FEDERAL COURT OF AUSTRALIA

Man Chi Christine Chung v Minister for Immigration & Multicultural Affairs and Migration Review Tribunal [2006] FCA 1317

Appeal And New Trial – appeal – new grounds of appeal – whether leave should be granted to raise new grounds – whether matter should be remitted to Federal Magistrates Court

Federal Court of Australia Act 1976 (Cth)

Migration Act 1958 (Cth)

SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 448

MAN CHI CHRISTINE CHUNG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND MIGRATION REVIEW TRIBUNAL

NSD 926 OF 2006

TRACEY J

6 OCTOBER 2006

MELBOURNE

THE COURT DECLARES THAT:

1.                  It considers that it is appropriate that the appellate jurisdiction of the Court in relation to this appeal should be exercised by a Full Court.

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

RULING

1                     This proceeding commenced in this court as an application for leave to appeal from a decision of a Federal Magistrate handed down on 27 April 2006. The learned Magistrate had before him an application for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) that it could not entertain the appellant’s application because it had been lodged outside the time prescribed for the purposes of s 347(1)(b) of the Migration Act 1958 (Cth) (“the Act”). That time was prescribed by reg 4.10(1)(a) of the Migration Regulations. It came on for hearing before me in Sydney on 11 August 2006. The application was listed before a single judge pursuant to s 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth). Leave to appeal was needed because the Magistrate’s decision had been interlocutory in nature. The appellant was represented by Counsel, who, I was informed, had only recently been briefed in the matter. He indicated that the appellant wished to abandon the grounds of appeal which appeared in the Notice of Appeal and to substitute alternative grounds which had not been argued in the Federal Magistrates’ Court. Counsel for the Minister consented to leave being granted to appeal and for an amended Notice of Appeal to be filed and I so ordered: c.f. SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 448. I directed that the parties file and serve written submissions on the issues raised by the new grounds. That has now been done.

2                     A directions hearing was held on 5 October 2006. The parties were agreed that I should not now proceed to determine the appeal. The appellant’s preference was that the matter should be remitted to the Federal Magistrates’ Court so that the issues raised by the new grounds could be argued and ruled on. Counsel for the Minister sought an order referring the matter to a Full Court for hearing and indicated that the Minister would not have consented to leave being granted to amend the appeal grounds had the appellant then intimated that she wished to have the matter remitted to the Federal Magistrates’ Court. Both parties were agreed that there was no dispute as to relevant facts and that the only matters to be agitated on the appeal were questions of law.

3                     Having considered the matter I have determined that the appropriate course is for the appeal to be dealt with by a Full Court. One of the new grounds of appeal is that reg 4.10(1)(a) of the Migration Regulations is ultra vires the Migration Act 1958. So far as I am aware this is the first time that a challenge has been made to the validity of that regulation. I say no more than that the appellant’s contention, as developed in her written submissions is, at least, fairly arguable. It is now almost a year since the decision of the Tribunal was made. Were the matter to be remitted to the Federal Magistrates’ Court there would, inevitably, be a delay in the hearing and determination of the application and the strong prospect, regardless of outcome, that the matter would return to this Court. In these circumstances, the preferable course, in my opinion, is that the appeal should be heard and determined, as soon as practicable, by a Full Court. The consequence of the opinion which I have formed is that the appeal will be heard by a Full Court: see s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth).

Associate:

Dated: 6 October 2006