SZ v Minister for Immigration & Multicultural Affairs [2000] FCA 836

SZ v Minister for Immigration & Multicultural Affairs [2000] FCA 836

Power to grant or refuse a protection visa under s 65(1)(b), and to affirm such a refusal by the Tribunal under s 415(2)(a), is not judicial power but administrative in nature; nothing in the Migration Act or the referenced provisions confers judicial power contrary to Chapter III of the Constitution.

Jurisdiction
Australia
Judgment Date
22 June 2000
Procedural Posture
Special Case Stated for the Full Court; Judicial Review / Judgment on Reserved Constitutional Questions
Outcome
Constitutional challenge dismissed; questions reserved answered 'No' to both.
Legal Topics
['separation of Powers' 'judicial Power' 'validity of Statutory Provisions' 'executive Discretion' 'refugee Status Determination']
['constitutional Law' 'migration Law' 'administrative Law'] ['separation of Powers' 'judicial Power' 'validity of Statutory Provisions' 'executive Discretion' 'refugee Status Determination']

Case Brief

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Procedural Posture

Special Case Stated for the Full Court; Judicial Review / Judgment on Reserved Constitutional Questions

Legal Issues

  1. 1 ['Whether paragraph 65(1)(b) of the Migration Act 1958 (Cth) is invalid as conferring judicial power contrary to Chapter III of the Constitution' 'Whether paragraph 415(2)(a) of the Migration Act 1958 (Cth), as it applies to a decision to refuse a protection visa, is invalid as conferring judicial power contrary to Chapter III of the Constitution' 'Whether the Migration Act confers a right to enter or remain in Australia to a person to whom Australia owes protection obligations' 'Whether the Refugees Convention is incorporated into Australian law']

Ratio Decidendi

Power to grant or refuse a protection visa under s 65(1)(b), and to affirm such a refusal by the Tribunal under s 415(2)(a), is not judicial power but administrative in nature; nothing in the Migration Act or the referenced provisions confers judicial power contrary to Chapter III of the Constitution.

Court Disposition

Constitutional challenge dismissed; questions reserved answered 'No' to both.

Orders

  • ['The questions reserved for the Full Court are answered: (1) Paragraph 65(1)(b) is not invalid as conferring judicial power contrary to Chapter III of the Constitution. (2) Paragraph 415(2)(a), in so far as it applies to a decision to refuse to grant a protection visa, is not invalid as conferring judicial power...