MZXOT v Minister for Immigration and Citizenship [2008] HCA 28

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

MZXOT PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND CITIZENSHIP DEFENDANT

MZXOT v Minister for Immigration and Citizenship [2008] HCA 28

18 June 2008

M36/2007

ORDER

The questions reserved in the case stated dated 8 November 2007 be answered as follows:

Q1. Is the effect of sections 476, 476A, 476B and 484 of the Act, read with the definition of "migration decision" in sections 5, 5E and 474, that the only Court that can hear and determine an application for any or all of:

(a) the constitutional writs of prohibition and mandamus;

(b) the constitutional remedy of injunction against an officer of the Commonwealth;

(c) the public law remedy of certiorari;

(d) the public law remedy of declaration in a suit against the Commonwealth or a person being sued on behalf of the Commonwealth,

in respect of a "primary decision" (as defined in s 476(4)), is the High Court of Australia?

A. Yes.

Q2. If the answer to Question 1 is "Yes", are any or all of sections 476, 476A, 476B and 484 of the Act invalid:

A. because they curtail, limit or impair, either directly or as a matter of practical effect, the constitutional role of this Court?

B. because they curtail, limit or impair, either directly or as a matter of practical effect, the right or ability of applicants to seek the relief identified in paragraphs (a)-(d) of Question 1?

A. Unnecessary to answer.

Q3. If the answer to Question 1 is "Yes", are any or all of sections 476, 476A, 476B and 484 of the Act, and/or sections 38(e) and 39(1) of the Judiciary Act 1903 (Cth) invalid in so far as they apply to "migration decisions" (as defined):

A. because they are contrary to an implied power of this Court to remit to another court an application commenced in this Court for the relief identified in paragraphs (a)-(d) of Question 1?