In the Matter of an Application for Writs of Mandamus and a Writ of Prohibition in High Court Proceedings S39 of 1996, and Bedlington, Jennifer J and Anor and Ex Parte: Chong, Ana Cecilia Enciso - [1997] FCA 1416

FEDERAL COURT OF AUSTRALIA

Administrative law - relief to be granted on matter remitted from the High Court - whether Court should declare that the Minister for Immigration determine personally whether to consider an application for the exercise of the power conferred by s 48B(1) of the Migration Act - Minister’s administration of the Act - statutory construction of ss 48A and B of the Act.

Migration Act 1958 - s 48B(1) and (6)

Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 - cons.

On remittal from the High Court of Australia

IN THE MATTER of an Application for Writs of Mandamus and a Writ of Prohibition in High Court proceedings S39 of 1996, JENNIFER J BEDLINGTON AND THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE: ANA CECILIA ENCISO CHONG

NG 425 OF 1996

JUDGE:        BEAUMONT J
PLACE:        SYDNEY
DATE:          15 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 425 of 1996

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

IN THE MATTER of an Application For Writs of Mandamus and a Writ of Prohibition in High Court proceedings S39 of 1996, JENNIFER J BEDLINGTON
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENT

EX PARTE:

ANA CECILIA ENCISO CHONG
PROSECUTOR

JUDGE:

BEAUMONT J

DATE OF ORDER:

15 DECEMBER 1997

WHERE MADE:

SYDNEY

ORDER:

Declare that, on the true construction of the Migration Act 1958, the second respondent has no duty to consider whether to exercise the power under s 48B(1), except where the Minister thinks that it is in the public interest to do so.

Costs reserved.

Grant leave to 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

NG 425 of 1996

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

IN THE MATTER of an Application For Writs of Mandamus and a Writ of Prohibition in High Court proceedings S39 of 1996,
JENNIFER J BEDLINGTON
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENT

EX PARTE:

ANA CECILIA ENCISO CHONG
PROSECUTOR

JUDGE:

BEAUMONT J

DATE:

15 DECEMBER 1997

PLACE:

SYDNEY

REASONS FOR JUDGMENT (No.2)
(on the relief to be granted)

BEAUMONT J:

Since delivery of my reasons dated 9 September 1997, the parties have now made submissions on the question of the relief, if any, now to be granted.

THE PROSECUTOR’S PRESENT CLAIMS FOR RELIEF
The prosecutor now seeks a declaration that, upon its proper construction, s 48B(1) of the Migration Act 1958 (“the Act”) requires that the Minister personally determine whether to consider an application for the exercise of the power to determine that s 48A of the Act does not apply. The prosecutor accepts that the making of any order absolute of mandamus to this effect must await the judgment of the High Court on grounds (ii), (iii) and (iv) in the application for an order nisi (cf. Thambythurai v Minister for…

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

AGLC: In the Matter of an Application for Writs of Mandamus and a Writ of Prohibition in High Court Proceedings S39 of 1996, and Bedlington, Jennifer J and Anor and Ex Parte: Chong, Ana Cecilia Enciso [1997] FCA 1416
Case: [1997] FCA 1416
Decision Date: 15 DECEMBER 1997

CaseChat Overview and Summary

The case before the Federal Court of Australia involves an application for writs of mandamus and prohibition, filed by Ana Cecilia Enciso Chong, against Jennifer J Bedlington and the Minister for Immigration and Multicultural Affairs. The dispute revolves around the interpretation and application of sections 48A and 48B of the Migration Act 1958, particularly regarding the Minister’s duty to consider whether to exercise the power to determine if section 48A does not apply in specific circumstances. This case is on remittal from the High Court, which had previously considered the matter. The primary legal issue before the court was whether the Minister for Immigration and Multicultural Affairs had a duty to personally determine whether to consider an application for the exercise of the power conferred by section 48B(1) of the Migration Act. The court also had to consider the statutory construction of sections 48A and 48B of the Act.

In delivering the judgment, Justice Beaumont held that the provisions of section 48B must be construed as a whole rather than in isolation, resolving the apparent contradiction by reading down the general language of section 48B(6). The court found that section 48B(6) should be subject to an implied qualification that its provisions do not apply in cases where the Minister believes it is in the public interest to determine that section 48A does not apply. The court concluded that there was no duty on the Minister to consider exercising the power under section 48B(1) unless the Minister thought it was in the public interest to do so. The court also determined that no further relief was necessary and reserved costs for review upon conclusion of the High Court proceedings. Leave to appeal to the Full Court was granted due to the novelty and importance of the points argued.

The court made the following orders: it declared that, on the true construction of the Migration Act 1958, the Minister for Immigration and Multicultural Affairs has no duty to consider whether to exercise the power under section 48B(1), except where the Minister thinks that it is in the public interest to do so. The court also reserved costs and granted leave to appeal.

Orders