Fernando v Minister for Immigration - [2007] FMCA 724

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FERNANDO v MINISTER FOR IMMIGRATION

[2007] FMCA 724

MIGRATION – Alleged unlawful arrest and detention – application for compensation for unlawful detention.

JURISDICTION – Whether Federal Magistrates Court can determine whether a matter falls within its jurisdiction – Court has jurisdiction to determine challenge to its jurisdiction – jurisdiction to hear application for compensation for unlawful detention – no jurisdiction to hear application.

Acts Interpretation Act, 1901 (Cth), s.15C
Constitution, ss.75, 76, 77
Federal Magistrates Act, 1999 (Cth), ss.10, 18
Federal Magistrates Court Rules, 2001 (Cth), rr.12.03, 44.15(1), sch 1, part 2, cl.1(b).
Judiciary Act, 1903 (Cth), s.39B(1A)(c)
Migration Act, 1958 (Cth), ss.189, 476, 501

FEDFA v BHP Co Ltd (1911) 12 CLR 398
Fernando v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 975

Fernando v The Queen [2000] WASCA 289
Goldie v Commonwealth of Australia & Ors (2000) 180 ALR 609; [2000] FCA 1873
Goldie v Commonwealth of Australia & Ors (2002) 188 ALR 708; [2002] FCA 433
Goldie v Commonwealth of Australia & Ors (No.2) [2004] FCA 156
Khatri v Price (1999) 95 FCR 287
Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
Re Boulton; Ex parte Construction, Forestry, Mining & Engineering Union (1998) 73 ALJR 129.
Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48
Taylor v CGU Insurance Limited [2005] FMCA 1073

Applicant:

WANNAKUWATTEMITIWADUGE
LLOYD NIRMALEEN FERNANDO

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number

PEG 43 OF 2007

Judgment of:

Lucev FM

Hearing date:

15 May 2007

Date of Last Submission:

15 May 2007

Delivered at:

Perth

Delivered on:

18 May 2007

REPRESENTATION

Applicant:

Wannakuwattemitiwaduge Lloyd Nirmaleen Fernando in person

Counsel for the Respondent:

Mr A Gerrard

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed for want of jurisdiction.
The Applicant to pay the Respondent costs in the sum of $2500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 43 of 2007

WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Essential background facts

The Applicant is a citizen of Sri Lanka.
The Applicant came to Australia in 1989. At that time he had a student visa. He has remained in Australia since 1989. The Applicant applied for various visas, including a protection visa, without success, during the period from 1989 to 1995. In 1995 the Applicant was granted a BF-154 visa.
On 31 July 1998 the Applicant was convicted after a trial in the District Court of Western Australia on three charges of sexual penetration of a female without her consent: Fernando v The Queen [2000] WASCA 289 at para 2 per Murray J (“Fernando Criminal Appeal”). The Applicant was sentenced to eight years imprisonment with eligibility for parole: Fernando Criminal Appeal at para 64 per Murray J. Applications for leave to appeal against conviction and sentence were refused: Fernando Criminal Appeal at para 70 per Murray J, para 71 per Parker J,…

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.

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Details

Case: [2007] FMCA 724
Decision Date: 18 May 2007

CaseChat Overview and Summary

Fernando filed an application against the Minister for Immigration, seeking compensation for alleged unlawful arrest and detention. The Federal Magistrates Court was tasked with determining the matter. The primary legal issue before the court was whether it had the jurisdiction to hear the application for compensation. Additionally, the court had to decide if it had the authority to determine whether a matter fell within its jurisdiction.

The court held that while it could determine if it had jurisdiction over the matter, it did not have the jurisdiction to hear the application for compensation. This conclusion was reached after examining the relevant legislative provisions and case law. Consequently, the court found that it could not proceed with the application on its merits. The court further ordered that the application be dismissed for want of jurisdiction and that the applicant pay the respondent's costs in the sum of $2,500.

Orders

Orders of the court

The application be dismissed for want of jurisdiction.

The Applicant to pay the Respondent costs in the sum of $2500.

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

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