STDB &Ors v Minister for Immigration - [2006] FMCA 561

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STDB &ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 561

MIGRATION − Jurisdiction – review of Minister’s decision − where applicant challenged the decision of Minister on grounds a decision under s.417 Migration Act1958 was so unreasonable as to constitute failure to properly consider the exercise of her discretion − where applicant sought finding that the Federal Magistrates Court is required to consider decision by Minister under s.417 and investigate whether or not it was made in jurisdictional error − whether FMC has jurisdiction under s.476(7) to review a “purported privative clause” decision − whether there was invalidity in the limitation imposed by s.476(2)(b).

Federal Magistrates Court Rules2001
Migration Act 1958, ss.5E, 5(9), 198(2), 417, 476
Constitution of Australia, ss.71,75
Judiciary Act 1903 (Cth), s.39B(1)
Migration Litigation Reform Act 2005 (Cth)
Federal Magistrates Act 1999, s.10

Re Minister for Immigration; Ex parte Applicant S134/2002 (2003) 211 CLR 441
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Applicant S395 of 2004 v Minister for Immigration [2005] FCAFC 171
S1083/2003 v Minister for Immigration [2004] FCA 1455
Ah Yick v Lehmert (1905) 2 CLR 593 at 603-8
New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54 at 90

Yuen, Chris (2006) “Judicial Review of Migration Decisions in the Federal Magistrates Court”, NSW Law Society Journal April 2006, p 66

Applicants:

STDB, SWWB, SWXB & SWYB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File numbers:

ADG49 of 2006 & ADG50 of 2006

Judgment of:

Raphael FM

Hearing date:

7 April 2006

Date of last submission:

7 April 2006

Delivered at:

Sydney

Delivered on:

21 April 2006

REPRESENTATION

Counsel for the Applicant:

Mr P Charman

Solicitors for the Applicant:

McDonald Steed McGrath Lawyers

Counsel for the Respondent:

Mr M Roder

Solicitors for the Respondent:

Sparke Helmore Lawyers

ORDERS

Substantive application be dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $3,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG49 of 2006 & ADG50 of 2006

STDB, SWWB, SWXB & SWYB

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

The application in respect of which these reasons are given is made by the respondent, who seeks an order pursuant to Rule 13.10 of the Federal Magistrates Court Rules2001 that the proceedings be dismissed on the following grounds.
“(a)By reason of the provisions of s.476(2) of the Migration Act 1958 (Cth) (the “Act”), the Federal Magistrates Court has no jurisdiction to review a decision or failure to make a decision under s.417 of the Act.
(b)Further, the proceedings do not disclose a reasonably arguable cause of action.”
The applicants, who are members of a family against whom it is alleged blood feud revenge…

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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Details

Case: [2006] FMCA 561
Decision Date: 21 April 2006

CaseChat Overview and Summary

In the matter of STDB & Ors v Minister for Immigration, the applicants, STDB and others, sought review of decisions made by the Minister for Immigration under the Migration Act 1958 (Cth). The applicants challenged the constitutionality and legality of the amendments made to the Migration Act by the Migration Litigation Reform Act 2005, which centralised the role of the Federal Magistrates Court in reviewing migration cases. The Federal Magistrates Court was tasked with determining whether the legislative changes were consistent with the Constitution and whether the Federal Magistrates Court had the appropriate jurisdiction to review migration decisions.

The court was required to decide whether the amendments to the Migration Act, which effectively transferred the Federal Court's original jurisdiction in migration matters to the Federal Magistrates Court, were valid and whether the Federal Magistrates Court had the requisite jurisdiction to review the decisions of the Refugee Review Tribunal and the Migration Review Tribunal. The court also needed to consider whether the privative clauses in the Migration Act were consistent with the separation of powers and whether they effectively deprived the Federal Court and the High Court of their jurisdiction.

The court found that the amendments to the Migration Act were valid and did not contravene the Constitution. The court held that the Federal Magistrates Court had the appropriate jurisdiction to review migration decisions, including those made by the Refugee Review Tribunal and the Migration Review Tribunal, as intended by the legislation. The court also determined that the privative clauses did not deprive the Federal Court and the High Court of their jurisdiction, as they only applied to certain decisions and did not affect the jurisdiction of the Federal Magistrates Court to review non-privative clause decisions. The court concluded that the amendments were a reasonable and efficient means of handling migration cases and did not infringe upon the separation of powers.

ORDERS:
1. The substantive application was dismissed.
2. The applicants were ordered to pay the respondent’s costs assessed in the sum of $3,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

Orders

Orders of the court

Substantive application be dismissed.

Applicant to pay the respondent’s costs assessed in the sum of $3,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In relation to migration matters, s.476 of the Act is in the following form:“(1)Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. (2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:(a) a primary decision;(b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under s.500;(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under ss.501, 501A, 501B or 501C;(d)a privative clause decision or purported privative clause decision mention in subsection 474(7).(3) Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under s.8 of the Administrative Decisions (Judicial Review) Act 1977 or s.44AA of the Administrative Appeals Tribunal Act 1975.(4) In this section :“primary decision” means a privative clause decision or purported privative clause decision:(a)that is reviewable under Part 5 or 7 or s.500 (whether or not it has been reviewed); or(b)that would have been so reviewable if an application for such review had been made within a specified period.” This section had been amended by the Migration Litigation Reform Act 2005 (Cth). The effect of the amendments were to make the Federal Magistrates Court the sole court of review of the decisions of the Refugee Review Tribunal and the Migration Review Tribunal by excluding the Federal Court’s jurisdiction except in isolated matters such as decisions under s.501 of the Act, and allowing the High Court to remit matters filed in its original jurisdiction to the Federal Magistrates Court. The Minister stated in the Second Reading Speech for the Migration Litigation Reform Bill 2005 that:“A key feature of the bill is to enhance the role of the Federal Magistrates Court in migration cases. … It is commonsense that efficiency is to be gained by directing migration cases to the Federal Magistrates Court. To that end, the bill limits the original jurisdiction of the Federal Court in migration cases.” (10 March, 2005, p 3)The Bill further centralised the Federal Magistrates Court’s role in relation to review of migration cases by expanding the ability of the High Court to remit migration cases filed in its original jurisdiction directly to the Federal Magistrates Court, and expressly without hearing. In so doing the Minister stated that“This is an appropriate efficiency for the handling of all matters filed in the High Court. The High Court is the apex of our judicial system. It should not be burdened with cases that are more appropriately handled by a lower court.” (Minister, Second Reading Speech, 10 March, 2005, p 3) The original grant of jurisdiction in migration matters to the Federal Magistrates Court was accompanied by an amendment to the Migration Act, described in Aronson and Dyer (2004) Judicial Review and Administrative Action 3rd Edition at [34]:“The migration and judicial review legislation were radically amended in 2001. The Migration Act 1958 (Cth) gained a savage looking privative clause, the Government’s intent essentially being to leave bad faith as the only ground of challenge. At the same time, the Government bowed to the protests regarding the trial burden it had imposed on the High Court. The same legislation which brought in the privative clause restored the ADJR in s.39B migration jurisdiction of the Federal Court and the Federal Magistrates Court, subject (as in the High Court’s case) to the privative clause. However, the High Court gave a minimalist interpretation to the privative clause in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.…As now interpreted the privative clause offers no protection to jurisdictionally flawed migration decisions and not a lot of ammunition for re-characterising statutory requirements previously regarded as jurisdictional to now be non-jurisdictional.”It could be said that the decision in Plaintiff S157 v Commonwealth (2003) 211 CLR 476 exhibited a compromise between the legislature and the judiciary, whereby the judiciary accepted the ability of the legislature to qualify its jurisdiction but the legislature tacitly accepted the limitation imposed upon such qualification to decisions which were validly made.

Ratio Decidendi

Legal Principle Established

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