FEDERAL COURT OF AUSTRALIA
Buultjens v Robertson [2010] FCA 134
Citation: Buultjens v Robertson [2010] FCA 134 Appeal from: Application for leave to appeal:
Buultjens v Robertson [2009] FCA 1537Parties: LLEWELLYN FREDRICK BUULTJENS v STUART ROBERTSON File number(s): VID 6 of 2010 Judge: GRAY J Date of judgment: 16 February 2010 Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 8
Australian Courts Act 1828 (UK), ss 20, 21, 22
Commonwealth of Australia Constitution Act, ss 51, 52, 58, 59, 75(v), 76, 76(ii), 77, 77(i), 118
Criminal Code Act 1995 (Cth), ss 268.10, 268.11, 268.12, 268.13
Federal Court of Australia Act 1976 (Cth), ss 24(1A), 31A
Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), ss 5(1), 5E, 351, 351(1), 351(3), 351(7), 474(2), 474(3), 474(4), 474(5), 474(6), 476A, 476A(1)Cases cited: Buultjens v Robertson [2009] FCA 1537 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 appliedDate of hearing: 16 February 2010 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 22 Counsel for the appellant: The appellant appeared unrepresented Counsel for the respondent: Mr N Rogers Solicitor for the respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 6 of 2010
BETWEEN: LLEWELLYN FREDRICK BUULTJENS
AppellantAND: STUART ROBERTSON
Respondent
JUDGE:
GRAY J
DATE OF ORDER:
16 FEBRUARY 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The appellant pay the respondent’s costs of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 6 of 2010
BETWEEN: LLEWELLYN FREDRICK BUULTJENS
AppellantAND: STUART ROBERTSON
Respondent
JUDGE:
GRAY J
DATE:
16 FEBRUARY 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application by notice of motion, filed on 15 January 2010, seeking leave to appeal from a judgment of a single judge of the Court, given on 18 December 2009. A notice of appeal from that judgment was filed by the appellant on 11 January 2010. The judgment was an interlocutory judgment, dismissing the appellant’s application to the Court at first instance, on the ground that the application was incompetent. The learned primary judge held that the application did not fall within the jurisdiction of this Court, because of the operation of s 476A of the Migration Act 1958 (Cth) (“the Migration Act”). See Buultjens v Robertson [2009] FCA 1537.
The proceeding at first instance was commenced by filing an application on 26 November 2009. That application sought an order under s 75(v) of the Constitution in the nature of a writ of mandamus, directed to the respondent, Stuart Robertson, Branch Manager, Ministerial Intervention Unit, Department of Immigration and Citizenship, directing him to submit to the Minister for Immigration and Citizenship (“the Minister”) an application by the…
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- Case
- [2010] FCA 134
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the proceeding at first instance was within the jurisdiction of the Court, by reason of s 476A of the Migration Act. The Court had to interpret the relevant provisions of the Migration Act, including ss 476A, 474, 5, and 5E, to determine what constituted a "migration decision" and whether the applicant's claim fell within the types of decisions listed in s 476A(1). The Court also had to consider the constitutional validity of s 476A in terms of legislative power.
The Court held that the primary judge was correct to hold that the proceeding at first instance was not within the jurisdiction of the Court, by reason of s 476A of the Migration Act. The Court found that s 476A excluded the jurisdiction of the Court under any other law, including s 39B of the Judiciary Act and s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and conferred original jurisdiction on this Court in relation to a "migration decision" if, and only if, the decision was one of four kinds listed in that subsection. The Court further held that the applicant's claim did not fall within the types of decisions listed in s 476A(1), as it was a claim for relief under s 39B of the Judiciary Act in respect of a decision made under the Migration Act, even if what he was complaining about was the failure to make a decision. The Court also found that the Parliament had legislative power to make laws defining the jurisdiction of this Court arising under any laws made by the Parliament.
The final orders of the Court were to dismiss the appeal and affirm the decision of the primary judge. The Court held that the proceeding at first instance was not within the jurisdiction of the Court, by reason of s 476A of the Migration Act, and that the primary judge was correct to dismiss the proceeding.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It is clear that the primary judge was correct to hold that the proceeding at first instance was not within the jurisdiction of the Court, by reason of s 476A of the Migration Act. Subsection (1) of that section excludes the jurisdiction of the Court under any other law, including s 39B of the Judiciary Act and s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and confers original jurisdiction on this Court in relation to a “migration decision” if, and only if, the decision is one of four kinds listed in that subsection. To determine what is a migration decision, it is necessary to go to s 5(1) of the Migration Act. The definition of “migration decision” has three elements: a privative clause decision; a purported privative clause decision; and a non-privative clause decision. Each of those terms is, in turn, defined. The definition of non-privative clause decision refers the reader to s 474(6) of the Migration Act. The definition of privative clause decision refers the reader to s 474(2). The definition of purported privative clause decision refers the reader to s 5E of the Migration Act. By s 474(2) of the Migration Act, a privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under the Migration Act, or under a regulation or other instrument made under the Migration Act (whether in the exercise of a discretion or not), other than a decision referred to in subss (4) or (5). Subsection (3) gives an expansive definition of “decision”, which includes, in para (b), refusing to give a certificate, direction, approval, consent or permission, including a visa, and, in para (j), a failure or refusal to make a decision. The list of decisions in s 474(4) that are not privative clause decisions does not include any reference to a decision made, or required to be made, under s 351. By s 474(6), a decision mentioned in s 474(4), or specified in regulations made under s 474(5), is a non-privative clause decision. By s 5E of the Migration Act, a purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made under the Migration Act, or a regulation or other instrument made under the Migration Act (whether in purported exercise of a discretion or not) that would be a privative clause decision if there were not either a failure to exercise jurisdiction, or an excess of jurisdiction, in the making of the decision. Subsection (2) of s 5E defines the word “decision” for the purposes of that section as including anything listed in s 474(3). Applying these complex definitions to the provisions of s 476A makes it clear that what the appellant sought in the proceeding at first instance was relief under s 39B of the Judiciary Act in respect of a decision made under the Migration Act, even if what he was complaining about was the failure to make a decision. It is clear that s 476A of the Migration Act excluded such a decision from those in respect of which this Court has original jurisdiction. By a combination of ss 77(i) and 76(ii) of the Constitution, it is clear that the Parliament has legislative power to make laws defining the jurisdiction of this Court arising under any laws made by the Parliament. There can be no issue of the constitutional validity of s 476A in terms of legislative power.