Funaki v Minister for Immigration & Multicultural Affairs

[2000] FCA 1698

FEDERAL COURT OF AUSTRALIA

Funaki v Minister for Immigration & Multicultural Affairs [2000] FCA 1698

MIGRATION - appeal - whether Court erred in dismissing motion to remove constitutional issues to the High Court - whether Court had jurisdiction to do so - whether relevant part of judgment interlocutory 

TEVITA FUNAKI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 875 OF 2000

RD NICHOLSON, FINKELSTEIN & HELY JJ
17 NOVEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 875 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	TEVITA FUNAKI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	RD NICHOLSON, FINKELSTEIN & HELY
DATE OF ORDER:	17 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent's costs of this motion and of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 875 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	TEVITA FUNAKI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	RD NICHOLSON, FINKELSTEIN & HELY
DATE:	17 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

RD NICHOLSON J:

1. The appellant brings a Notice of Appeal, stated to be an appeal from the whole of the judgment of Emmett J given on 26 July 2000 in which his Honour dismissed a motion to remove constitutional issues to the High Court under s 78B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). It is accepted on behalf of the appellant that the Notice of Appeal is directed only to that portion of the reasons for judgment of his Honour which address the motion for removal of constitutional issues to the High Court. Consequently, the Notice of Appeal is not directed to that portion of his Honour's reasons finding that the application for an order of review under ss 475 and 476 of the Migration Act 1958 (Cth) was incompetent.

2. In respect of the Notice of Appeal as so understood, the respondent has brought a Notice of Motion in reliance on Order 52 rule 18, and alternatively and additionally, on Order 20 rule 2 seeking orders that the appeal be dismissed as incompetent and alternatively for other reasons.

3. The appellant contends that the Federal Court has power to remove the constitutional issues, referred to in the Notice of Appeal, pursuant to s 40 of the Judiciary Act. However, it is apparent from a plain reading of that section that the power which arises there is one in the High Court itself, upon application of a party for sufficient cause shown. It is not a power in this Court. There is no other source of power in this Court to refer constitutional issues to the High Court and consequently this Court lacks any authority to entertain an appeal on the limited grounds raised.

4. Reliance is also placed upon s 78B of the Judiciary Act on behalf of the appellant. That, however, is not a source of power to the end which the appellant seeks to achieve. It is a provision requiring notice to be given to Attorneys-General and there is evidence before us that such notice was given in respect of this appeal. The responses received are to the effect that none of the Attorneys-General so responding seek to intervene in the proceeding before the Federal Court.

5. On behalf of the respondent it was contended that the part of his Honour's judgment to which the appeal is directed is interlocutory in character and that as no appeal lies as of right from an interlocutory judgment, (see s 24(1A) of the Federal Court of Australia Act1976 (Cth)) no leave to appeal having been sought should be given by this Court. It is unnecessary to characterise that portion of his Honour's judgment as interlocutory to arrive at the conclusion that this appeal is incompetent. It is sufficient, in my view, that reliance is placed upon the matters previously referred to in relation to the case raised by the appellant in support of the appeal.

6. For these reasons I consider that the appeal is incompetent and for that reason should be dismissed.

   FINKELSTEIN J:

7. I agree in the reasons given by Nicholson J and with the order that he proposes.

   HELY J:

8. I also agree, but I would add that, in my view, the appellant is not entitled to appeal from the decision of Emmett J on the removal motion without the leave of this Court and that that leave has not been sought.  If it were sought, for my part, I would not give it.  The appeal should be dismissed with costs.

RD NICHOLSON J:

1. The Court will order firstly that the appeal be dismissed and secondly that the appellant pay the respondent’s costs of this motion and of the appeal.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices RD Nicholson, Finkelstein & Hely.

Associate:

Dated:             23 November 2000

Mr Fonua appeared on behalf of the applicant with the leave of the court

Solicitor for the respondent:	Mr A Markus Australian Government Solicitor
Date of Hearing:	17 November 2000
Date of Judgment:	17 November 2000