SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs

The case of SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs involves the applicant, SZGAP, challenging a decision of the Minister for Immigration & Multicultural & Indigenous Affairs. The central issue pertains to the jurisdiction of the Federal Magistrates Court (FMCA) in reviewing decisions made by the Migration Review Tribunal (MRT) prior to the establishment of the FMCA and its jurisdiction under the Migration Act 1958 (Cth). The applicant argues that the FMCA should have jurisdiction to review decisions of the MRT made before the FMCA's establishment, and seeks to bypass the 28-day limitation period specified in section 477(1A) of the Act. The legal issues that the court had to address include the applicability of the 28-day time limit to decisions made before the FMCA's jurisdiction commenced and whether the FMCA has jurisdiction to review decisions of the MRT made prior to its establishment.

The court examined the legislative history of the relevant provisions and concluded that the FMCA did not acquire jurisdiction over decisions of the MRT until 2 October 2001, when the Jurisdiction of Federal Magistrates Service Legislation Amendment Act 2001 (Cth) came into effect. Prior to this date, the Federal Court had exclusive jurisdiction over judicially reviewable decisions, including decisions of the MRT, with a 28-day limitation period. The court further noted that the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) introduced a new privative clause in the Act, which excluded the Federal Court's jurisdiction under section 39B(1) of the Judiciary Act 1903 (Cth) in respect of decisions made by the MRT under the Act. However, the court held that a decision affected by jurisdictional error is not a privative clause decision, and therefore, the Federal Court retains jurisdiction to review such decisions.

Based on the legislative history and the court's interpretation of the relevant provisions, the court held that the FMCA did not have jurisdiction to review decisions of the MRT made before its establishment, and the 28-day time limit applied to decisions made before the FMCA's jurisdiction commenced. The court further held that the applicant's objection to competency did not fall within the scope of the FMCA's jurisdiction, and therefore, the application was dismissed. The court also ordered that the applicant pay the first respondent's costs.