Applicant S395 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 171

FEDERAL COURT OF AUSTRALIA

Applicant S395 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 171

APPLICANT S395 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 516 of 2005

WILCOX, MERKEL and JACOBSON JJ
17 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 516 of 2005

BETWEEN:	APPLICANT S395 OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	WILCOX, MERKEL and JACOBSON JJ
DATE OF ORDER:	17 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The orders made by Moore J on 15 March 2005 be varied so as to delete orders 2 and 3; otherwise the appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 516 of 2005

BETWEEN:	APPLICANT S395 OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WILCOX, MERKEL and JACOBSON JJ
DATE:	17 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal from a decision of Moore J given on 15 March 2005.  His Honour was dealing with a proceeding remitted to this Court by Heydon J, of the High Court of Australia, by an order dated 1 November 2004.  Moore J held this Court had no jurisdiction to deal with the proceeding.

2. The proceeding challenges a decision of the Acting Minister for Immigration and Multicultural and Indigenous Affairs. On 5 May 2004, the Acting Minister informed the appellant of the result of an application the appellant had made that the Acting Minister exercise his powers under s 417 of the Migration Act 1958 (‘Cth’) (‘the Act’).

3. The Acting Minister said:

   ‘After considering your case, I have decided not to exercise my public interest power.’ 

4. Section 476(2) of the Migration Act states this Court does not have any jurisdiction in respect of a decision of the Minister not to exercise, or not to consider the exercise of, the Minister's power, inter alia, under s 417 of the Act.

5. Section 476(4) of the Act provides that, despite s 44 of the Judiciary Act 1903 (Cth), the High Court must not remit a matter to the Federal Court if it relates to a decision or matter in respect of which the Federal Court would not have jurisdiction because of s 476.

6. At one time, there might have been some uncertainty as to the operation of these statutory provisions.  However, it is clear from the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1, 211 CLR 441, that relief cannot be granted pursuant to s 75(v) of the Constitution in relation to a decision by the Minister under s 417 of the Act: see [34], [38] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan JJ) and [98] to [100] (Gaudron and Kirby JJ).

7. Relief under s 75(v) was the type of relief that was sought by the present appellant when he commenced this proceeding in the High Court. It ought, therefore, to have been obvious, when the matter was before the High Court, that the High Court had no jurisdiction to grant the relief that was sought by the appellant. It should also have been obvious, having regard to s 476(2) and s 476(4) of the Act, that this Court also would lack jurisdiction to grant the desired relief.

8. Despite this, and unfortunately, Heydon J remitted the matter to this Court, putting the Court to the unnecessary burden of hearing a matter in relation to which it had no jurisdiction, and imposing on this Full Court the necessity of considering the appellant's meritless appeal against the first instance decision.  Moore J correctly held the Federal Court had no jurisdiction in the matter.  He dismissed the proceeding with costs, fixed in the sum of $2000. 

9. I am of the opinion that his Honour was correct in ordering that the proceeding be dismissed.  However, I think that, under the circumstances, it was an erroneous exercise of discretion for his Honour to order that the appellant pay the respondent's costs of the hearing before him.  I cannot but feel that, if the matter had been properly argued before Heydon J, the proceeding would not have been remitted to this Court at all; thus the appellant would not have been exposed to the burden of a costs order against him.

10. The legal representatives of the Minister must bear the prime responsibility for the matter of jurisdiction not being properly argued before Heydon J.  The appellant has at all times been self represented.  He could not have been expected to understand the complexities of the law in this area. 

11. On the other hand, the appellant should, in my view, pay the respondent's costs of this appeal.  The appellant filed a notice of appeal against the decision of Moore J.  He set out a number of grounds of appeal.  However, none of them is really comprehensible.  None dealt with the problem of jurisdiction identified by Moore J.

12. When the appellant was asked to explain to this Court why Moore J had erred in law. He said he had nothing to say about that matter.  If the appellant had nothing to say against the judge's decision, it was irresponsible for him to file an appeal that would require the constitution of a Full Court in order to consider his non-argument.

13. I propose that the orders made by Moore J on 15 March 2005 be varied so as to delete orders 2 and 3; otherwise the appeal be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:
Dated:             12 September 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 516 of 2005

BETWEEN:	APPLICANT S395 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WILCOX, MERKEL and JACOBSON JJ
DATE:	17 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MERKEL J:

1. I agree with the orders proposed by Wilcox J and with his Honour’s reasons for making those orders. I would add that it is clear that this Court has no jurisdiction in respect of the Minister's decision not to exercise her power under s 417 of the Migration Act 1958 (Cth): see s 476(2). It is also clear that the High Court is not to remit a matter to the Federal Court that relates to a matter in respect of which the Federal Court would not have jurisdiction: see s 476(4).

2. When this matter came on for hearing in the High Court, the Minister was represented by counsel and the appellant was self-represented.  It is regrettable that counsel for the Minister did not inform the court that the remission that was being considered was prohibited by s 476(4).  In those circumstances, this matter should not have been remitted to this Court and the appellant can, understandably, be forgiven for not having taken the point before the High Court.  I do not think the same can be said in respect of the Minister.

3. As these proceedings should not have been in this Court, the costs order at first instance was one that in all the circumstances ought not to have been made.  However, I agree that the appellant stands in a different position in respect of the appeal; an appeal that he did not seek to argue and which did not, on the points he has made to this Court, have any basis whatsoever.

4. For those reasons, I agree with the orders proposed by Wilcox J.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:
Dated:             25 August 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 516 of 2005

BETWEEN:	APPLICANT S395 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WILCOX, MERKEL and JACOBSON JJ
DATE:	17 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

JACOBSON J:

1. I agree with the orders proposed by Wilcox J for the reasons given by him and as supplemented in the reasons given by Merkel J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:
Dated:             12 September 2005

The Appellant appeared in person.
Counsel for the Respondent:	Mr G Johnson
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 August 2005
Date of Judgment:	17 August 2005