NAJT v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCAFC 420

FEDERAL COURT OF AUSTRALIA

NAJT v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCAFC 420

NAJT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 755 of 2002

WILCOX, SPENDER and RYAN JJ
5 DECEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 755 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAJT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX, SPENDER and RYAN JJ
DATE OF ORDER:	5 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the costs of the respondent, 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	N 755 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAJT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX, SPENDER and RYAN JJ
DATE:	5 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal against a decision of Madgwick J given on 11 July 2002.  Madgwick J upheld an objection to competency filed by the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs. 

2. The basis for his Honour’s decision was that the Court had no jurisdiction because of the terms of s 476(2) of the Migration Act 1958. That subsection says:

   “(2)Despite any other law (including … sections 39B … of the Judiciary Act 1903, …), the Federal Court do[es] not have any jurisdiction in respect of a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under … section 48B [or section 417].”

3. In the present case, the complaint is that the Minister should have considered the exercise of his power under s 48B or s 417. It seems to us clear that s 476(2) covers the situation.

4. The point is taken in the notice of appeal, although in an elliptic way, that ss 474, 475 and 476 of the Act are not constitutionally valid.  Section 78B notices were given to the Attorneys-General in relation to this point before the hearing at first instance.  No Attorney-General sought to intervene.  In this Court, the issue of the constitutional validity of those sections is concluded by the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.

5. No other point of law is raised.  In the circumstances the appeal must be dismissed.

6. The order of the Court will be that the appeal be dismissed and the appellant pay the costs of the respondent.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             5 December 2002

The appellant appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 2002