Andreola v Director of Public Prosecutions

The Court's jurisdiction 22 This is not to say, however, that the Court has jurisdiction to deal with the applicant's application. The applicant says that he is in this Court because the statute with which he is dealing is a federal statute. Ordinarily, it may be right for him to say that he is entitled to enforce a federal statute in this Court. There are difficulties peculiar to the Migration Act in relation to that. 23 In the first case, consideration must be given to the nature of the provisions relating to criminal justice certificates, and to criminal justice visas. After reciting and recounting those provisions in Goldie v Commonwealth of Australia[2002] FCA 261 at [36], French J said: "These provisions are enacted in the public interest in the administration of criminal justice. They are, on the face of it, not intended to create any rights or privileges on the part of the unlawful non-citizen". I respectfully agree with that characterisation of the provisions. The applicant, as I understand his case, sees himself as coming to the Court to enforce the undertaking that was given on 17 April. Whatever might be the force or effect of such an undertaking, it was plainly not given to the applicant. Not being the recipient of it, he does not have any right to enforce it. Nor can it be said that the certificate of the same date was given to the applicant, in the sense that he would have some contractual or similar right to enforce its terms so far as they bear upon him. 24 The applicant must be thrown back to the jurisdiction of the Court in relation to decisions that are made under the Migration Act. The first difficulty that the applicant has in that regard is in identifying a decision. Counsel for the Director of Public Prosecutions contends that no decision has been made not to pay any expenses to the applicant. The Office of Public Prosecutions is waiting for the provision of information from the applicant before it makes such a decision. It may be that, in any event, for the purposes of the Migration Act there is considered to be a decision. I note that s 474(3)(g) includes in the definition of "decision" for the purposes of that section a reference to "doing or refusing to do any other act or thing". It is s 474 that makes the applicant's position extremely difficult, at least insofar as it might depend upon any decision made since 2 October 2001, when the section in its present form came into operation. That section sets up a notion of a privative clause decision, being a decision of an administrative character made, proposed to be made or required to be made under the Migration Act, other than certain listed decisions in subs (4) or decisions specified by the regulations pursuant to subs (5). Given the extended meaning of decision, it may be that anything done or not done in relation to the applicant is caught by the definition of privative clause decision. Section 474(1) provides that such a decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 25 Subsequent provisions, notably s 475A and s 476 indicate that this Court has some jurisdiction in relation to decisions made by review tribunals under the Migration Act and certain other decisions in which the Court's jurisdiction is not expressly excluded by s 476. In most cases, the exclusions relate to primary decisions. The limits of the Court's jurisdiction are currently a matter of controversy and a special Full Court has been designated to deal with that issue next Monday. I am not, therefore, in a position to make any sort of final pronouncement upon the limits of that jurisdiction. It does seem, however, that whatever decision the applicant might rely upon, he will have difficulty bringing it within any current jurisdiction of the Court under the Migration Act. So far as the Migration Act prior to 2 October 2001 is concerned, if any application were to be made in respect of any decision at that time, issues of the time for making the application would undoubtedly arise. So also would issues as to whether the decision concerned came within what were then very restrictive provisions about the jurisdiction of the Court to engage in judicial review. 26 In my view, the applicant has failed to show that there is any matter before the Court in respect of which the Court has jurisdiction.