Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

1 This is an appeal against a decision of Madgwick J given on 11 July 2002. Madgwick J upheld an objection to competency filed by the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

2 The basis for his Honour's decision was that the Court had no jurisdiction because of the terms of s 476(2) of the Migration Act 1958. That subsection says:

"(2) Despite any other law (including ... sections 39B ... of the Judiciary Act 1903, ...), the Federal Court do[es] not have any jurisdiction in respect of a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under ... section 48B [or section 417]."

3 In the present case, the complaint is that the Minister should have considered the exercise of his power under s 48B or s 417. It seems to us clear that s 476(2) covers the situation.

4 The point is taken in the notice of appeal, although in an elliptic way, that ss 474, 475 and 476 of the Act are not constitutionally valid. Section 78B notices were given to the Attorneys-General in relation to this point before the hearing at first instance. No Attorney-General sought to intervene. In this Court, the issue of the constitutional validity of those sections is concluded by the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.

NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 420 (5 December 2002)
Last Updated: 13 December 2002


FEDERAL COURT OF AUSTRALIA
NAJT v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 420


NAJT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 755 of 2002

WILCOX, SPENDER and RYAN JJ

5 DECEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 755 of 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NAJT

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGE:
WILCOX, SPENDER and RYAN JJ


DATE OF ORDER:
5 DECEMBER 2002


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 755 of 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NAJT

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
WILCOX, SPENDER and RYAN JJ


DATE:
5 DECEMBER 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT
THE COURT:

1 This is an appeal against a decision of Madgwick J given on 11 July 2002. Madgwick J upheld an objection to competency filed by the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

2 The basis for his Honour's decision was that the Court had no jurisdiction because of the terms of s 476(2) of the Migration Act 1958. That subsection says:

"(2) Despite any other law (including ... sections 39B ... of the Judiciary Act 1903, ...), the Federal Court do[es] not have any jurisdiction in respect of a decision of the Minister not to exercise, or not to consider the exercise, of the Minister's power under ... section 48B [or section 417]."

3 In the present case, the complaint is that the Minister should have considered the exercise of his power under s 48B or s 417. It seems to us clear that s 476(2) covers the situation.

4 The point is taken in the notice of appeal, although in an elliptic way, that ss 474, 475 and 476 of the Act are not constitutionally valid. Section 78B notices were given to the Attorneys-General in relation to this point before the hearing at first instance. No Attorney-General sought to intervene. In this Court, the issue of the constitutional validity of those sections is concluded by the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.

5 No other point of law is raised. In the circumstances the appeal must be dismissed.

6 The order of the Court will be that the appeal be dismissed and the appellant pay the costs of the respondent.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 5 December 2002

The appellant appeared in person.







Counsel for the Respondent:
Mr T Reilly






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
5 December 2002


Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia