FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Maman (No 2) [2012] FCAFC 35

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK AND FOSTER JJ:

1    On 28 February 2012 this Court published its reasons for decision in this proceeding and directed the parties to bring in short minutes of orders to give effect to its conclusions: Minister for Immigration and Citizenship v Maman [2012] FCAFC 13.

2    The appeal was an appeal by the Minister from a decision of a Federal Magistrate who had directed the Migration Review Tribunal to “reconsider and determine [Mr Maman’s] matter according to law” because of a denial of procedural fairness on the part of the Tribunal: Maman v Minister for Immigration and Citizenship [2011] FMCA 426. The Tribunal had affirmed a decision made by a delegate of the Minister refusing Mr Maman’s application for a Partner (Residence) subclass 801 visa.

3    This Court concluded that the appeal was to be dismissed. No question arises as to the appropriateness of making this order, together with an order that the Minister pay the costs of Mr Maman.

4    A question arose, however, as to whether, rather than sending the matter back to the Tribunal, further orders should be made setting aside the delegate’s decision and remitting Mr Maman’s application to the Minister or his delegate “for determination in accordance with law”. The question of such an order being made came about because the denial of procedural fairness that arose by reason of the non-disclosure of a letter dated 3 March 2006 had the potential to vitiate not only the decision of the Tribunal – but also the initial decision of the delegate. The 3 March 2006 letter had certainly not been disclosed to Mr Maman when the delegate made his decision in November 2009.

5    Consequently, the Minister and Mr Maman were given an opportunity to make further written submissions so that the form of orders could be finally resolved without the need for any further oral hearing.

6    The Minister contends that there is no power to make these further orders and Mr Maman accepts the Minister’s contention.

7    The matter, accordingly, need only be briefly addressed.

Section 476

8    The jurisdiction of this Court to hear and determine the appeal from the Federal Magistrate is that conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).

9    It is s 28 of that Act which addresses the form of orders that may be made on appeal. Section 28(1) provides in relevant part as follows:

Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:

(a)    affirm, reverse or vary the judgment appealed from;

(b)    give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(c)    set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

…

Notwithstanding the width of the power conferred by s 28(1)(b), that provision does “not set the court on an unchartered course without legal reference points by which to steer”: Robins v Incentive Dynamics Pty Ltd [1999] FCA 1651 at [38], 91 FCR 423 at 432 per Branson, Sackville and Kiefel JJ (citing Johns v Australian Securities Commission (1993) 178 CLR 408 at 433 per Brennan J). The “question of relief is not at large and the doing of justice between the parties means justice according to law”: cf Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 at [34], 199 CLR 343 at 357 per Gleeson CJ, McHugh, Gummow and Hayne JJ.

10    The Court is also directed by s 22 of the 1976 Act to “grant … all remedies to which any of the parties appears to be entitled … so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided”. But s 22, it will be recalled, is a section directed to the powers of the Court and not the jurisdiction of the Court: Philip Morris Incorporated v Adam P Brown Male Fashions Proprietary Limited (1981) 148 CLR 457 at 489 per Gibbs J; at 505 to 506 per Mason J; at 529 per Aickin J.

11    Unconstrained by “any other Act”, it may “in all the circumstances” have nevertheless been thought “fit” to make the orders proposed.

12    The powers that may otherwise have been available pursuant to ss 22 and 28, however, are in this case subject to the constraints to be found in s 476 of the Migration Act 1958 (Cth). That section provides as follows:

Jurisdiction of the Federal Magistrates Court

(1)    Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

(2)    The Federal Magistrates Court has no jurisdiction in relation to the following decisions:

(a)    a primary decision;

(b)    a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

(c)    a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;

(d)    a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

(3)    Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.

(4)    In this section:

“primary decision” means a privative clause decision or purported privative clause decision:

(a)    that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b)    that would have been so reviewable if an application for such review had been made within a specified period.

The delegate’s decision, the Minister contends, is a “primary decision” and hence a decision in respect to which the Federal Magistrate’s Court has no jurisdiction. If that Court has no jurisdiction, no greater jurisdiction is conferred upon this Court on appeal. “The available relief”, the Minister further contends, “extends only to orders of the kind made by Raphael FM: setting aside the Tribunal’s decision, and granting mandamus requiring the Tribunal to determine the review according to law”. It thereafter remains a matter for the Tribunal “to consider, by reference to the Court’s reasons, whether it ought to determine the issue of domestic violence itself (including, possibly, the appointment of a further expert) or use its power in s 349(2)(c) of the Migration Act to remit the matter to the delegate”.

13    So much is common ground between the parties.

14    Although it may thus be accepted that this Court has no power to set aside the decision of the Minister’s delegate, it is to be hoped that those advising the Minister will inform him of the decision of the Court. If there is an administrative means whereby a decision can be made in relation to Mr Maman’s application in a procedurally fair manner, the sooner such a decision is made the better.

Conclusions

15    The Court in the present proceeding lacks the power to set aside the decision of the Minister’s delegate as notified on 25 November 2009.

16    It is thus proposed that the Orders of the Court be:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    20 March 2012

REASONS FOR JUDGMENT

KATZMANN J:

17    I agree with the orders proposed by Flick and Foster JJ.

Associate:

Dated:    20 March 2012