Haroon v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1345
•12 OCTOBER 2004
FEDERAL COURT OF AUSTRALIA
Haroon v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1345MOHAMMED HAROON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 587 of 2004
WILCOX ACJ
12 OCTOBER 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 587 of 2004
BETWEEN:
MOHAMMED HAROON
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
WILCOX ACJ
DATE OF ORDER:
12 OCTOBER 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to Order 51A subrule 5(2) of the Federal Court Rules, Order 51A subrule 5(1) not apply to this application.
2. The application for an order nisi be refused.
3.The applicant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.
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
NSD 587 of 2004
BETWEEN:
MOHAMMED HAROON
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
WILCOX ACJ
DATE:
12 OCTOBER 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX ACJ:
This matter was remitted to this Court by the High Court of Australia. No order nisi was granted by the High Court. That was a matter left open to be considered in this Court.
The applicant applied to the High Court for prerogative relief. The application was made after the expiry of the time limit specified in the High Court Rules. It is open to a judge of this Court to exercise a discretion to extend that time, but the fact that it is necessary to extend the time is a matter to be taken into account in considering the application for an order nisi in relation to prerogative relief.
Of far more significance is the fact that an application was previously made to the Federal Magistrates Court for review of the relevant tribunal decision; that is, the decision of the Migration Review Tribunal (‘the Tribunal’), dated 26 September 2002, refusing to grant to him and his wife Business Skills (Residence) (Class BH) subclass 845 visas.
That application was dismissed on 23 April 2003. An appeal was brought to this Court and determined by Moore J on 8 August 2003. I am informed by Mr G Johnson, counsel for the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), that the points that were argued today by Mr M Newman, solicitor for the applicant, were matters put to Moore J, if not also to the magistrate. Whether or not any new material was added by Mr Newman today is not important. The point is that the question whether the Tribunal's decision exhibits jurisdictional error has already been dealt with on a final basis by a magistrate and, on appeal, by this Court. It would not be appropriate to exercise the discretion given to the Court in such a manner as to permit a re-opening of that question, particularly as this involves an extension of time.
Mr Newman put to me arguments as to why the Court should intervene, notwithstanding the matters to which I have referred. He criticised the findings of the Tribunal in regard to the applicant's compliance with the Migration Regulations 1994 (Cth). I understand the criticisms but I am unable to form any view as to whether they are justified. The reason for this is that the Tribunal not only had documents, which are contained in the Court book of the proceeding before the magistrate, which has been tendered before me, but also had oral evidence from both the applicant and his wife. That evidence is not before the Court. I have no idea of its content.
In any event, the Tribunal's conclusions on these matters, whether they were right or wrong, were conclusions of fact. A mere incorrect finding of fact does not constitute jurisdictional error. In the result, the application for further review constituted by the current proceeding is hopeless.
During the course of argument, Mr Newman handed to me a document headed ‘Proposed Amended Application’. I understand that he wishes this document to be treated as setting out the alleged errors of law. It is not clear that either of the matters there raised is fairly arguable. In any event, those matters could have been – if they were not – raised in the earlier proceedings before the magistrate and Moore J.
For the reasons I have given, I am of the view that the Court should not grant an order nisi. Order 51A subrule 5(1) of the Federal Court Rules establishes a prima facie procedure that, when the Court deals with a matter remitted from the High Court which would require an order nisi, the Court will, at the same time as considering the application for an order nisi, consider whether, if the order nisi be granted, it should be made absolute. However, this procedure is subject to any contrary order of a judge: see Order 51A subrule 5(2). In my view, it is appropriate to make a contrary order in this case.
The appropriate order is that the application for an order nisi be refused. The applicant must pay the respondent’s costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Wilcox. Associate:
Dated: 28 October 2004
Solicitor for the Applicant: Mr M Newman Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Clayton Utz Date of Hearing: 12 October 2004 Date of Judgment: 12 October 2004
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