

2. The delegate failed to adequately take intor (sic) account the Schedule 5A(d)(ii) that the holder of a student visa - successfully completed a substantial part of a course(other than a foundation course)

3. The delegate came to a wrong conclusion based on apply to (sic) the incorrect legislation"

The Application, although not stating the name of the decision-maker, makes it clear that it is the decision of the Minister's delegate ("the Delegate") which is under review. There are no details provided in the Application in regard to any Tribunal decision. The Applicant confirmed at the hearing that he has never sought merits review through the Migration Review Tribunal ("MRT").

The Applicant sought the following orders, as set out in the Application:

"1. An order that the Decision of the Department of Immigration made on 16 June 2006 for (sic) not to grant a student visa to the applicant be declared void.

2. An order that the decision of the delegate of the Respondent be remitted to the Department of Immigration, differently constituted, for further consideration according to the law.

3. An order that the Respondent pay the costs of the applicant in these proceedings."

The Applicant filed an affidavit, sworn on 25 July 2006, with the Application on 26 July 2006 ("Applicant's Affidavit").

The Applicant's Affidavit states the following:

"1. I am the applicant who seeks to review of (sic) Department of Immigration decision refusal of student visa by Federal Magistrate.

2. I am a genuine student in Australia and I believed that I have satisfied the student visa criteria and should be granted a student visa in Australia."

Attached to the Applicant's Affidavit is the letter of the Delegate sent to the Applicant which states that there has been a refusal to grant the student visa and the reasons for that decision. These materials are covered in more detail below.

The Response and Notice of Objection to Competency

A Response was filed by the Respondent on 2 August 2006 ("the Response") opposing the Application under r.44.06(2)(a) of the FMCA Rules on the grounds that the Court lacks jurisdiction to hear the application.

The particulars of the Response are as follows:

"a) The decision sought to be reviewed is a "primary decision" as that term is defined at s.476(4) of the Migration Act 1958 (Cth) ("the Act").

b) Pursuant to s.476(2)(a) of the Act, the Federal Magistrates Court has no jurisdiction in relation to a primary decision."

The Respondent also filed a Notice of Objection to Competency on 21 August 2006 ("Notice of Objection"), objecting to the jurisdiction of the Court on the same basis as outlined in the Response.

The Applicant's Affidavit attached a letter from the Delegate ("Delegate's Letter") and the Decision Record of the Delegate ("Delegate's Decision"), both dated 16 June 2006.

The Delegate's Decision sets out the reasons for the decision, relevantly, as follows:

"You are enrolled in, or have been offered a place in, a principal course of study that has been specified by Gazette Notice as a type of course for a subclass 572 visa. Accordingly, you have been primarily assessed against the criteria for the grant of a subclass 572 visa.

You did not satisfy Regulation 572.223(2)(a)(i)(A) for the following reasons:

Applicant unable to provide evidence that he has met the English language requirements as set out in schedule 5A."

The Delegate's Decision also states that the Applicant's visa application was assessed against other subclasses within Student (Temporary) (Class TU) and that the Applicant "did not satisfy the primary criteria for any of these subclasses". In relation to the reasons for this conclusion it suffices to say that the Delegate's Decision states in the first paragraph:

"... All applicants are assessed against these criteria, and there is no discretion for decision-makers to grant a visa to an applicant who does not satisfy all the relevant criteria."

Section 476 of the Migration Act provides:

"(1) Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

(2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:

primary decision means a privative clause decision or purported privative clause decision:

(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b) that would have been so reviewable if an application for such review had been made within a specified period."

Under s.474(1) of the Migration Act, a privative clause decision:

(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 or certiorari in any court on any account."

Section 474(2) of the Migration Act defines "privative clause decision" as follows:

"means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)."

Subsections (4) and (5) are not presently relevant.

The Application stated that the Delegate's Decision was made pursuant to regulation 572.223(2)(a)(i)(A) of the Migration Regulations, 1994 (Cth). However, as Mr Markus for the Respondent pointed out, the decision would have been made under s.65 of the Migration Act. This decision was an MRT-reviewable decision under Part 5 of the Migration Act, in particular s.338(2)(a), (b) and (c) of the Migration Act.

The Delegate's Decision was a privative clause decision under s.474(2) of the Migration Act, and specifically, a decision of the type described in s.474(3)(b) of the Migration Act as a decision to refuse to approve the grant of a visa applied for. The Court is therefore satisfied that the Delegate's Decision is a privative clause decision.

The definition of a primary decision is set out above in para. 16.

The decision which is the subject of the Application and Response is the Delegate's Decision. That decision is a primary decision as defined in s.476(4) of the Migration Act as it is a privative clause decision which would have been reviewable under Part 5 of the Migration Act if an application for review had been made to the Migration Review Tribunal within the specified time period.

As the Delegate's Decision is a primary decision, it follows that this Court has no jurisdiction to hear this matter pursuant to s.476(2)(a) of the Migration Act: see SZEUB v Minister for Immigration & Anor [2006] FMCA 1589 at paras. [3] and [8] - [9] per Emmett FM, and note the helpful discussion of this issue in C. Yuen, "Judicial Review of Migration Decisions in the Federal Magistrates Court", Law Society Journal (April 2006), p.66 at 68.

Accordingly, as the Application is incompetent, I uphold the Notice of Objection and dismiss the Application.

a) that the Application be dismissed; and

b) that the Applicant pay the Respondent's costs.

I will hear the parties as to the quantum of costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lucev FM