SZ v Minister for Immigration & Multicultural Affairs [2000] FCA 458

FEDERAL COURT OF AUSTRALIA

SZ v Minister for Immigration & Multicultural Affairs [2000] FCA 458 JURISDICTION – the applicant commenced proceedings in the High Court on his own behalf and as the representative of named persons who were said to have the "same interest" as himself (relying on O 16 r 12 of the High Court Rules), seeking orders nisi directed to the respondents – the represented persons, each of whom had applied to the Minister for a protection visa and had that application refused by a delegate of the Minister, fell into one of two categories: (i) those who could no longer apply to the Refugee Review Tribunal (RRT) for review of that decision because the period specified in s 412(1)(b) of the Migration Act 1958 (Cth) had elapsed; (ii) those who had unsuccessfully applied to the RRT for review and who could no longer apply to the Federal Court for judicial review of the decision of the RRT under Pt 8 of the Migration Act because the period specified in s 478(1)(b) of that Act had elapsed - pursuant to s 44 of the Judiciary Act 1903 (Cth), the High Court remitted to the Federal Court the controversy between the applicant and the respondents and the controversies between each of the represented persons and the respondents (or some of them) - in addition to the prerogative relief, the applicant sought an order that he be at liberty to represent additional persons having the "same interest" by amending the list of represented persons from time to time (under O 6 r 13(1) of the Federal Court Rules), or an order that additional applicants be at liberty to be joined as applicants (under O 6 r 2) - whether the Federal Court had jurisdiction, given that the authorities establish that s 44(1) of the Judiciary Act 1903 (Cth) simply permits remitter to a Court which already had jurisdiction with respect to the subject-matter and the parties, and does not provide it with jurisdiction which it would not otherwise have had - whether the Court had jurisdiction under the Migration Act 1958 (Cth) to make orders in respect of the represented persons in category (i) - whether, even if it had jurisdiction under the Migration Act 1958 (Cth) to make orders in respect of the presently identified represented persons in category (ii), it would, without further remitter, have jurisdiction to make orders in respect of additional persons who it was proposed to add to the list of represented persons or to join as applicants - whether the Court had jurisdiction under s 39B of the Judiciary Act 1903 (Cth) in respect of the determination of the constitutional validity of provisions of the Migration Act 1958 (Cth) PRACTICE AND PROCEDURE - whether, assuming that the Court had jurisdiction and that the representative proceedings could have been properly commenced under O 6 r 13 of the Federal Court Rules, that rule permits the making of an order which would expand the class of persons as representing whom the applicant has commenced the proceedings - if so, whether it would be appropriate to make an order which simply added specified persons or an order which would permit the class to be added to automatically from time to time simply by the filing of an augmented list and an affidavit identifying the additional persons as having the "same interest" as the applicant and represented persons PRACTICE AND PROCEDURE - whether, assuming that the Court had jurisdiction, additional persons could be joined as applicants under O 6 r 2(a) of the Federal Court Rules without leave of the Court – if not, whether the Court ought, in its discretion, to grant leave under O 6 r 2(b) for additional persons to be automatically joined as applicants simply upon the filing of a list of their names and an affidavit identifying them as having the "same interest"