Pheng v Minister for Immigration & Multicultural Affairs

Consideration 23 Ms Pheng did not make an application to the MIRO in accordance with s339 of the Act. Mr Uch purported to make the application when he did not have the requisite standing to do so. There was no jurisdiction in accordance with s340 of the Act for a review officer to make a decision to review the decision of the delegate. Consequently, there was no IRT reviewable decision for the purposes of s346 of the Act and no application could be made under s347 of the Act to review the delegate's decision. The transitional provisions of the 1998 Act had no relevant application. As there was nothing properly before the IRT in respect of Ms Pheng before 1 June 1999, there could be nothing before the MRT on or after that date. 24 The mandatory nature of the requirement to properly apply for an internal review of a delegate's decision is accurately reflected in the judgment of Mansfield J in Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 at 450-455 and also in the judgment of Lehane J in Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 at 102. 25 It is strictly unnecessary to deal with the respondent's submission that the letter from the Deputy Registrar of the MRT did not constitute a decision of the MRT. However, having read the judgment of Branson J in Le Tran Thuy v Minister for Immigration and Multicultural Affairs [1999] FCA 1598 especially at par [15] thereof, I have no reason to doubt the correctness of that submission. Consequently, if the letter of the Deputy Registrar was a "decision", it was not a judicially reviewable decision under s476 of the Act. 26 The objection to competency having been made out, there is no need to consider the grounds of review raised by Ms Pheng.

(1997) 75 FCR 446

(1998) 87 FCR 99