NAAX v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 313
•24 MARCH 2003
FEDERAL COURT OF AUSTRALIA
NAAX v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 313NAAX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1388 of 2002
WILCOX J
24 MARCH 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1388 of 2002
BETWEEN:
NAAX
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
WILCOX J
DATE OF ORDER:
24 MARCH 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2.The appellant pay the costs of the respondent, Minister for Immigration & Multicultural & 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
N 1388 of 2002
BETWEEN:
NAAX
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
WILCOX J
DATE:
24 MARCH 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX J:
This is an appeal against a decision of Federal Magistrate Driver dismissing an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) in connection with an application for a bridging visa. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976, the Chief Justice directed that the appeal be heard by a single judge. Consequently, I am exercising the appellate jurisdiction of the Court in hearing this case.
The appellant appeared today before me in person, assisted by an interpreter. She handed to me a document entitled “Submissions by the Appellant”, which set out what were said to be eight reasons for challenging the decision of the Magistrate. The Magistrate is called “The Judge” in those reasons. It appears this document was provided to the appellant by Mr George Fonua, who has advised many Tongan nationals in regard to migration matters. Unfortunately, Mr Fonua has no real understanding of the relevant law. This has caused many people to put submissions before the Court that have no substance whatsoever. That is what has occurred in the present case.
The first of the eight reasons is expressed in these terms:
“That the Judge erred in law and [sic] findings [sic] that the application involved s 78B Judiciary Act 1903 [sic].”
In fact, the Magistrate expressed no view about s 78B of the Judiciary Act. He merely noted that the appellant had issued a notice under that section purporting to raise a constitutional issue. There is no way in which this could be a basis for challenging the decision of the Magistrate or of the Tribunal.
The second reason set out in the document is in these terms:
“That the Judge erred in law [sic] that the decision by the delegate and affirmed by the MRT (Tribunal) was done in bad faith.”
The Magistrate dealt with an argument to this effect. In par 9 of his reasons for decision, the Magistrate said:
“The applicant asserts that the decision by the delegate to refuse a bridging visa was done in bad faith. This Court is of course not reviewing the decision of the delegate, but the decision of the MRT. If bad faith is being asserted against the decision of the MRT then that allegation could not be sustained. Nothing has been put to me today by the applicant in support of the allegations of bad faith.”
Nothing has been put before me to indicate that the Tribunal acted in bad faith. There is no substance in this ground.
The third ground is stated in this way:
“The judge erred in findings that the Court cannot overturn the visa related decision pursuant to section 474 of the Act.
I refer to ground 3 of the Notice of Appeal.”
Ground 3 sets out the following exceptions to the rule thought to have been laid down by s 474 of the Act:
“· The decision maker was not acting in good faith in making the decision;
·The decision is not reasonably capable of reference to The [sic] decision making power given to the decision-maker;
·The decision exceeded the limits set out in the Commonwealth Constitution.”
The Magistrate referred to s 474 in par 10 of his reasons when he said this:
“In the circumstances, it is clear that I must dismiss this application. The only effect of the privative clause in s.474 of the Migration Act in these proceedings is to confirm what is already the inevitable outcome of the application. Therefore, I will dismiss the application.”
The decision of the Magistrate was given prior to the decision of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 31 195 ALR 24 (“Plaintiff S157”). That decision authoritatively determined the way in which s 474 should be understood and applied. In essence, the High Court held that, notwithstanding the apparent literal meaning of the section, the Court is able to set aside a decision that is founded upon jurisdictional error. This is because, on its proper construction, the section does not apply to an invalid decision.
Notwithstanding that the Magistrate’s decision pre-dated the decision of the High Court in Plaintiff S157, it appears to me the correctness of the Magistrate’s decision remains unaffected. As par 10 of the Magistrate's reasons indicates,effectively he held no error was demonstrated. That is to say, there was no jurisdictional error and s 474 merely confirmed what he described as “the inevitable outcome of the application”.
I agree with this. I do not think s 474 has any significance in the present case.
The remaining five matters raised in the submission constitute contentions that the legislation, or parts of it, is unconstitutional. The High Court dealt with the constitutionality of ss 474, 475 and 476 of the Migration Act 1958 in its decision in Plaintiff S157. This is the matter specifically raised by ground 6. The High Court having held these sections are constitutionally valid, it is obvious that ground 6 cannot succeed. No argument has been advanced, or reason given for the contention, that the legislation is otherwise unconstitutional. I see no basis for any such contention.
Ground 4 refers to legislation unreasonably interfering with the judicial power of the Commonwealth. That matter was dealt with by the High Court in Plaintiff S157. Ground 5 alleges it is beyond the power of the Commonwealth, under s 51 of the Constitution “to enact legislation in the form of the Migration Act which has [sic] unjust effect on individuals and citizens of Australia”. I see no basis for that submission. By its very nature, legislation that falls within s 51, perhaps in relation to all or most of the placita, will have an effect that individuals may regard as unjust. It is for the Parliament to determine the policy to be embodied in legislation.
Ground 7 asserts it is unconstitutional for the Commonwealth to enact legislation that prevents courts from reviewing administrative decisions which has the effect of removing review rights for all individuals and citizens in migration matters. I think this is simply a restatement of ground 4. It was dealt with by the High Court in Plaintiff S157.
Ground 8 asserts it is unconstitutional to enact provisions under the Migration Act which abolish the rights to have a poor decision checked by an independent umpire according to law. This seems to be a further repetition of the earlier ground.
In my opinion there is no substance in any of the grounds that have been advanced.
I greatly regret that the applicant did not avail herself of the opportunity, between the date of the directions hearing and today, to consider whether she had any proper case which she could advance to the Court, and thus reduce the costs which are likely to have been incurred.
The order of the Court is that the appeal is dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate:
Dated: 9 April 2003
The Appellant appeared in person. Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 March 2003
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