NADE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 549

NADE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 549

The decision evidenced by the letter of 25 February 2002, whether characterised as a decision of the Minister or as a decision of a departmental officer not to refer the matter to the Minister, was a privative clause decision made, required to be made, or proposed to be made under the Migration Act 1958 (Cth). Section 476(2) expressly excluded the Federal Court's jurisdiction, including jurisdiction under s 39B of the Judiciary Act 1903 (Cth), in respect of a decision not to exercise or not to consider exercising the Minister's power under s 48B. The ADJR Act was also unavailable because privative clause decisions were excluded. The application was therefore incompetent.

Jurisdiction
Australia
Judgment Date
24 April 2002
Procedural Posture
Application for Judicial Review of a Migration Decision Concerning a Request for Ministerial Intervention Under S 48 B of the Migration Act 1958 (cth) / Hearing of the Respondent's Notice of Objection to Competency; Final Judgment
Outcome
Application dismissed with costs.
Legal Topics
['protection Visa' 'further Application for Protection Visa' 'ministerial Discretion Under S 48 B' 'privative Clause Decision' 'federal Court Jurisdiction' 'administrative Decisions (judicial Review) Act Exclusion']
['migration Law' 'administrative Law' 'federal Jurisdiction'] ['protection Visa' 'further Application for Protection Visa' 'ministerial Discretion Under S 48 B' 'privative Clause Decision' 'federal Court Jurisdiction' 'administrative Decisions (judicial Review) Act Exclusion']

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Procedural Posture

Application for Judicial Review of a Migration Decision Concerning a Request for Ministerial Intervention Under S 48 B of the Migration Act 1958 (cth) / Hearing of the Respondent's Notice of Objection to Competency; Final Judgment

Legal Issues

  1. 1 ["Whether the Federal Court had jurisdiction to review the decision evidenced by the letter of 25 February 2002 refusing to refer the applicant's request for consideration under s 48B of the Migration Act 1958 (Cth)." 'Whether the decision was a privative clause decision within the meaning of s 474(2) of the Migration Act 1958 (Cth).' 'Whether s 476(2) of the Migration Act 1958 (Cth) excluded Federal Court jurisdiction, including jurisdiction under s 39B of the Judiciary Act 1903 (Cth), in respect of a decision not to exercise or consider exercising the power under s 48B.' 'Whether reliance on s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) was available.']

Ratio Decidendi

The decision evidenced by the letter of 25 February 2002, whether characterised as a decision of the Minister or as a decision of a departmental officer not to refer the matter to the Minister, was a privative clause decision made, required to be made, or proposed to be made under the Migration Act 1958 (Cth). Section 476(2) expressly excluded the Federal Court's jurisdiction, including jurisdiction under s 39B of the Judiciary Act 1903 (Cth), in respect of a decision not to exercise or not to consider exercising the Minister's power under s 48B. The ADJR Act was also unavailable because privative clause decisions were excluded. The application was therefore incompetent.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the respondent's costs."]