BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221

FEDERAL COURT OF AUSTRALIA

BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221

IMMIGRATION – Tribunal originally refused applicant's claim for protection visa based on fear of persecution in native Pakistan due to Christian religious beliefs – thereafter complex course of litigation pursued – initial application to Federal Court challenged Tribunal decision solely under s 476(1)(e) of Migration Act – asserted that Tribunal decision involved error of law being an incorrect application of law to facts as found – application for review so framed dismissed – further proceedings then instituted in original jurisdiction of High Court under s 75(v) of Constitution seeking constitutional writs – those proceedings still on foot albeit that single judge of High Court remitted part of proceedings to Federal Court – in remitted proceedings appellant sought to argue point not raised before original primary judge that Tribunal decision so unreasonable that no reasonable person could form that view so as to constitute jurisdictional unreasonableness – primary judge in remitter proceedings dismissed application, inter alia on ground that questions as to errors of jurisdictional fact not reviewable under s 476(2) of Act following earlier Full Federal Court decision in Gamaethige – also held that appellant estopped from arguing jurisdictional error because of Anshun principal – then followed present Appeal to Full Court – whether "special circumstances" exist to permit of departure from Anshun principle so as to allow argument on the jurisdictional error point – whether Full Court decision in Gaemethige to be followed - appeal dismissed. Migration Act 1958 (Cth) subss 476(1)(e), 476(2)(b) Constitution s 75(v) Judiciary Act 1903 (Cth) s 44 "BC" v Minister for Immigration and Multicultural Affairs [2001] FCA 393 referred to BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669 referred to Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 59 followed House v R (1936) 55 CLR 499 referred to Port of Melbourne Authority v Anshun (No 2) [1981] VR 81 applied Henderson v Henderson (1843) 3 Hare at 115 cited Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 referred to Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to Stuart v Sanderson (2000) 100 FCR 150 considered