FEDERAL COURT OF AUSTRALIA

Theunissen v The Principal Member of the Migration Review Tribunal

[2003] FCA 1417

Migration Regulations 1994 (Cth) cl 309.511 sch 2

TERRENCE JOHN THEUNISSEN V THE PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL & ANOR

V1029 of 2003

HEEREY J

27 NOVEMBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1. The application for interlocutory relief is dismissed.
2. The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant is a South African citizen.  On 1 December 2000 he applied for a subclass 309 temporary spouse visa and a subclass 100 permanent spouse visa.  He married an Australian citizen and on 16 February 2001 he was granted the temporary spouse visa.  A temporary spouse visa remains in effect until an individual is notified about a decision on his or her permanent spouse visa application: see cl 309.511 of sch 2 of the Migration Regulations 1994 (Cth).  A delegate of the Minister on 28 November 2002 made a decision to refuse to grant a permanent spouse visa to the applicant. In substance the reason was that the applicant had since been separated from his wife and the delegate was not satisfied that the criteria for the domestic violence exception had been satisfied.

2                     On 11 December 2002 the applicant sought a review of that application by the Migration Review Tribunal.  That application has not yet been heard.  In an affidavit sworn 26 November 2003, Mr David Hodgett, the Victorian District Registrar of the Tribunal, explained both the substantial workload of the Tribunal, amounting in the last financial year to 2289 applications and the system in which priorities are allocated to different categories of application. 

3                     On 14 November 2003 the applicant filed an application in this court, he claimed:

(1)   An order compelling the first respondent [the principal member of the Tribunal]

                   to forthwith elevate the priority of the review before it so that it might be reviewed forthwith;

(2) An order compelling the second respondent, [the Minister] to forthwith reinstate his temporary spouse visa, pending the issue of a subclass 100 permanent spouse visa; and

(3) An order compelling the first and second respondents to forthwith issue or cause to be issued a subclass 100 visa to him.

4                     The applicant claimed by way of interlocutory relief an order that the Minister forthwith restore his temporary spouse visa pending the issue of a permanent spouse visa,

            “In order that applicant might obtain relief from imminent destitution, in that applicant might again qualify for the income assistance which he previously received from Centrelink under that visa in terms of the provisions in the Social Securities Act, whilst a holder of such a visa.”

5                     I am satisfied I do not have jurisdiction to make the orders sought. The jurisdiction of this Court is limited to reviewing the legality of decisions made.  There has been no decision made by the Tribunal and I cannot simply direct the Minister to issue a particular visa, especially where the regulations specifically provide that the visa previously held ceases to have effect. 

6                     I therefore dismiss the application for interlocutory relief. I order that the applicant pay the respondent's costs.

Associate:

Dated:              27 November 2003