Whittaker v Assistant Minister for Immigration and Border Protection (No 3)
[2018] FCA 807
•1 May 2018
FEDERAL COURT OF AUSTRALIA
Whittaker v Assistant Minister for Immigration and Border Protection (No 3) [2018] FCA 807
File number(s): QUD 224 of 2017 Judge(s): DERRINGTON J Date of judgment: 1 May 2018 Catchwords: MIGRATION – Review of decision not to revoke cancellation decision – Where one ground of appeal was not heard due to an appeal to the High Court of Australia (Falzon v Minister for Immigration and Border Protection (2018) HCA 2), which was substantially the same – Where that ground of appeal was heard after the decision of the High Court of Australia was handed down – Where, pursuant to Falzon, s 501(3A) of the Migration Act 1958 (Cth) does not confer upon the Minister judicial power or power that was judicial in character
COSTS – Where the matter was transferred between the Federal Circuit Court of Australia and the Federal Court of Australia – Where the distribution of jurisdiction under the Migration Act 1958 (Cth) is difficult to follow and the legislation is somewhat uncertain in relation to jurisdiction
Legislation: Constitution
Migration Act 1958 (Cth)
Cases cited: Falzon v Minister for Immigration and Border Protection (2018) HCA 2 Date of hearing: 1 May 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 9 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr B McGlade Solicitor for the Respondent: Sparke Helmore ORDERS
QUD 224 of 2017 BETWEEN: ZIYAAD WHITTAKER
Applicant
AND: ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
DERRINGTON J
DATE OF ORDER:
1 MAY 2018
THE COURT ORDERS THAT:
1.The application for relief sought in paragraph 6 under the heading “Details of relief sought” and paragraph 6 of “Grounds of application” is dismissed.
2.The applicant pay the respondent’s costs, to be agreed or taxed, save for the costs of an incidental to the transfer of this matter to or from the Federal Circuit Court of Australia.
3.Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
In this matter, which has had a long history, the circumstances of which are set out in my judgment dated 9 March 2018, the applicant has sought review of a Minister's decision refusing to revoke a cancellation decision. As my earlier reasons identify, the first hearing proceeded upon the basis that certain paragraphs of the amended application for review not be dealt with because they raised a Constitutional issue which was substantially the same as that raised in the matter of Falzon v Minister for Immigration and Border Protection (2018) HCA 2.
By the time I delivered my reasons for decision in relation to the issues apart from the Falzon issue, the High Court had given judgment in Falzon, and today's hearing was for the purposes of allowing the parties to address any issue arising from that decision. In effect, that meant that the debate today was to focus upon the Falzon issue. Unfortunately for the applicant, of course, the decision of the High Court in Falzon determined that the Minister's power under section 501(3A) did not confer upon the Minister judicial power or power that was judicial in character, and as a result was not invalid. In effect, that forecloses the remaining paragraphs of the applicant's amended application.
Pursuant to the doctrine of precedent which is well established in this country, I have no choice but to apply the decision in Falzon. In any event, even if it were left to me, I would agree with the reasoning of the High Court that the Minister's power is not a judicial one. The applicant has raised in his outline of submissions a number of other brief issues, none of which raise any additional ground which would disclose jurisdictional error on behalf of the Minister. One ground related to whether or not the member of Parliament holding the office as Assistant Minister is properly a member of Parliament pursuant to section 44 of the Constitution. Presently, there is no issue before the High Court, sitting as the Court of Disputed Returns, that the Assistant Minister was not properly elected to the House of Representatives, and there is no factual basis for even thinking that might be correct in evidence in this court. As a result, no Constitutional issue is presently pending in the High Court to which that ground might go and nor has any Constitutional issue been raised in this Court on that ground either. That being so, that ground must also be rejected.
As I have mentioned, although the applicant has put in a fulsome set of submissions concerning the Falzon issue, nothing there said can undermine the conclusion of the High Court. In the result, it is necessary to dismiss the remaining paragraphs, or the remainder of the amended application. I make an order to dismiss the balance of the application not dismissed in consequence of order 2 of the orders of this Court made on 9 March 2018.
In relation to the costs of the matter, as the Minister has conceded, in a sense, at least one of the transfers to the Federal Circuit Court was not a consequence of the applicant's wrongdoing or failure to file properly.
Whilst there might be some doubt about that, I accept that the distribution of jurisdiction under the Migration Act 1958 (Cth) was difficult to follow at the relevant time and particularly for litigants in person. In this matter where there has been a state of legislative uncertainty, there would be a degree of unfairness in imposing upon the applicant any costs relating to a transfer of the proceedings to or from the Federal Circuit Court. Otherwise, though, there seems to be no reason why the ordinary order for costs should not be made. As my initial reasons indicated, a large number of grounds were raised by the applicant as to why the Minister's decision was invalid or ought be set aside. None of those were successful and the Minister was required to deal with them.
In the result, the appropriate order is that the applicant pay the Minister's costs of the application, to be agreed or taxed, save for the costs of and incidental to the transfer of this matter to or from the Federal Circuit Court.
I will also make a further order for liberty to apply if there be a need for those orders to be fleshed out in greater detail.
Those being the orders, the application is dismissed.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington. Associate:
Dated: 1 May 2018
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