SZABG v Minister for Immigration
[2007] FMCA 721
•10 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZABG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 721 |
| MIGRATION – Time limit on application for judicial review – effectiveness and constitutional validity – hearing adjourned to allow s.78B notices. |
| Migration Act 1958 (Cth), ss.476, 477 Judiciary Act 1903 (Cth), s.78B Federal Magistrates Court Rules 2001 (Cth), r.10.06 |
Abebe v The Commonwealthof Australia (1999) 197 CLR 510
Applicants S503 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1372
Applicants S503 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 133
Applicants S503 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 079
Bodruddaza v Minister for Immigration [2007] HCA 14
Fisher v Minister for Immigration [2007] FCA 591
Nguyen v Minister for Immigration [2006] FMCA 1495; 204 FLR 138
Nguyen v Minister for Immigration [2007] FCAFC 38
SBFF v Minister for Immigration [2007] FCA 178
SZABG & Anor v Minister for Immigration [2003] FMCA 242
SZICV & Anor v Minister for Immigration [2006] FMCA 1063; 202 FLR 200
SZICVv Minister for Immigration [2007] FCAFC 39
WAIJ v Minister for Immigration (2004) 80 ALD 568
| First Applicant: | SZABG |
| Second Applicant: | SZABI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 315 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 10 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Dr J Azzi |
| Solicitors for the Applicant: | Davidson James & Associates |
| Counsel for the First Respondent: | Ms S Zarucki |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The hearing of the first respondent’s application for summary dismissal is adjourned to 26 June 2007 at 10.15 a.m.
The applicant must file a notice under r.10.06 and serve it on the respondents and Attorneys-General no later than 28 May 2007.
The applicant must file and serve a written submission on the issue of competency no later than 18 June 2007.
Each of the parties and Attorneys-General have liberty to apply for further directions on 2 days notice to the other parties.
Costs in relation to the adjournment are reserved
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 315 of 2007
| SZABG |
First Applicant
| SZABI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 1 February 2007 seeking relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 16 October 2002.
The application and the affidavit in support acknowledge that actual notification of the Tribunal's decision occurred prior to December 2005, and it is not contested that the application is incompetent under s.477 of the Migration Act if that provision is legally effective and constitutionally valid.
The effectiveness of s.477 has been upheld in many cases, including by me in judgments which have recently been upheld in the Full Court (see: SZICV & Anor v Minister for Immigration [2006] FMCA 1063, 202 FLR 200, upheld in SZICVv Minister for Immigration [2007] FCAFC 39; and Nguyen v Minister for Immigration [2006] FMCA 1495, 204 FLR 138, upheld in Nguyen v Minister for Immigration (2007) FCAFC 38). There have been numerous other cases in this Court and the Federal Court where the legal effectiveness of s.477 has been assumed.
At the first Court date on 27 February 2007, the applicant was represented by counsel instructed by solicitors. The respondent foreshadowed an interlocutory application to have the application dismissed as incompetent, or as an abuse of process due to previous litigation engaged in by the applicants. I set the matter down for hearing on the issue of competence and the interlocutory application today, and gave directions for the service of outlines of submissions and authorities. Unfortunately, the applicant did not file any written submissions, and my chambers did not even receive a list of authorities from counsel for the applicant, who appeared today.
In the course of his oral submissions, counsel for the applicant challenged the legal effectiveness of s.477, as I understood him, on two bases. The first argued that the enactment of s.477 was beyond the Constitutional competence of the Parliament to make laws under ss.71 and 77 of the Constitution. Counsel sought to gain support for this contention from passages in the dissenting judgment of Gummow and Hayne JJs in Abebe v The Commonwealthof Australia (1999) 197 CLR 510 at [169]-[170], and from a reference to their judgment in WAIJ v Minister for Immigration (2004) 80 ALD 568 [22]. He argued that their opinions were not inconsistent with the reasoning of the majority at [28]-[37], [45], [234]-[237], and [279]-[280].
The second basis for challenging the effectiveness of s.477 turned upon the construction of the two key provisions investing and defining this Court's statutory jurisdiction under the Migration Act, being s.476 and s.477. Counsel argued that the definition of the Court's jurisdiction in s.476(1) as “the same original jurisdiction in relation to Migration decisions as the High Court has under para.75(v) of the Constitution”, gives rise to an inconsistency in relation to s.477, as a result of the decision of the High Court in Bodruddaza v Minister for Immigration [2007] HCA 14. This held that the High Court's original jurisdiction cannot be subject to a limitation in the same terms as s.477. It is argued by reference to extrinsic material that s.477 was enacted upon the assumption that s.486A was constitutionally valid. Once this fallacy was revealed by the High Court, s.477 must also be treated as ineffective.
I am doubtful whether the applicant's second argument “involves a matter arising under the Constitution or involving its interpretation” within s.78B(1) of the Judiciary Act 1903 (Cth). However, his first argument appears to answer that description. If it does, it is the duty of the Court:
not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General of the question of intervention in the proceedings, or removal of the cause to the High Court.
Authorities on this provision have suggested that the Court is not required to adjourn to allow notices to be given merely because a party presents an argument invoking the Constitution, unless it is satisfied that there is properly raised a Constitutional point requiring its attention in a substantive way.
Both of the applicant’s arguments face, at least in this Court, difficulties in the face of Buchanan J’s opinions in SZICVv Minister for Immigration [2007] FCAFC 39 at [43]-[68], and in particular:
46However, in my view, the argument fails at the threshold. It is competent for Federal Parliament to impose limitations upon the jurisdiction of the Federal Magistrates Court, whether at the same time and in the same provision as jurisdiction is granted or at some other time and by some other provision. In my view the imposition of such a limitation is the intention and effect of s 477. The relevant provisions must be read conformably and in a way which gives them appropriate work to do as an harmonious legislative scheme.
47The opening grant of jurisdiction in s 476(1) – viz ‘the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution’ is a statutory, not a constitutional, grant of power. It does not prevail over limitations expressed in the same statute unless that results from a proper construction of the provisions as a whole. Clearly it does not prevail over the exclusions in s 476(2) to which the grant of jurisdiction is expressed to be subject. Neither, in my view does it prevail, as a matter of statutory construction, over the limitations expressed in s 477
48Whatever might be said about the potential clash between s 486A and the reservation of authority to the High Court under s 75(v) of the Constitution I do not accept that Parliament intended that the operation of s 477 should be limited in the way suggested in argument. Indeed, it seems clear that Parliament intended to limit the jurisdiction of each of the High Court, the Federal Court and the Federal Magistrates Court by time limits on applications to each court. Should this legislative intention be held to have failed, in the case of the High Court, by reason of the operation of the Constitution, that will not signify that the intention remains unrealised in relation to s 477.
His Honour's opinions are binding upon me, since they had the agreement of Besanko J, and possibly also Moore J, in the Full Court on appeal from one of my own decisions. The same opinions were expressed by Stone J recently in Fisher v Minister for Immigration [2007] FCA 591 at [39]. There is, however, an oblique suggestion by Mansfield J in SBFF v Minister for Immigration [2007] FCA 178 at [28], given in the exercise of the Federal Court's appellate jurisdiction from this Court prior to SZICV, which hints at a constitutional argument allowing the effectiveness of 477 to be challenged. It is not clear to me that the Constitutional argument now sought to be made to me was presented to the Federal Court in any of those cases.
Without fuller submissions from both parties, I am not satisfied that there is a Constitutional point of such merit deserving of a transfer by me of the whole of the cause to a superior Court at this stage of the proceeding. However, I consider that it has been presented with a legal argument sufficient to require me to take notice of the point for the purposes of s.78B(1). I therefore consider that I am bound to allow the Attorneys-General an opportunity to intervene.
When I raised the failure of the applicant to served notices under s.78B as required under r.10.06 of the Federal Magistrates Court Rules 2001 (Cth), counsel for the applicant applied for an adjournment for this purpose. For the above reasons, I consider that he must be given that adjournment.
I do so with some reluctance, given the litigation history of the applicants. This has involved two previous judicial review challenges to the Tribunal’s decision, one of which was taken up to the High Court (see SZABG & Anor v Minister for Immigration [2003] FMCA 242, Applicants S503 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1372, Applicants S503 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 133, and Applicants S503 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 079).
I consider it would be desirable for this matter to be determined expeditiously, and therefore shall adjourn the hearing only to 26 June 2007.
If the Minister wishes to be confident that the hearing will be able to proceed on that date, I suggest that he could consider alerting the Attorneys-General to the matter immediately, to allow them to commence their consideration before formally being served with the requisite notices.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 15 May 2007
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