Johnstone v Commonwealth

REASONS FOR JUDGMENT HIS HONOUR: On 26 September 1996 the Refugee Review Tribunal (the Tribunal) affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) not to grant the applicant a protection visa under the Migration Act 1958 (Cth). The applicant then applied to this Court to review the decision of the Tribunal. That application was made under s 476(1) of the Migration Act. On 22 July 1997 the applicant applied to the High Court for orders nisi calling upon the Tribunal and the Minister to show cause why a writ of certiorari should not be issued to remove the decision of the Tribunal into the High Court to be quashed, why a writ of prohibition should not be issued to the Tribunal and the Minister preventing them from acting upon the decision and why a writ of mandamus should not be issued requiring the Tribunal to reconsider the application for a protection visa according to law. The reason why the applicant sought the issue of prerogative writs in the High Court was to avoid the limiting effect of ss 476(2), (3) and (4) of the Migration Act on the grounds on which a decision of the Tribunal may be reviewed when an application for review is made to this Court under s 476(1). The High Court has jurisdiction to review a decision of the Tribunal by reason of s 75(v) of the Constitution. Of course, that jurisdiction is unaffected by the Migration Act. Section 44(1) of the Judiciary Act 1903 enables the High Court to remit to any federal court that has jurisdiction with respect to the subject matter and the parties any matter that is pending in the High Court. In relation to the application for the issue of prerogative writs this Court has jurisdiction, derived from s 79B of the Judiciary Act, the subject matter and the parties. In any event all that is required for an order to be made under s 44(1) is that the Court have jurisdiction "over the same kind of party and the same kind of subject matter as that over which the High Court has jurisdiction": Johnstone v Commonwealth (1979) 143 CLR 398 at 408. On 22 July 1997 the High Court made an order remitting the application for the issue of prerogative writs pending in the High Court to the Federal Court. One consequence of the remitter is to raise this question: in what way does s 485(3) of the Migration Act affect the ability of the Court to deal with the remitted matter? That section provides: "If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903 the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part". It should be noted that the phrase "judicially reviewable decision" is defined in s 475(1) to include any decision of the Tribunal. There is uncertainty about the effect of s 485(3). The applicant contends that word "powers" in s 485(3) is a reference to the relief that may be granted by the Court. It follows, so that applicant says, that in his application for the issue of prerogative writs, the Court is limited to making one or other of the orders set out in s 481 of the Migration Act.. However, the Court is not limited to any particular ground in determining whether a prerogative writ should issue so the applicant contends. The ordinary principles of the common law are to apply. The first thing to observe is that s 481 does not confer any power on the Court to issue a prerogative writ. This creates the dilemma, on the applicant's own argument, that a possible consequence of the remitter is that his application must fail. One answer to this dilemma might be that because s 481 empowers the Court to grant relief in the nature of certiorari, prohibition or mandamus a suitable order might be made under s 481 if the grounds for the issue of a prerogative writ are otherwise made out, notwithstanding that no writ will issue. Another answer might be that the reference to "powers" in s 481 is not a reference to the orders that the Court can make. There is some discussion concerning the difference between the "jurisdiction", "authority" and "powers" of a court in The Broken Hill Proprietary Company Limited v Dagi [1996] 2 VR 117 at 153 to 157. That discussion suggests that the "powers" of a court involves something more than the relief a court may grant. In context it seems likely that the word "powers" is intended to include the grounds upon which the Court is able to review a decision of the Tribunal and is not to be taken as merely dealing with what orders are to be made when it has been shown that an error of law vitiates a decision. However, none of these matters presently require resolution. The applicant did not succeed in his application for review under s 476(1). The reason was that the Court found that the Tribunal had decided the matters referred to it for decision without committing any error of law: see my judgment in Thambythurai & Anor v Minister for Immigration and Multicultural Affairs & Anor (16 September, unreported). It follows that the applicant must also fail in his application for orders nisi. No purpose would be served in requiring the respondents to show cause why prerogative writs should not issue when the Court has already decided, in a different application, that the contentions upon which the applicant relies to obtain the orders nisi will not result in the invalidity of the Tribunal's decision.