GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
KAZI FAZLY ALAHI BODRUDDAZA PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS DEFENDANT
Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 18 April 2007 S241/2006
ORDER
Questions asked in the special case be answered as follows:
(1) Q. Does s 486A(1) of the Migration Act 1958 apply to the plaintiff's application to the High Court for remedies to be granted in exercise of the Court's original jurisdiction?
A.Yes.
(2)Q. If the answer to Question 1 is yes for any or all of the remedies applied for, is s 486A of the Migration Act 1958 invalid in respect of the plaintiff's application?
A.Yes.
(3)Q. If appropriate to answer having regard to the answers to questions 1 and 2, did the delegate of the Minister make a jurisdictional error in the course of assessing the plaintiff's visa application?
A.No.
(4)Q. By whom should the costs of the proceeding in this Honourable Court be borne?
A.The defendant should bear the costs of the plaintiff reasonably necessary for the determination of questions 1 and 2. The plaintiff should bear the costs associated with preparing and presenting the case in relation to question 3.
Representation
S B Lloyd with L J Karp for the plaintiff (instructed by Parish Patience Immigration Lawyers)
D M J Bennett QC, Solicitor-General of the Commonwealth with G R Kennett for the defendant and intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
S F Stretton with L K Byers intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Bodruddaza v Minister for Immigration and Multicultural Affairs
Constitutional law – High Court – Constitutional writs – Availability of constitutional relief in the High Court's original jurisdiction – A delegate of the respondent cancelled the plaintiff's visa – s 486A of the Migration Act1958 (Cth) purported to place a time limit on applications to the High Court exercising its original jurisdiction – The plaintiff applied for relief outside this time limit – Whether s 486A applies to the plaintiff's application – s 51(xxxix) of the Constitution conferred on Parliament power to regulate procedures for seeking relief under s 75(v) of the Constitution – To what extent this power is limited by the constitutional purposes of s 75(v) – Significance of s 75(v) in the federal scheme – Whether s 486A of the Migration Act1958 (Cth) is valid.
Certiorari – Interrelationship with s 75(v) of the Constitution – Whether s 486A of the Migration Act1958 (Cth) validly regulated the authority of the High Court to grant certiorari to the plaintiff.
Immigration – Cancellation of visa – The plaintiff's visa was cancelled because of a failure to meet language skills qualifications in the Migration Regulations 1994…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Bodruddaza v Minister for Immigration and Multicultural Affa...
Sign in free to access the full text
Details
AGLC
Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14
Case
[2007] HCA 14
Decision Date
CaseChat Overview and Summary
The High Court considered a constitutional challenge brought by Mr. Bodruddaza against the Minister for Immigration and Multicultural Affairs concerning the validity of a provision in the *Migration Act 1958* (Cth) that purported to limit the time for applying to the High Court in its original jurisdiction. The dispute arose after a delegate of the Minister cancelled Mr. Bodruddaza's visa, and he sought relief from the High Court outside the time limit prescribed by s 486A of the Act.
The central legal issues before the High Court were whether s 486A of the *Migration Act 1958* validly applied to Mr. Bodruddaza's application for constitutional relief, and if so, whether that section was itself constitutionally valid. This involved examining the scope of the Parliament's power under s 51(xxxix) of the Constitution to regulate procedures for seeking relief under s 75(v) of the Constitution, and the extent to which such regulation might be limited by the constitutional purposes of s 75(v) and its significance within the federal scheme. The Court also considered whether the decision to cancel Mr. Bodruddaza's visa constituted jurisdictional error, and whether the wording of Item 6A31 of the *Migration Regulations 1994* (Cth) was affected by the presumption that singular terms include the plural.
The Court reasoned that s 486A of the *Migration Act 1958* did apply to Mr. Bodruddaza's application for remedies in the High Court's original jurisdiction. However, the Court held that s 486A was invalid in its application to Mr. Bodruddaza's case, as it impermissibly infringed upon the constitutional jurisdiction of the High Court under s 75(v) of the Constitution. The Court found that while Parliament has the power to regulate the procedure for invoking s 75(v) jurisdiction, it cannot do so in a way that substantially impairs the constitutional purposes of that section, which include the availability of certain remedies against federal executive action. The Court also determined that the delegate had not made a jurisdictional error in assessing Mr. Bodruddaza's visa application.
The High Court answered the questions posed in the special case, finding that s 486A(1) applied to the plaintiff's application, but that s 486A was invalid in respect of that application. The Court also found no jurisdictional error by the delegate. The costs of the proceeding were ordered such that the defendant would bear the costs reasonably necessary for the determination of the validity of s 486A, while the plaintiff would bear the costs related to the jurisdictional error question.
Orders
Orders of the court
Questions asked in the special case be answered as follows:
(1) Q. Does s 486A(1) of the Migration Act 1958 apply to the plaintiff's application to the High Court for remedies to be granted in exercise of the Court's original jurisdiction?
A. Yes.
(2) Q. If the answer to Question 1 is yes for any or all of the remedies applied for, is s 486A of the Migration Act 1958 invalid in respect of the plaintiff's application?
A. Yes.
(3) Q. If appropriate to answer having regard to the answers to questions 1 and 2, did the delegate of the Minister make a jurisdictional error in the course of assessing the plaintiff's visa application?
A. No.
(4) Q. By whom should the costs of the proceeding in this Honourable Court be borne?
A. The defendant should bear the costs of the plaintiff reasonably necessary for the determination of questions 1 and 2. The plaintiff should bear the costs associated with preparing and presenting the case in relation to question 3.