FEDERAL COURT OF AUSTRALIA

Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 75

PETAR NIKOLOV KOULAXAZOV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S138 of 2002

MADGWICK, GYLES & CONTI JJ

SYDNEY (HEARD IN ADELAIDE)

2 MAY 2003

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

CORRIGENDUM

In Madgwick J’s judgment, para 12 should read as follows:

“Also inconsistent with NAAV, on my understanding, is the reasoning of Gleeson CJ.  As in the majority’s references to “inviolable limitations or restraints” and “imperative duties” as “examples” of jurisdictional error:  see [76], the Chief Justice regarded “inviolable” limitations upon a decision-maker’s authority as not within the protection sought to be given by s 474.  The question then would be whether, assuming such a misfire of endeavour by the Tribunal as to amount to (in other language, to involve “constructive”) failure to discharge its statutory duty to review the delegate’s decision, such mishap would amount to a breach of an “inviolable” obligation by the Tribunal.  By parity of reasoning with the approach of the Chief Justice (see [19] to [38]) in a case of denial of natural justice, in my opinion, such a violation would have occurred.  In general, the Chief Justice appears to have been concerned to emphasize that, in the necessary statutory reconciliation of s 474 with the rest of the Act, not all of the official powers and discretions with which the Act is, as French J put it in NAAV, “replete”, will be able to be regarded as instances of inviolable limitations or obligations.  In my view, the joint majority’s reasons do not suggest otherwise.  The only difference between the majority and the Chief Justice was one of emphasis.  This view, and the significance that I have suggested S157 is generally, is supported by the joint judgment of Gleeson CJ and McHugh, Gummow, Hayne and Callinan JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1.  At [15] their Honours said:

“Central to the operation of the new Pt 8 is the definition of "privative clause decision" in s 474(2).  Section 474 is construed in Plaintiff S157/2002 v The Commonwealth of Australia, with the result that, if they were infected by jurisdictional error, the decisions here of the Tribunal and the Minister were not privative clause decisions.”

Associate:

Dated:              9 May 2003