Charlie v Minister for Immigration

[2007] FMCA 1628

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

1. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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

1. 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