Milne v Minister for Immigration

[2009] FMCA 462

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MILNE & ANOR v MINISTER FOR IMMIGRATION [2009] FMCA 462

PRACTICE & PROCEDURE – Transfer to Federal Court.

Australian Citizenship Act 2007
Migration Act 1958, s.476
Federal Magistrates Act 1999, s.39
Federal Magistrates Court Rules 2001, r.8.02

First Applicant: LLOYD WESTBROOKE MILNE

Second Applicant: KATHIMA KINGWONGSA

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 783 of 2009

Judgment of: Cameron FM

Hearing date: 27 April 2009

Date of Last Submission: 27 April 2009

Delivered at: Sydney

Delivered on: 27 April 2009

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Pursuant to s.39 of the Federal Magistrates Act 1999 and r.8.02 of the Federal Magistrates Court Rules 2001 these proceedings be transferred to the Federal Court of Australia at Sydney.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 783 of 2009

LLOYD WESTBROOKE MILNE

First Applicant

KATHIMA KINGWONGSA

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. There are two matters before the Court at the moment arising out of the application which was filed on 3 April 2009. The first is the refusal by the respondent to grant citizenship to the second applicant. The second is the refusal of the Minister’s department to accept as valid the second applicant’s application for a partner visa. This was rejected on 13 March 2009 because, as the departmental letter which is Annexure X-103 to the affidavit of the first applicant filed on 3 April 2009 says, it was not accompanied by the appropriate “Visa Application Charge”.

2. Although Mr Milne has made strenuous submissions to the Court about how the decision made concerning his partner’s application for citizenship has a migration quality, it remains, nevertheless, an application under the Australian Citizenship Act 2007. The material contained in Mr Milne’s affidavit makes it clear that the decision in relation to the second applicant’s citizenship application was indeed a decision under the Australian Citizenship Act.  That is not an Act in respect of which this Court has any jurisdiction.

3. The Court’s jurisdiction is provided under various Federal statutes and, unless a Federal statute has said that this Court has jurisdiction in relation to a particular matter, the Court does not have power.  The Federal Court, whose jurisdiction is much wider than this Court’s, would be able to consider this sort of application, but this Court has no power to.

4. The application cannot proceed further in this Court as far as the citizenship matter is concerned as the Court has no jurisdiction to entertain it.

5. As to the application for a partner visa, it is unclear at this preliminary stage whether the Court has jurisdiction or not. Ms Johnson has, on behalf of the Minister, submitted that the rejection of a visa application because it did not meet the necessary statutory criteria for validity could not be a migration decision as that term is understood under the Migration Act 1958.

6. The Court’s jurisdiction under the Migration Act is described and circumscribed by s.476 and it is only in respect of matters which fall within the provisions of that section that the Court has any powers under the Migration Act.  At this point, I cannot be satisfied one way or the other whether the Court has jurisdiction to entertain the application as far as it relates to the rejection of the partner visa application.

7. If the matter is to proceed further in this Court it can only proceed as far as the partner visa matter is concerned and directions will have to be made for the applicants to attempt to satisfy me that the Court does indeed have jurisdiction before the matter could proceed beyond a preliminary stage. That seems to present the applicants with a choice.  Do they consider that the matter ought to be transferred to the Federal Court for the citizenship matter to be considered at the same time as the potential migration matter, or are they content for the application to be dismissed as far as the citizenship application is concerned and for the Court to proceed to determine whether or not it has jurisdiction in respect of the partner visa issue?

   RECORDED:   NOT TRANSCRIBED

8. As I concluded earlier that the Court is not competent to deal with the principal aspect of the application which has been brought to it by the applicants and that there is doubt concerning whether the Court has jurisdiction to consider the second matter which the application raises with this Court, the applicants have applied for the matter to be transferred from this Court to the Federal Court.

9. It appears to me that it would be in the interests of the administration of justice that the applicants be permitted to ventilate their claims in a court which has jurisdiction to entertain them.  Of course, in saying this, I make no observations on the strength or weakness or potential success or otherwise of the applications, simply that the applicants are entitled to have their claims heard. The fact that they filed in a Court which has no jurisdiction to entertain at least one aspect of the application should not deny them their right to have the decisions reviewed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  15 May 2009