CONSTITUTIONAL LAW - validity of provisions relating to offshore entry persons - whether open to argument that provisions not supported by constitutional head of power
MIGRATION - ministerial declaration - validity of declaration - whether open to argument that declaration must satisfy statutory conditions
MIGRATION - provisions relating to offshore entry persons - whether open to argument that provisions subject to guardianship obligations
PROCEDURE - application for leave to amend statement of claim - whether argument on issues raised precluded by law from argument
PROCEDURE - nature of remittal by High Court - remittal to Federal Court - whether Federal Court has jurisdiction to grant leave to amend claim upon remittal - whether amendments can include claims based on facts occurring since proceedings instituted - whether precluded by provisions relating to offshore entry and transitory persons - effect of Federal Court Rules
[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
Plaintiff P1/2003 v Ruddock [2007] FCA 65
Case
[2007] FCA 65
Decision Date
CaseChat Overview and Summary
The case of Plaintiff P1/2003 v Ruddock involved a challenge to the constitutionality of section 198A of a relevant statute. The plaintiff argued that the section was beyond the Commonwealth's legislative powers as it authorised the Minister to make a declaration regarding the protection provided by another country to asylum seekers and refugees, and it allowed officers to forcibly remove an alien from Australia and take them to another country, which was not their country of origin. The defendant objected to the plaintiff's argument, stating that it did not manifest a claim of sufficient seriousness to support the application for interlocutory intervention.
The legal issue in this case was whether section 198A was ultra vires the Commonwealth, in other words, if it was beyond the Commonwealth's legislative powers. The court had to determine if the section was authorised by the legislative powers conferred on the Commonwealth Parliament by sections 51(xix) and 51(xxvii) of the Constitution, which empower the Parliament to make laws with respect to aliens and immigration.
The court found that the plaintiff's argument had developed further compared to previous claims, but it was still not considered to be a claim of sufficient seriousness to support the application for interlocutory intervention. The court relied on previous cases where similar arguments had been made and dismissed. The court left open the possibility that the argument could become more substantial with further development. The court decided that section 198A was not ultra vires the Commonwealth and did not exceed the legislative powers conferred by the Constitution.
The court ordered the parties to confer on the appropriate form of orders to give effect to the reasons and to either jointly file consent orders or a draft of the orders sought by each party together with short written submissions within 21 days. The costs were reserved.
Orders
Orders of the court
1. Within 14 days the parties confer on the appropriate form of orders to give effect to the attached reasons and within 21 days either jointly file consent orders or a draft of the orders sought by each together with short written submissions.
2. Costs reserved.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
NICHOLSON J
Paragraph [59] is relevant to [88.3] and the related pleadings of psychiatric reports. It is not objectionable within the tests in FCR O 11 r 16(b).CONCLUSION The parties, as requested, will be given the opportunity to consider these reasons and to bring draft orders appropriate in the circumstances.
Ratio Decidendi
Legal Principle Established
Established by:
NICHOLSON J
Section 198A reads:‘(1)An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).(2)The power under subsection (1) includes the power to do any of the following things within or outside Australia:(a)place the person on a vehicle or vessel;(b)restrain the person on a vehicle or vessel;(c)remove the person from a vehicle or vessel;(d)use such force as is necessary and reasonable.(3)The Minister may:(a)declare in writing that a specified country:(i)provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and(ii)provides protection for persons seeking asylum, pending determination of their refugee status; and(iii)provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and(iv)meets relevant human rights standards in providing that protection; and(b)in writing, revoke a declaration made under paragraph (a).(4)An offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)).(5)In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.’ Paragraph [7] of the proposed substituted statement of claim addresses the section in the following terms:‘Section 198A is ultra vires the Commonwealth. It was purportedly enacted pursuant to the legislative power conferred on the Commonwealth Parliament (the Parliament) by ss 51(xix) and 51(xxvii) of the Constitution which empower the Parliament to make laws with respect to aliens and immigration. Those powers did not and do not enable the Parliament to make a law, such as s 198A, authorising a Minister of the Commonwealth to make a declaration as to the alleged protection which a country other than Australia (the other country) provides to persons who are seeking asylum or have been given refugee status, authorising officers of the first defendant to remove an alien from Australia and cause him or her to be taken by force to the other country, where the other country is not the alien’s country of origin, with the intention and for the purpose of the alien being detained in the other country pursuant to an agreement between the first defendant and the other country.’ The defendant objects to the whole paragraph. An argument to similar effect in preceding claims has not been regarded as manifesting a claim of sufficient seriousness to support the application for interlocutory intervention: P1 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029 (French J) at [47]-[50] (P1 of 2003 FCA 1029); P1 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1370 (RD Nicholson J) at [11] (P1 of 2003 FCA 1370). In reaching his view French J said that the argument made before him was a pale shadow of a constitutional argument but he left open the prospect that it could solidify into something of substance with further development. The plaintiff has now further developed the argument which is made before the Court on this application.Reach of constitutional power