Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368

Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368

The proposed removal of the applicant under s 198(6) of the Migration Act 1958 (Cth) was a privative clause decision, or if jurisdictional error were properly alleged a purported privative clause decision. The reasonable practicability of removal was not a jurisdictional fact; paragraphs 21, 22 and 23 merely alleged that removal was not reasonably practicable and did not plead an arguable jurisdictional error. Section 476A deprived the Federal Court of original jurisdiction in relation to the migration decision, including the attempt to restrain removal as a tort, and accrued jurisdiction could not be used to hear a federal claim excluded from the Court's original jurisdiction. Paragraphs...

Jurisdiction
Australia
Judgment Date
20 October 2006
Procedural Posture
Application Under S 39 B of the Judiciary Act 1903 (cth) Seeking Injunctions and Damages Concerning Immigration Detention and Proposed Removal From Australia / Second Respondent's Notice of Motion to Strike Out Paragraphs of the Third Amended Statement of Claim, Summarily Dismiss the Second Injunction Claim and Discharge an Interlocutory Injunction; Respondents Also Sought Extension of Time for a Notice of Objection to Competency
Outcome
Paragraphs 21, 22, 23 and 24 of the third amended statement of claim were struck out; the Court granted leave for further submissions as to any other orders.
Legal Topics
['unlawful Non Citizens' 'detention Pending Removal' 'removal Under S 198 of the Migration Act 1958 (cth)' 'privative Clause Decision' 'jurisdictional Fact' 'jurisdictional Error' 'federal Court Jurisdiction Under S 476 a of the Migration Act 1958 (cth)' 'accrued Jurisdiction' 'strike Out and Summary Dismissal']
['immigration' 'administrative Law' 'federal Jurisdiction' 'tort'] ['unlawful Non Citizens' 'detention Pending Removal' 'removal Under S 198 of the Migration Act 1958 (cth)' 'privative Clause Decision' 'jurisdictional Fact' 'jurisdictional Error' 'federal Court Jurisdiction Under S 476 a of the Migration Act 1958 (cth)' 'accrued Jurisdiction' 'strike Out and Summary Dismissal']

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Procedural Posture

Application Under S 39 B of the Judiciary Act 1903 (cth) Seeking Injunctions and Damages Concerning Immigration Detention and Proposed Removal From Australia / Second Respondent's Notice of Motion to Strike Out Paragraphs of the Third Amended Statement of Claim, Summarily Dismiss the Second Injunction Claim and Discharge an Interlocutory Injunction; Respondents Also Sought Extension of Time for a Notice of Objection to Competency

Legal Issues

  1. 1 ['Whether proposed removal of the applicant from Australia under s 198(6) of the Migration Act 1958 (Cth) was a privative clause decision within s 474 of that Act.' 'Whether the reasonable practicability of removal was a jurisdictional fact to be finally determined by the Court.' 'Whether paragraphs 21, 22 and 23 of the third amended statement of claim disclosed an arguable jurisdictional error.' 'Whether s 476A of the Migration Act 1958 (Cth) deprived the Federal Court of original jurisdiction in relation to claims challenging or restraining the proposed removal, including a claim framed in tort.' "Whether the Court's accrued jurisdiction could extend to a federal migration claim removed from the Court's original jurisdiction by s 476A."]

Ratio Decidendi

The proposed removal of the applicant under s 198(6) of the Migration Act 1958 (Cth) was a privative clause decision, or if jurisdictional error were properly alleged a purported privative clause decision. The reasonable practicability of removal was not a jurisdictional fact; paragraphs 21, 22 and 23 merely alleged that removal was not reasonably practicable and did not plead an arguable jurisdictional error. Section 476A deprived the Federal Court of original jurisdiction in relation to the migration decision, including the attempt to restrain removal as a tort, and accrued jurisdiction could not be used to hear a federal claim excluded from the Court's original jurisdiction. Paragraphs...

Court Disposition

Paragraphs 21, 22, 23 and 24 of the third amended statement of claim were struck out; the Court granted leave for further submissions as to any other orders.

Orders

  • ['Paragraphs 21, 22, 23 and 24 of the third amended statement of claim dated 28 March 2006 be struck out.' 'The parties have leave, if so advised, to make further submissions as to any other orders which should be made in light of these reasons.']