FEDERAL COURT OF AUSTRALIA

Martinez v Minister for Immigration & Citizenship (No 2) [2008] FCA 1995 

ALEJANDRO TORO MARTINEZ v MINISTER FOR IMMIGRATION & CITIZENSHIP and ANOR

NSD 1791 of 2008

EMMETT J

5 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                   The proceeding be dismissed as incompetent.

2.                   The costs of this proceeding be treated as costs in proceeding NSD 1100 of 2008.

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

REASONS FOR JUDGMENT

1                     This proceeding was commenced by filing an affidavit and draft notice of appeal on 18 November 2008 seeking an extension of time to appeal from a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), affirming a decision of the first respondent, the Minister for Immigration and Citizenship (the Minister), cancelling a visa held by the applicant under the Migration Act 1958 (Cth) (the Act).

2                     The appeal is incompetent since no appeal lies from a decision of the Tribunal under the Act.  Although Constitutional writ relief may have been available had the proceeding been commenced in time, the time within which a proceeding had to be commenced has expired.  Accordingly, the Court no longer has jurisdiction to deal with an application for a Constitutional writ in this proceeding.

3                     However, in proceeding 1100 of 2008 which was commenced within time, the applicant proposes to continue seeking Constitutional writ relief.  In the circumstances, it is appropriate that this proceeding be dismissed as incompetent.

Associate:

Dated:         14 January 2008