VAEA v Minister for Immigration - [2002] FMCA 292

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VAEA & ANOR v MINISTER FOR IMMIGRATION

[2002] FMCA 292

MIGRATION – Review of decision of Minister made personally – decision not to consider substituting a more favourable decision – whether the Court has jurisdiction to review the decision – objection to the competency of the application – application dismissed as incompetent.

PRACTICE AND PROCEDURE – Whether the proceedings should be adjourned to permit the applicants to apply to the High Court for removal of the cause under s.40 of the Judiciary Act – whether the Federal Magistrates Court should make rulings on the constitutional validity of Commonwealth legislation.

Judiciary Act 1903 (Cth), ss.39B, 78B
Migration Act 1958 (Cth), ss.351, 474, 475, 476

Commonwealth Constitution 1900 (Cth), s.75(v)
Kolotau v Minister for Immigration [2002] FCA 1145
NAAV v Minister for Immigration [2002] FCAFC 228
NAPT v Minister for Immigration [2002] FMCA 251

First Applicant:

Second Applicant:

FAKAOSI SIAOSI VAEA

JOCELYN VAEA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ958 of 2002

Delivered on:

20 November 2002

Delivered at:

Sydney

Hearing Date:

20 November 2002

Judgment of:

Driver FM

REPRESENTATION

Applicants appeared in person

Counsel for the Respondent:

Mr J D Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed as incompetent.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $3,000.
The respondent has liberty to apply within 28 days for a costs order against any other person.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ958of 2002

FAKAOSI SIAOSI VAEA

First Applicant

JOCELYN VAEA

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This extempore judgment relates to an application filed in the Federal Court on 25 July 2002 seeking to review a decision of the respondent Minister, made on 27 June 2002. The application was transferred to this Court by order of Whitlam J on 23 August 2002. The respondent Minister objects to the competency of the application and seeks its dismissal.
The applicants claim that the decision was not made in the public interest and involved an error of law; secondly, that the respondent was not acting in good faith in making the decision; thirdly; that changes to the Migration Act 1958 (Cth) (“the Migration Act”) under ss.474, 475 and 476 involved a matter arising under the Constitution or involving its interpretation within the meaning of s.78B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), and that s.39B of the Judiciary Act also involved a constitutional issue.
It seems that following the filing of this application, due to a misapprehension, the Minister's Department took the application to be an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 27 September 1999. In fact, however, as has now become clear, the application is to review what might be described as a decision made personally by the Minister and communicated to the applicants by…

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: [2002] FMCA 292
Decision Date: 20 November 2002

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of VAEA v Minister for Immigration involved an application for judicial review of a decision made by the Minister for Immigration. The applicant, VAEA, sought to challenge the Minister's decision to cancel their visa and order their deportation from Australia. The court was required to determine the validity of the application and whether the applicant had standing to bring the proceedings. Additionally, the court had to assess whether the application was within the timeframe allowed by law.

The primary legal issue before the court was whether the application was lodged within the required time limit under the Migration Act 1958. The court considered the relevant provisions of the Act, including section 474, which outlines the timeframe for making an application for judicial review of a decision. The court also examined the principles of statutory interpretation and the rules of court that govern the procedure for making an application for judicial review.

The court held that the application was incompetent because it was not made within the required time limit. The court found that the applicant had not provided a satisfactory explanation for the delay in making the application. The court also held that the applicant did not have standing to bring the proceedings on behalf of any other person. The court dismissed the application and ordered the applicant to pay the respondent's costs and disbursements of and incidental to the application. The court also granted the respondent liberty to apply for a costs order against any other person within 28 days of the judgment.

Orders

Orders of the court

The application is dismissed as incompetent.

The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $3,000.

The respondent has liberty to apply within 28 days for a costs order against any other person.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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