FEDERAL COURT OF AUSTRALIA
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368
IMMIGRATION – unlawful non-citizens – detention pending removal from Australia – where applicant alleges it is not reasonably practicable to remove – objection to jurisdiction – whether removal from Australia a privative clause decision within the meaning of Migration Act 1958 (Cth) – whether Migration Act 1958 (Cth) s 476A prevents Federal Court from entertaining claim for relief founded on jurisdictional error or tort – where concurrent claim in tort against officer of the Commonwealth within the meaning of s 39B of the Judiciary Act 1903 (Cth) – whether s 476A of the Migration Act 1958 (Cth) overcome by Federal Court’s accrued jurisdiction.
ADMINISTRATIVE LAW - whether ‘reasonable practicability’ of removal a jurisdictional fact – factors to be considered in assessing whether a factual reference is a jurisdictional fact to be finally determined by a court.
Held – reasonable practicability of removal not a jurisdictional fact – decision privative clause decision or purported privative clause decision within the meaning of Migration Act 1958 (Cth) – Federal Court lacks original jurisdiction in relation to claim founded on jurisdictional error or tort by reason of s 476A – claim not within Federal Court’s accrued jurisdiction.
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 48B, 198, 417, 476, 476A
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 8
Migration Litigation Reform Act 2005 (Cth)
Federal Court Rules O 20 r 2, O54BAl-Kateb v Godwin (2004) 219 CLR 562 referred to
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 referred to
Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 referred to
Buck v Comcare (1996) 66 FCR 359 referred to
Cabal v Attorney-General of the Commonwealth (2001) 113 FCR 154 referred to
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 referred to
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 referred to
NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 referred to
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 referred to
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 referred to
PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 referred to
Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 206 ALR 83 referred to
WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655 referred to
Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2000)ALI BEYAZKILINC v MANAGER, BAXTER IMMIGRATION RECEPTION AND PROCESSING CENTRE AND COMMONWEALTH OF AUSTRALIA
SAD 10 OF 2006BESANKO J
20 OCTOBER 2006
ADELAIDE
IN THE FEDERAL COURT…
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- Case
- [2006] FCA 1368
- Decision Date
CaseChat Overview and Summary
The court found that the statutory provisions, particularly the privative clause in section 474, precluded the court from entertaining the applicant's claims. The court held that the privative clause effectively barred the applicant from seeking judicial review of the decision to remove him from Australia. The court determined that the obligations imposed by section 198(6) of the Act, which require the removal of an unlawful non-citizen under certain conditions, were administrative in nature and subject to the privative clause. The court concluded that the applicant's claims were not justiciable due to the operation of the privative clause, which prevented any challenge to the decision to remove him.
The court ordered that certain paragraphs of the applicant's statement of claim be struck out. The court also granted the parties leave to make further submissions as to any other orders that should be made in light of the court's reasons. The court’s decision effectively dismissed the applicant's claims, affirming that the statutory framework precluded any judicial intervention in the decision to remove the applicant from Australia.
Orders
Orders of the court
1. Paragraphs 21, 22, 23 and 24 of the third amended statement of claim dated 28 March 2006 be struck out.
2. The parties have leave, if so advised, to make further submissions as to any other orders which should be made in light of these reasons.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: BESANKO J
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