FEDERAL COURT OF AUSTRALIA
Kalm v Administrative Appeals Tribunal [2013] FCA 890
Citation: Kalm v Administrative Appeals Tribunal [2013] FCA 890 Appeal from: Administrative Appeals Tribunal [2013] AATA 87 Parties: REIGO KALM v ADMINISTRATIVE APPEALS TRIBUNAL and MINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS AND CITIZENSHIP File number: VID 290 of 2013 Judge: JESSUP J Date of judgment: 3 September 2013 Catchwords: MIGRATION – application for mandamus and certiorari under s 39B of Judiciary Act 1903 (Cth) – whether reference to “minor children” in Ministerial Direction No 55 includes unborn children Legislation: Migration Act 1958 (Cth) ss 476A, 501
Judiciary Act 1903 (Cth) s 39B
United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1557 UNTS 3 (entered into force 16 January 1991)
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)Cases cited: SZRLY v Minister for Immigration [2012] FCA 1459 Date of hearing: 8 August 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr G Mukherji Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: The first respondent did not appear Counsel for the Second Respondent: Mr G Hill Solicitor for the Second Respondent: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 290 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: REIGO KALM
ApplicantAND: ADMINISTRATIVE APPEALS TRIBUNAL
First RespondentMINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS AND CITIZENSHIP
Second Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
3 SEPTEMBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the costs of the second respondent.
3.The operation of the previous order be stayed for 14 days, during which period the parties have liberty to apply.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 290 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: REIGO KALM
ApplicantAND: ADMINISTRATIVE APPEALS TRIBUNAL
First RespondentMINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS AND CITIZENSHIP
Second Respondent
JUDGE:
JESSUP J
DATE:
3 SEPTEMBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application for mandamus and certiorari, pursuant to s 39B of the Judiciary Act 1903 (Cth), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 February 2013. In that decision, the Tribunal affirmed a decision made on 14 March 2012 by a delegate of the respondent Minister, in which the applicant was refused a working holiday visa. That refusal was done, and the Tribunal’s decision was made, under s 501(1) of the Migration Act 1958 (Cth) (“the Act”). The decision of the Tribunal was a “privative clause decision” within the meaning of Part 8 of the Act, the presently relevant aspect of the Court’s jurisdiction being preserved by s 476A(1)(b) of the Act.
The applicant…
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- Case
- [2013] FCA 890
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were primarily concerned with statutory interpretation. The court had to determine whether the term "minor children" in Ministerial Direction No 55 encompassed unborn children. This interpretation had significant implications for Kalm's application for judicial review, as the inclusion of unborn children could potentially alter the outcome of the case. The court also needed to consider whether the AAT had correctly interpreted the Ministerial Direction and whether there were any grounds for the grant of mandamus or certiorari.
In its reasoning, the court examined the plain meaning of the term "minor children" and considered the context in which it was used in Ministerial Direction No 55. The court noted that the term "minor children" typically refers to children who have not yet reached the age of majority. The court further observed that there was no explicit reference to unborn children in the Ministerial Direction, and that such an interpretation would extend the meaning of the term beyond its ordinary usage. Consequently, the court held that the reference to "minor children" did not include unborn children. The court also found that the AAT's interpretation of the Ministerial Direction was reasonable and that there were no grounds for the grant of mandamus or certiorari.
The Federal Court dismissed Kalm's application and ordered that Kalm pay the costs of the second respondent, the Administrative Appeals Tribunal. The court granted a stay of operation of the previous order for 14 days, during which period the parties were permitted to apply for further relief. This decision underscores the importance of interpreting statutory terms in their ordinary and natural meaning, and highlights the limitations of judicial review in cases where the decision-maker has acted within the scope of their statutory powers.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the costs of the second respondent.
3. The operation of the previous order be stayed for 14 days, during which period the parties have liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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