Buultjens v Robertson [2010] FCA 134 (16 February 2010)

Last Updated: 25 February 2010

FEDERAL COURT OF AUSTRALIA

Buultjens v Robertson [2010] FCA 134

Citation:		Buultjens v Robertson [2010] FCA 134
Appeal from:		Application for leave to appeal: Buultjens v Robertson [2009] FCA 1537
Parties:		LLEWELLYN FREDRICK BUULTJENS v STUART ROBERTSON
File number(s):		VID 6 of 2010
Judge:		GRAY J
Date of judgment:		16 February 2010
Legislation:		Administrative Decisions (Judicial Review) Act 1977 (Cth), s 8 Australian Courts Act 1828 (UK), ss 20, 21, 22 Commonwealth of Australia Constitution Act, ss 51, 52, 58, 59, 75(v), 76, 76(ii), 77, 77(i), 118 Criminal Code Act 1995 (Cth), ss 268.10, 268.11, 268.12, 268.13 Federal Court of Australia Act 1976 (Cth), ss 24(1A), 31A Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), ss 5(1), 5E, 351, 351(1), 351(3), 351(7), 474(2), 474(3), 474(4), 474(5), 474(6), 476A, 476A(1)
Cases cited:		Buultjens v Robertson [2009] FCA 1537 cited Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 applied
Date of hearing:	16 February 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	22
Counsel for the appellant:	The appellant appeared unrepresented
Counsel for the respondent:	Mr N Rogers
Solicitor for the respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 6 of 2010

BETWEEN:	LLEWELLYN FREDRICK BUULTJENS Appellant
AND:	STUART ROBERTSON Respondent

JUDGE:	GRAY J
DATE OF ORDER:	16 FEBRUARY 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.
2. The appellant pay the respondent’s costs of the application.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 6 of 2010

BETWEEN:	LLEWELLYN FREDRICK BUULTJENS Appellant
AND:	STUART ROBERTSON Respondent

JUDGE:	GRAY J
DATE:	16 FEBRUARY 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application by notice of motion, filed on 15 January 2010, seeking leave to appeal from a judgment of a single judge of the Court, given on 18 December 2009. A notice of appeal from that judgment was filed by the appellant on 11 January 2010. The judgment was an interlocutory judgment, dismissing the appellant’s application to the Court at first instance, on the ground that the application was incompetent. The learned primary judge held that the application did not fall within the jurisdiction of this Court, because of the operation of s 476A of the Migration Act 1958 (Cth) (“the Migration Act”). See Buultjens v Robertson [2009] FCA 1537.
2. The proceeding at first instance was commenced by filing an application on 26 November 2009. That application sought an order under s 75(v) of the Constitution in the nature of a writ of mandamus, directed to the respondent, Stuart Robertson, Branch Manager, Ministerial Intervention Unit, Department of Immigration and Citizenship, directing him to submit to the Minister for Immigration and Citizenship (“the Minister”) an application by the appellant for a decision of the Minister under s 351 of the Migration Act. The application invoked the jurisdiction of the Court pursuant to s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), and s 75(v) of the Constitution.
3. Section 351 of the Migration Act provides relevantly as follows:
   

(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
...

(3) The power under subsection (1) may only be exercised by the Minister personally.
...

(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

4. It appears from the material filed in support of the application that the appellant had been unsuccessful in an application for a visa that would permit him to remain in Australia. He had applied for the exercise of the power of the Minister conferred by s 351(1) of the Migration Act. The respondent had made a recommendation that the Minister intervene in the case and exercise that power in the favour of the appellant. The Minister had declined to intervene.
5. In the proceeding at first instance, the respondent filed a notice of objection to competency on 14 December 2009. It was that notice of objection to competency that the primary judge dealt with on 18 December 2009. In his reasons for judgment, the primary judge dealt with the objection to competency on the basis that the application was not within the jurisdiction of the Court, because of the operation of s 476A of the Migration Act. His Honour held that the decision sought to be challenged was not one referred to in s 476A(1), and therefore the objection to competency was made out. His Honour dismissed the proceeding pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), on the ground that the appellant had no reasonable prospect of successfully prosecuting the proceeding. His Honour also ordered that the appellant pay the respondent’s costs.
6. As the judgment at first instance was not one made on the merits of the case, but on a notice of objection to competency, it is an interlocutory judgment. Section 24(1A) of the Federal Court Act provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a judge gives leave to appeal. The test normally applied to determine whether leave to appeal from an interlocutory judgment should be granted is that taken from Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 399. First, the appeal must be attended with sufficient doubt as to warrant its reconsideration by a Full Court. Second, and in addition, the judgment must be such that, if it should be wrong and leave to appeal were not granted, substantial injustice would follow.
7. It is clear that the primary judge was correct to hold that the proceeding at first instance was not within the jurisdiction of the Court, by reason of s 476A of the Migration Act. Subsection (1) of that section excludes the jurisdiction of the Court under any other law, including s 39B of the Judiciary Act and s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and confers original jurisdiction on this Court in relation to a “migration decision” if, and only if, the decision is one of four kinds listed in that subsection. To determine what is a migration decision, it is necessary to go to s 5(1) of the Migration Act. The definition of “migration decision” has three elements: a privative clause decision; a purported privative clause decision; and a non-privative clause decision. Each of those terms is, in turn, defined. The definition of non-privative clause decision refers the reader to s 474(6) of the Migration Act. The definition of privative clause decision refers the reader to s 474(2). The definition of purported privative clause decision refers the reader to s 5E of the Migration Act.
8. By s 474(2) of the Migration Act, a privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under the Migration Act, or under a regulation or other instrument made under the Migration Act (whether in the exercise of a discretion or not), other than a decision referred to in subss (4) or (5). Subsection (3) gives an expansive definition of “decision”, which includes, in para (b), refusing to give a certificate, direction, approval, consent or permission, including a visa, and, in para (j), a failure or refusal to make a decision. The list of decisions in s 474(4) that are not privative clause decisions does not include any reference to a decision made, or required to be made, under s 351. By s 474(6), a decision mentioned in s 474(4), or specified in regulations made under s 474(5), is a non-privative clause decision. By s 5E of the Migration Act, a purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made under the Migration Act, or a regulation or other instrument made under the Migration Act (whether in purported exercise of a discretion or not) that would be a privative clause decision if there were not either a failure to exercise jurisdiction, or an excess of jurisdiction, in the making of the decision. Subsection (2) of s 5E defines the word “decision” for the purposes of that section as including anything listed in s 474(3).
9. Applying these complex definitions to the provisions of s 476A makes it clear that what the appellant sought in the proceeding at first instance was relief under s 39B of the Judiciary Act in respect of a decision made under the Migration Act, even if what he was complaining about was the failure to make a decision. It is clear that s 476A of the Migration Act excluded such a decision from those in respect of which this Court has original jurisdiction. By a combination of ss 77(i) and 76(ii) of the Constitution, it is clear that the Parliament has legislative power to make laws defining the jurisdiction of this Court arising under any laws made by the Parliament. There can be no issue of the constitutional validity of s 476A in terms of legislative power.
10. The principal argument that the appellant has put in relation to the application for leave to appeal invokes an Imperial Act, the Australian Courts Act 1828 (UK) (“the Australian Courts Act”). The appellant says that he countered the notice of objection to competency in the proceeding at first instance by seeking from the respondent discovery of documents, which would reveal whether there had been compliance with s 22 of the Australian Courts Act in respect of the Act by which s 476A was inserted in the Migration Act. There are a number of difficulties with this argument.
11. Section 22 of the Australian Courts Act requires that “every Law or Ordinance so to be made as aforesaid”, within seven days from its date be transmitted by “the Governors of the said Colonies respectively to the said Supreme Courts, to be there enrolled and recorded”, and provides that those laws and ordinances should take effect at the expiration of 14 days from the enrolment, subject to whatever the King might do. The reference to a “Law or Ordinance so to be made as aforesaid” appears to be a reference to laws and ordinances resulting from the exercise of the powers conferred by ss 20 and 21 of the Australian Courts Act. By s 20, the King was empowered to constitute and appoint legislative councils, in the colonies of New South Wales and Van Diemens Land respectively. Section 21 conferred certain legislative powers on those legislative councils, being powers to make laws and ordinances for the peace, welfare and good government of those two colonies respectively.
12. It is extremely difficult to see how, in its own terms, the Australian Courts Act could have any impact on the legislative process of the Commonwealth of Australia under the Constitution. In its own terms, the Australian Courts Act is restricted to laws or ordinances to be made by the legislative councils to be appointed by the King for New South Wales and Van Diemens Land, in the exercise of powers to make laws for the peace, welfare and good government of those two colonies. Counsel for the respondent has advised me that the relevant provisions were repealed in the colony of Victoria by subsequent legislation. Whether they have also been repealed elsewhere is something that I do not know at present. It does seem clear, however, that, even if it could be said that the provisions of the Australian Courts Act, in their terms, were capable of applying to legislation passed by the Parliament of the Commonwealth of Australia, to that extent, they would have been repealed impliedly by the provisions of the Constitution. The legislative powers of the Parliament of the Commonwealth are conferred by ss 51 and 52 of the Constitution. Section 58 of the Constitution makes provision for the assent by the Governor-General, and s 59 makes provision for the Queen to disallow any law. It is impossible to see how some requirement could be construed as resulting from the Australian Courts Act, that every Act passed according to the provisions of the Constitution should then be enrolled in some State Supreme Court before it could be valid. It could not be determined in which State Supreme Court the enrolment should take place.
13. The appellant contended that the provisions of the Australian Courts Act were imported into the Constitution by s 118. Section 118 provides that:
    

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.

It is difficult to see how that provision could be stretched to making an Imperial Act, applicable to two colonies, binding upon the legislature of the Commonwealth. The provision itself requires only recognition of the laws of the States to the extent to which they apply. It does not expand the operation of those laws.

14. The appellant urged me to adjourn the hearing of his application for leave to appeal, to give him more time to mount an argument that would justify investigation of the effect of s 22 of the Australian Courts Act. Such an adjournment is not appropriate. There would be no chance that the appellant could make good the argument that s 476A of the Migration Act may have no validity in consequence of the operation of s 22 of the Australian Courts Act.
15. It should also be said that the appellant’s attempt to establish a failure to comply with s 22 of the Australian Courts Act, by seeking discovery against the respondent, could not have been successful. It is difficult to see how one officer in the Department of Immigration and Citizenship could have access to the necessary documents, so as to be able to assist in the proof of facts relevant to that argument.
16. This Court is required to accept the validity of a provision of a Commonwealth statute, unless it is shown that that provision is beyond the constitutional competence of the legislature. There has been no attempt by the appellant to demonstrate such invalidity in respect of s 476A of the Migration Act. As I have said, that provision has its basis very clearly in the provisions of ss 76 and 77 of the Constitution.
17. To some extent, the appellant bases his case on the provisions of ss 268.10, 268.11, 268.12 and 268.13 of the Criminal Code Act 1995 (Cth). Those provisions all have, as a common element, the requirement that the conduct of the perpetrator be committed “intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.” Quite apart from the fact that the application at first instance invoked no criminal jurisdiction, it is impossible to see how the absence of a decision in favour of the appellant, under the provisions of the Migration Act, could be said to be part of a widespread or systematic attack directed against a civilian population.
18. Sadly, the appellant’s case at first instance appeared to have no substance whatsoever, particularly as the powers given to the Minister under s 351 of the Migration Act were not the subject of any duty requiring their exercise, by virtue of s 351(7). The appellant’s contention that the respondent’s recommendation to the Minister that a visa be granted entitled the appellant to the grant of a visa, as the Department of Immigration and Citizenship had thereby decided that he was so entitled. This argument must fail in light of s 351(3) of the Migration Act, under which the decision is one for the Minister personally.
19. For these reasons, I am satisfied that there is no doubt about the correctness of the judgment of the primary judge. For the same reasons, I am also satisfied that there would be no substantial injustice if the appellant were unable to pursue his case if it should turn out that his Honour’s decision was wrong. It follows that the application for leave to appeal must be dismissed.
20. Counsel for the respondent has sought an order that the appellant pay the respondent’s costs of the application for leave to appeal. The usual principle is that costs follow the event. Applying that principle, normally an order for costs in favour of the successful respondent would be made. The only argument that the appellant has advanced against this is that he does not have the means to meet an order for costs. Ordinarily the fact that an unsuccessful litigant is impecunious is not regarded as a bar to ordering costs.
21. I am also conscious that if an order for costs is made and the appellant does not pay it there may be difficulties for him if he should leave Australia and seek to return. Such difficulties should not necessarily be a bar to the making of an order for costs following the usual principle. I therefore propose to order that the appellant pay the respondent’s costs of the application.
22. The orders of the Court are:

1. The application for leave to appeal be dismissed.

2. The appellant pay the respondent’s costs of the application.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 23 February 2010