Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1186

Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1186

The applicants were transitory persons and unlawful non-citizens, so their protection visa applications were not valid by operation of s 46B. Section 46B was plainly supported by the immigration power and, in any event, by the aliens power. There was no enforceable domestic legal obligation on the executive to consider Refugees Convention claims outside the statutory framework. The proceedings related to removal of transitory persons from Australia and were barred in the Federal Court by s 494AB, leaving any constitutionally entrenched original jurisdiction to the High Court. Accordingly the Court lacked jurisdiction and, in any event, no arguable case justified interlocutory relief.

Jurisdiction
Australia
Judgment Date
20 September 2002
Procedural Posture
Migration Judicial Review Application Seeking Writs of Mandamus, Certiorari, Prohibition and Injunctive Relief Under S 39 B of the Judiciary Act 1903 (cth) / Urgent Application for Interlocutory Relief to Restrain Removal From Australia; Application Dismissed for Want of Jurisdiction and No Arguable Case
Outcome
Claim for interlocutory relief dismissed; application dismissed; applicants ordered to pay the respondents' costs.
Legal Topics
['protection Visas' 'transitory Persons' 'unlawful Non Citizens' 'interlocutory Injunctions' 'federal Court Jurisdiction' 'refugees Convention Obligations' 'executive Power' 'validity of Visa Applications']
['migration' 'constitutional Law' 'administrative Law'] ['protection Visas' 'transitory Persons' 'unlawful Non Citizens' 'interlocutory Injunctions' 'federal Court Jurisdiction' 'refugees Convention Obligations' 'executive Power' 'validity of Visa Applications']

Case Brief

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Procedural Posture

Migration Judicial Review Application Seeking Writs of Mandamus, Certiorari, Prohibition and Injunctive Relief Under S 39 B of the Judiciary Act 1903 (cth) / Urgent Application for Interlocutory Relief to Restrain Removal From Australia; Application Dismissed for Want of Jurisdiction and No Arguable Case

Legal Issues

  1. 1 ['Whether the applicants were transitory persons for the purposes of the Migration Act 1958 (Cth) as amended by the Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth).' "Whether s 46B of the Migration Act 1958 (Cth) rendered the applicants' protection visa applications invalid." 'Whether s 46B was a valid law with respect to immigration or aliens.' 'Whether the applicants were unlawful non-citizens despite having been brought to Australia for the purpose of giving evidence in criminal proceedings.' 'Whether the Commonwealth or Minister was legally obliged to consider applications for protection under the Refugees Convention outside the statutory visa framework.' "Whether s 494AB barred the Federal Court from entertaining the proceedings relating to the applicants' removal from Australia." "Whether interlocutory injunctive relief should be granted to prevent the applicants' removal from Australia."]

Ratio Decidendi

The applicants were transitory persons and unlawful non-citizens, so their protection visa applications were not valid by operation of s 46B. Section 46B was plainly supported by the immigration power and, in any event, by the aliens power. There was no enforceable domestic legal obligation on the executive to consider Refugees Convention claims outside the statutory framework. The proceedings related to removal of transitory persons from Australia and were barred in the Federal Court by s 494AB, leaving any constitutionally entrenched original jurisdiction to the High Court. Accordingly the Court lacked jurisdiction and, in any event, no arguable case justified interlocutory relief.

Court Disposition

Claim for interlocutory relief dismissed; application dismissed; applicants ordered to pay the respondents' costs.

Orders

  • ['The claim for interlocutory relief is dismissed.' 'The application is dismissed.' "The applicants are to pay the respondents' costs of the application."]