FEDERAL COURT OF AUSTRALIA

Martinez v Minister for Immigration & Citizenship [2008] FCA 1994

ALEJANDRO TORO MARTINEZ v MINISTER FOR IMMIGRATION & CITIZENSHIP and ANOR

NSD 1100 of 2008

EMMETT J

5 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant file an application in accordance with Form 56A no later than 23 January 2009.

2.                  The proceeding be stood over for directions on 6 February 2009.

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

REASONS FOR JUDGMENT

1                     On 10 March 2008 the first respondent, the Minister for Immigration and Citizenship (the Minister), cancelled a visa held by the applicant.  The Minister acted pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act).  The applicant applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), for review of that decision.  On 19 June 2008, the Tribunal affirmed the decision.  The applicant then commenced a proceeding in the Federal Court purportedly by way of notice of appeal from the orders of the Tribunal. 

2                     There is doubt about the competence of that appeal because the Tribunal’s decision is a privative clause decision under the Act.  On the other hand, the Court would have jurisdiction to deal with an application for Constitution writ relief in relation to the decision of the Tribunal.  The respondents, the Minister and the Tribunal, filed notices of appearance, the Tribunal’s appearance being a submitting appearance. 

3                     However, on 26 August 2008, the applicant filed a notice of discontinuance.  It appears that he understood that it was no longer necessary to challenge the decision of the Tribunal.  However, it subsequently became apparent to the applicant that the Tribunal’s decision has the effect of affirming the decision to cancel his visa.  Accordingly, on 18 November 2008, the applicant commenced a fresh proceeding in this Court.  That fresh proceeding is number 1791 of 2008.  

4                     That proceeding is incompetent since it is out of time and the Court has no jurisdiction to deal with it.  On the other hand, the Minister is mindful of the fact that the applicant has not had an opportunity yet to test the decision of the Tribunal and has indicated that there would be no opposition to an application by the applicant in this proceeding, 1100 of 2008, for leave to withdraw the notice of discontinuance.  In the circumstances, it is clearly appropriate that leave be given to the applicant to withdraw the notice of discontinuance filed on 26 August 2008 and I propose to grant leave accordingly. 

Associate:

Dated:         13 January 2008