Charlie v Minister for Immigration
[2007] FMCA 1628
•26 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHARLIE v MINISTER FOR IMMIGRATION | [2007] FMCA 1628 |
| PRACTICE & PROCEDURE – Transfer of matter to the Federal Court – outside the jurisdiction of the Federal Magistrates Court. |
| Migration Act 1958 (Cth), ss.501(2) |
| Fisher v Minister for Immigration and Citizenship [2007] FCA 591 |
| Applicant: | DANIEL FRANK CHARLIE |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | SYG 2674 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | Decided without an oral hearing |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person |
| Solicitors for the First Respondent: | Ms A Nanson of Australian Government Solicitor |
ORDERS
The matter be transferred to the Federal Court of Australia.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2674 of 2007
| DANIEL FRANK CHARLIE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Daniel Frank Charlie was born on 6 October 1973 on the island of Daru in what was then the territory of Papua New Guinea. Papua New Guinea was a territory of Australia up until 16 September 1975. From available records, it appears that Mr Charlie has at least two grandparents of indigenous Papua New Guinean descent. He arrived in Australia in November 1976 and was subsequently granted resident status on 2 September 1981. There is no record to suggest that Mr Charlie help permanent resident status on 16 September 1975 or has acquired Australian citizenship by grant or by any other means. An application for Australian citizenship was refused on 7 April 1998.
An opinion prepared by the Manager, Citizenship Section of Family Residence and Citizenship Branch of the then Department of Immigration and Multicultural Affairs on 23 March 2003 states that Mr Charlie does not hold Australian citizenship. That status was lost on 16 September 1975 when Papua New Guinea became independent.
A Statement of Reasons for Cancellation of Visa Under s.501(2) of the Migration Act 1958 (Cth) (“the Act”) was executed by the Minister for Immigration and Citizenship on 6 August 2007, cancelling Mr Charlie’s Absorbed Person visa.
Section 476(2)(c) of the Act limits the jurisdiction of the Federal Magistrates Court of Australia in respect of decisions made personally by the Minister for Immigration under s.501.
In Fisher v Minister for Immigration and Citizenship [2007] FCA 591, Stone J considered the jurisdiction of the Federal Magistrates Court to transfer a matter over which it has no jurisdiction to the Federal Court of Australia.
Conclusion
In the circumstances, I believe that the issues for judicial review are not within the jurisdiction of the Federal Magistrates Court but with the Federal Court and that this matter should be transferred. I therefore make that order.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 26 September 2007
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