GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
PLAINTIFF S157/2002 PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA DEFENDANT
Plaintiff S157/2002 v Commonwealth of Australia
[2003] HCA 2
4 February 2003 S157/2002
ORDER
The questions reserved for consideration by the Full Court are answered as follows:
Question 1
Is section 486A of the Migration Act 1958 (Cth) invalid in respect of an application by the plaintiff to the High Court of Australia for relief under section 75(v) of the Constitution?
Answer
Upon its proper construction, s 486A does not apply to the proceedings the plaintiff would initiate. No question of the validity of s 486A arises in that regard.
Question 2
Is section 474 of the Migration Act 1958 (Cth) invalid in respect of an application by the plaintiff to the High Court of Australia for relief under section 75(v) of the Constitution?
Answer
Section 474 would be invalid if, on its proper construction, it attempted to oust the jurisdiction conferred on the High Court by s 75(v) of the Constitution. However, on its proper construction, it does not attempt to do so. Section 474 is valid but does not apply to the proceedings the plaintiff would initiate.
Question 3
By whom should the costs of the proceeding in this Honourable Court be borne?
Answer
The Commonwealth should pay 75 per cent of the costs of the plaintiff of the proceeding.
Representation:
D J Colquhoun-Kerr with G J Williams for the plaintiff (instructed by Parish Patience Immigration Lawyers)
D M J Bennett QC, Solicitor-General of the Commonwealth with N J Williams SC, S B Lloyd and G R Kennett for the defendant (instructed by Australian Government Solicitor)
Intervener:
B M Selway QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for the State of South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Plaintiff S157/2002 v Commonwealth of Australia
Statutes – Construction – Privative clauses – Whether the decision by the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing the plaintiff's application for a protection visa is a "privative clause decision" within s 474 of the Migration Act1958 (Cth) ("the Act") – Whether s 474(1) of the Act is construed as ousting judicial review by the High Court.
Constitutional Law (Cth) – Whether s 474 and s 486A of the Act are invalid – Whether s 474(1)(c) of the Act is directly inconsistent with s 75 of the Constitution – Whether s 474(1)(a) and (b) of the Act are inseparable from s 474(1)(c) of the Act and are consequently invalid – Whether s 486A of the Act will apply to a "decision" when there has been jurisdictional error – Whether s 486A of the Act is a law incidental…
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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AGLC
Plaintiff S157/2002 v Commonwealth [2003] HCA 2
Case
[2003] HCA 2
Decision Date
CaseChat Overview and Summary
The plaintiff, identified only as S157/2002, commenced proceedings in the High Court of Australia against the Commonwealth of Australia. The dispute concerned the constitutional validity of sections 474 and 486A of the *Migration Act 1958* (Cth), which the plaintiff contended would prevent him from seeking judicial review of a decision by the Refugee Review Tribunal affirming the refusal of his protection visa application. The plaintiff sought relief under section 75(v) of the Constitution, alleging the Tribunal's decision was made in breach of natural justice, constituting jurisdictional error.
The High Court was required to determine whether sections 474 and 486A of the *Migration Act* were invalid, specifically in relation to an application for judicial review under section 75(v) of the Constitution. The central legal issues were whether section 474, a privative clause, was invalid as an attempt to oust the High Court's constitutional jurisdiction, and whether section 486A, which imposes time limits on applications for certain remedies, was constitutionally valid and applicable in circumstances of jurisdictional error.
The Court reasoned that section 474 of the *Migration Act*, on its proper construction, did not attempt to oust the jurisdiction conferred on the High Court by section 75(v) of the Constitution. Therefore, section 474 was considered valid, although it was found not to apply to the specific proceedings the plaintiff would initiate. Similarly, the Court determined that section 486A, as properly construed, did not apply to the proceedings the plaintiff would initiate, meaning no question of its validity arose in that context.
The Court answered the questions reserved in the case stated. It held that section 486A did not apply to the plaintiff's intended proceedings, thus its validity did not arise. Regarding section 474, the Court found it to be valid as it did not oust the High Court's constitutional jurisdiction, and it also did not apply to the plaintiff's intended proceedings. The Commonwealth was ordered to pay 75 per cent of the plaintiff's costs.
Orders
Orders of the court
The questions reserved for consideration by the Full Court are answered as follows:
Question 1
Is section 486A of the Migration Act 1958 (Cth) invalid in respect of an application by the plaintiff to the High Court of Australia for relief under section 75(v) of the Constitution?
Answer
Upon its proper construction, s 486A does not apply to the proceedings the plaintiff would initiate. No question of the validity of s 486A arises in that regard.
Question 2
Is section 474 of the Migration Act 1958 (Cth) invalid in respect of an application by the plaintiff to the High Court of Australia for relief under section 75(v) of the Constitution?
Answer
Section 474 would be invalid if, on its proper construction, it attempted to oust the jurisdiction conferred on the High Court by s 75(v) of the Constitution. However, on its proper construction, it does not attempt to do so. Section 474 is valid but does not apply to the proceedings the plaintiff would initiate.
Question 3
By whom should the costs of the proceeding in this Honourable Court be borne?
Answer
The Commonwealth should pay 75 per cent of the costs of the plaintiff of the proceeding.
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
GLEESON CJ
HUGH, GUMMOW, KIRBY AND HAYNE JJ
It is to be noted that s 474 does not apply only to decisions that have been made. It also covers a failure or refusal to make a decision, conduct preparatory to the making of a decision, and other acts or omissions which may not involve something that is a purported decision, but not a decision under the Act. The operation of s 486A in such a case does not arise for decision. In the present case, s 486A will not operate in relation to a purported decision made in breach of the requirements of natural justice.Conclusion I would answer the questions in the case stated in the manner proposed in the joint judgment. GAUDRON, Mc The plaintiff commenced proceedings in this Court by writ of summons endorsed with his statement of claim. He contends that certain provisions of the Migration Act 1958 (Cth) ("the Act") are invalid. The provisions in question bear on his right to seek judicial review of a decision of the Refugee Review Tribunal ("the decision") affirming an earlier decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing his application for a protection visa. By reason that he brings these proceedings in his capacity as a person who applied for a protection visa under s 36 of the Act, the plaintiff cannot be named by this Court[41].[41]Section 91X of the Act relevantly provides:"(1)This section applies to a proceeding before the High Court, the Federal Court or the Federal Magistrates Court if the proceeding relates to a person in the person's capacity as:(a) a person who applied for a protection visa; ...(2)The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person's name."In the absence of any direct challenge, it will be assumed that s 91X is constitutionally valid. After the defendant, the Commonwealth of Australia, filed its defence to the plaintiff's statement of claim, Gummow J stated a case for the consideration of the Full Court. At this stage, it is necessary only to note that the following is recorded in the case stated:"The Plaintiff asserts that he would have applied and would, but for sections 474 and 486A of the Migration Act 1958 (Cth), apply to the High Court for judicial review of and for relief in its original jurisdiction under section 75(v) of the Constitution of the decision."A draft Order Nisi attached to the case stated reveals that he would have challenged, or would challenge, the decision on the ground that it was reached in breach of the requirements of natural justice and would have sought, or would seek, relief by way of prohibition, certiorari and mandamus, but not by way of injunction. Breaches of the requirements of natural justice found a complaint of jurisdictional error under s 75(v) of the Constitution[42].[42]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. It is unnecessary in these proceedings to consider any consequences that may follow from the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) which came into force, and applies to decisions made, after the decisions relevant to these proceedings.Questions in the case stated
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
HUGH, GUMMOW, KIRBY AND HAYNE JJ