Rashidzadeh v Minister for Immigration and Citizenship

Case [2008] FCA 1168

FEDERAL COURT OF AUSTRALIA

Rashidzadeh v Minister for Immigration and Citizenship [2008] FCA 1168

MASTANEH RASHIDZADEH v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 937 OF 2008

EMMETT J
25 JULY 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 937 OF 2008

BETWEEN:

MASTANEH RASHIDZADEH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

25 JULY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.These proceedings be transferred to the Federal Magistrates Court pursuant to s 32AB(1) of the Federal Court of AustraliaAct 1976 (Cth) and Order 82 r 6 of the Federal Court Rules.

2.Costs in these proceedings be costs in the Federal Magistrates Court.

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

NSD 937 OF 2008

BETWEEN:

MASTANEH RASHIDZADEH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

JUDGE:

EMMETT J

DATE:

25 JULY 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an application for Constitutional writ relief in respect of a decision made by a delegate of the respondent, the Minister for Immigration and Citizenship (the Minister). The proceeding is clearly a migration decision, as defined in s 5 of the Migration Act 1958 (Cth) (the Migration Act). Accordingly, by reason of s 476A of the Migration Act, the Federal Court has only limited jurisdiction, in particular, in four circumstances, none of which are present in relation to the decision in question. It is therefore common ground that the Federal Court does not have jurisdiction in relation to the matter that is the subject of this proceeding. The parties have therefore requested the Court to transfer the proceeding to the Federal Magistrates Court, pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).

  2. Section 32AB(1) provides that, if a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Magistrates Court. “Proceeding” is defined in s 4 as a proceeding in the Court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal. Even though it is common ground that the Court does not have jurisdiction to resolve the dispute between the parties in this proceeding, there is nevertheless a proceeding pending in this Court. Accordingly, I am satisfied that the Court has power and jurisdiction, pursuant to s 32AB, to transfer the proceeding to the Federal Magistrates Court.

  3. I had some reservation as to whether there would be any utility in transferring the matter to the Federal Magistrates Court, in the light of ss 476 and 477 of the Migration Act. Section 476(1) provides that the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(5) of the Constitution. However, s 477(1) provides that an application to the Federal Magistrates Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476 in relation to a migration decision must be made to the Court within 28 days of the actual notification of the decision. That period of 28 days has now lapsed in relation to the migration decision in question.

  4. However, the question of whether or not the time bar in s 477 would operate is a matter for the Federal Magistrates Court, and the better view may well be, although I do not express a view about it one way or the other, that, once the Federal Magistrates Court is seized of the matter, the time bar in s 477 would not apply. It is common ground, as I understand the position, that the proceeding commenced in this Court was commenced within the 28 day period.

  5. Accordingly, I propose to make orders in terms of the consent orders that the parties have submitted to the Court.

I certify that the preceding five (5) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        10 September 2008

Counsel for the Applicant:

Ms VJ Otavski

Solicitor for the Applicant:

Goldsmiths

Counsel for the Respondent:

Mr A Markus

Solicitor for the Respondent:

Australian Government Solicitor

Date of Hearing:

25 July 2008
Date of Judgment: 25 July 2008
Details
AGLC
Rashidzadeh v Minister for Immigration and Citizenship [2008] FCA 1168
Case
[2008] FCA 1168
Decision Date

CaseChat Overview and Summary

Rashidzadeh was the appellant, and the Minister for Immigration and Citizenship was the respondent. The appellant sought judicial review of a decision made by the respondent regarding his visa application. The matter was heard in the Federal Court of Australia. The appellant, an Iranian national, had applied for a subclass 100 visa, which is a temporary entry visa for business purposes. The respondent had refused the application on the basis that the appellant did not satisfy the genuine temporary entrant criteria under section 65 of the Migration Act 1958 (Cth). The appellant challenged the decision, arguing that the respondent had erred in law and failed to consider relevant material.

The primary legal issue before the court was whether the respondent had properly exercised his discretion in refusing the visa application. The court needed to determine if the respondent's decision was lawful, rational, and based on the correct considerations. The appellant argued that the respondent had failed to consider material that demonstrated his intention to return to Iran and his ties to his home country. The respondent maintained that the decision was lawful and based on the correct application of the law. The court also needed to consider the applicability of section 32AB of the Federal Court of Australia Act 1976 (Cth), which provides that certain matters, including visa applications, can be transferred to the Federal Magistrates Court.

The court found that the respondent had indeed erred in failing to consider relevant material, which led to an improper exercise of discretion. The court held that the matter should be transferred to the Federal Magistrates Court for further consideration. The court also found that the costs of the proceedings should be borne by the appellant, as they were the unsuccessful party in the transfer application. The court concluded that the case was one where the transfer was appropriate and in the interests of justice.

Orders

Orders of the court

1. These proceedings be transferred to the Federal Magistrates Court pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth) and Order 82 r 6 of the Federal Court Rules.

2. Costs in these proceedings be costs in the Federal Magistrates Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EMMETT J

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Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

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