Funaki v Minister for Immigration & Multicultural Affairs [2000] FCA 1056

Funaki v Minister for Immigration & Multicultural Affairs [2000] FCA 1056

The Minister's correspondence evidenced a decision not to exercise or consider exercising discretion under s 351 of the Migration Act 1958 (Cth). Such a decision is covered by s 475(2)(e), and s 485(1) removes the Federal Court's jurisdiction in respect of such decisions. The constitutional and treaty grounds were not relevant to the review of that decision and were not properly before the Court, so there was nothing capable of removal to the High Court. The proceeding was therefore dismissed for want of jurisdiction and the motion for removal was dismissed.

Jurisdiction
Australia
Judgment Date
26 July 2000
Procedural Posture
Application for an Order of Review Under Sections 475 and 476 of the Migration Act 1958 (cth), With a Notice of Motion to Remove Constitutional Matters to the High Court / Hearing of Notice of Motion and Objection to Competency
Outcome
Notice of motion dismissed; application dismissed for want of jurisdiction; applicant ordered to pay costs.
Legal Topics
['ministerial Discretion Under S 351 of the Migration Act 1958 (cth)' 'judicially Reviewable Decisions' 'federal Court Jurisdiction' 'removal to the High Court' 'costs']
['citizenship and Migration' 'administrative Law' 'federal Jurisdiction'] ['ministerial Discretion Under S 351 of the Migration Act 1958 (cth)' 'judicially Reviewable Decisions' 'federal Court Jurisdiction' 'removal to the High Court' 'costs']

Case Brief

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Procedural Posture

Application for an Order of Review Under Sections 475 and 476 of the Migration Act 1958 (cth), With a Notice of Motion to Remove Constitutional Matters to the High Court / Hearing of Notice of Motion and Objection to Competency

Legal Issues

  1. 1 ["Whether the Federal Court had jurisdiction to review the Minister's decision not to exercise or consider exercising power under s 351 of the Migration Act 1958 (Cth)." "Whether the applicant's constitutional matters were properly before the Federal Court and capable of removal into the High Court." 'Whether costs should follow the event.']

Ratio Decidendi

The Minister's correspondence evidenced a decision not to exercise or consider exercising discretion under s 351 of the Migration Act 1958 (Cth). Such a decision is covered by s 475(2)(e), and s 485(1) removes the Federal Court's jurisdiction in respect of such decisions. The constitutional and treaty grounds were not relevant to the review of that decision and were not properly before the Court, so there was nothing capable of removal to the High Court. The proceeding was therefore dismissed for want of jurisdiction and the motion for removal was dismissed.

Court Disposition

Notice of motion dismissed; application dismissed for want of jurisdiction; applicant ordered to pay costs.

Orders

  • ["The applicant's notice of motion filed 7 July 2000 be dismissed." "The applicant pay the respondent's costs of the motion." 'The application be dismissed.' "The applicant pay the respondent's costs of the proceedings."]