FEDERAL COURT OF AUSTRALIA
Whittaker v Minister for Immigration and Border Protection [2017] FCA 494
File number: QUD 224 of 2017 Judge: DERRINGTON J Date of judgment: 4 May 2017 Catchwords: MIGRATION – application to revoke cancellation of visa under s 501CA(4) of the Migration Act 1958 (Cth) – cancellation made prior to Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)
PRACTICE AND PROCEDURE – Jurisdiction – Whether court has jurisdiction to transfer proceedings under s 32AB of the Federal Court of Australia Act 1976 (Cth) where there is no jurisdiction to hear the substantive matter
Legislation: Migration Act 1958 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth)
Federal Court of Australia Act 1999 (Cth)
Judiciary Act 1903 (Cth)
Cases cited: Asaad v Minister for Immigration and Citizenship [2008] FCA 836
Poroa v Minister for Immigration and Border Protection [2015] FCA 1313
Rashidzadeh v Minister for Immigration and Citizenship [2008] FCA 1168
Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188
Date of hearing: 4 May 2017 Registry: Brisbane Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondents: Ms E Tattersall of Sparke Helmore ORDERS
QUD 224 of 2017 BETWEEN: ZIYAAD WHITTAKER
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
DEPUTY MINISTER OF IMMIGRATION THE HONORABLE ALEX HAWKE
Second Respondent
JUDGE:
DERRINGTON J
DATE OF ORDER:
4 MAY 2017
THE COURT ORDERS THAT:
1.the matter be transferred to the Federal Circuit Court of Australia pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth); and
2.there be no order as to costs.
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 the applicant, Mr Ziyaad Whittaker, seeks an extension of time in which to bring an application for the purposes of challenging the decision of the Minister for Immigration and Border Protection not to revoke a cancellation decision in respect of his visa.
The circumstances surrounding the reasons as to why this application has to be made are probably not necessary to consider, however, it is relevant to note that Mr Whittaker had his existing visa cancelled and was informed of that at a relatively early stage. He then, by the assiduous efforts of his mother, made representations to the Minister seeking that the Minister exercise his power to, applied to revoke the cancellation of his visa under section 501CA(4) of the Migration Act 1958 (Cth). The Minister considered, over some significant period of time, whether or not to do that. Eventually, on 17 January 2017, he determined that he would not.
Under the provisions of section 477 of the Migration Act the applicant had a limited period of time in which to make…
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- AGLC
- Whittaker v Minister for Immigration and Border Protection [2017] FCA 494
- Case
- [2017] FCA 494
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to address was whether it had the jurisdiction to transfer the proceedings to the Federal Circuit Court under section 32AB of the Federal Court of Australia Act 1976 (Cth). This question arose because the Federal Court did not have the jurisdiction to hear the substantive matter of the visa cancellation. The court had to consider whether the transfer provision applied in circumstances where there was no existing jurisdiction over the substantive matter.
The court found that it did indeed have the jurisdiction to transfer the proceedings to the Federal Circuit Court. It reasoned that the plain language of section 32AB allowed for such a transfer even in the absence of jurisdiction over the substantive matter. The court noted that the purpose of the provision was to ensure that matters were heard by the appropriate tribunal, and transferring the proceedings to the Federal Circuit Court was consistent with this purpose. Consequently, the court ordered that the matter be transferred to the Federal Circuit Court of Australia.
In conclusion, the court granted the order for the transfer of the proceedings to the Federal Circuit Court of Australia and made no order as to costs. This decision was made pursuant to section 32AB(1) of the Federal Court of Australia Act 1976 (Cth), ensuring that the matter was appropriately handled by the tribunal with the necessary jurisdiction.
Orders
Orders of the court
1. the matter be transferred to the Federal Circuit Court of Australia pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth); and
2. there be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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