NARF v Minister for Immigration & Multicultural & Indigenous Affairs

THE COURT: 1 This is an appeal from a decision of Justice Sackville dismissing an application to the Federal Court under s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming the decision of a delegate of the respondent to refuse the appellant a protection visa. The appellant is an infant and these proceedings are brought by his next friend, his mother. The relevant facts and grounds on which review was sought before the primary judge are set out in his Honour's reasons: NARF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 685. (Those reasons are available on the Federal Court's website: www.fedcourt.gov.au.) 2 The notice of appeal contains the following grounds: "1. That Justice Sackville erred in law and findings that the application involved constitutional issues as outlined in the notice under s 78B of the Judiciary Act 1903 involved error of law. 2. That Justice Sackville erred in law that the decision by the respondent to detain the applicant indefinitely is contrary to the best interests of the Child under UN Convention which was affirmed by Australia. 3. That the Federal Court have a broad fiefdom for the welfare of children to hear the matter or transfer the application to the Family Court under provisions of the Administrative Judicial Review Act (Cth). 4. The appellant wishes to issue a notice pursuant to section 78B of the Judiciary Act 1903." 3 Although directed by the Court to file a written outline of the submissions the appellant wished to make in support of his appeal, none have been filed on his behalf but he has appeared by his next friend before the Court today. 4 The first ground of appeal in the notice of appeal relates to whether the matter involves a constitutional issue. The primary judge noted in his reasons (at [8]) that the application purported to identify a constitutional issue. The grounds set out in the application filed on 2 June 2003 were as follows: "1. The decision involved section 78B Judiciary Act 1903. 2. The Constitution banned Parliament from legislation so as to unreasonably interfere with the judiciary power of the Commonwealth. 3. It is unconstitutional for the Commonwealth to enact legislation in the form of Migration Act ss 474, 475 and 476 having an unjust effect on individuals and citizens of Australia." 5 The primary judge was correctly of the view that the appellant had not put forward a genuine constitutional argument, and that it was insufficient for a party to assert a belief that the litigation involves a matter arising under the Constitution for the purposes of s 78(1) of the Judiciary Act: see NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 390. This ground of appeal must fail. 6 The second ground of appeal asserts an argument that the indefinite detention of the appellant is not in his best interests to be considered under the "UN Convention", presumably the United Nations Convention on the Rights of the Child, 1989. This argument was not raised before the primary judge. The application for review relates to the decision of the delegate of the respondent to refuse the appellant a protection visa. The lawfulness or otherwise of the detention of the appellant is not in issue before this Court. It follows that this ground of appeal must fail. 7 The third ground of appeal seems to suggest that the primary judge should have transferred the application to the Family Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). This ground of appeal is misconceived. The Federal Court has power, pursuant to s 18A of the ADJR Act, to transfer an application brought under the ADJR Act to the Family Court. However, this application was brought under the Judiciary Act. The Family Court does not have jurisdiction under the provisions of the Judiciary Act. It follows that this ground of appeal must also fail. 8 The final ground states the appellant wishes to issue a notice pursuant to s 78B of the Judiciary Act. This is not a ground upon which the Court could provide relief, and for the reasons given in [5], it is not necessary for the notices pursuant to s 78B(1) to be issued. 9 We have read the reasons of the learned primary judge. His Honour carefully considered the arguments that were said to give rise to questions of law. He concluded that they did not make out any legal error and that there was no basis for him to interfere with the decision of the Tribunal. 10 Before us the appellant's mother tendered two documents. Counsel for the Minister objected to the tender on the ground of relevance. The first document was dated 31 October 2003 and is a consent to the appellant being held in the custody of the appellant's mother's sister, an Australia citizen, until the appellant's parents' release from immigration detention. The second document is dated 7 November 2003 and is an application on behalf of the appellant and his parents for a decision by the Minister under s 417 of the Migration Act 1958 (Cth). 11 We agree with counsel that these documents are not relevant to the case before us, which is only concerned with the correctness of the primary judge's decision. 12 The appellant's mother also said that she saw no reason why her two children, the appellant and his sister, now aged 10, should not be able to live in Australia since they were born here. In fact, as counsel informed us, the appellant's sister has now become an Australian citizen by virtue of the operation of s 10 of the Australian Citizenship Act 1948 (Cth), she having been born in Australia and having remained here for 10 years. However these facts do not affect the question before the primary judge and before us, which is whether the Tribunal had made a jurisdictional error in concluding that the appellant was not a refugee within the meaning of the Convention.