High Court of Australia

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

211 CLR 476; 77 ALJR 454; 195 ALR 24

4 Feb 2003

Case Number: S157/2002

Before

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ

Catchwords

Statutes – Construction - Privative clauses - Whether the decision by the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing the plaintiff's application for a protection visa is a "privative clause decision" within s 474 of the Migration Act 1958 (Cth) ("the Act") - Whether s 474(1) of the Act is construed as ousting judicial review by the High Court.

Constitutional Law (Cth) – Whether s 474 and s 486A of the Act are invalid - Whether s 474(1)(c) of the Act is directly inconsistent with s 75 of the Constitution - Whether s 474(1)(a) and (b) of the Act are inseparable from s 474(1)(c) of the Act and are consequently invalid - Whether s 486A of the Act will apply to a "decision" when there has been jurisdictional error - Whether s 486A of the Act is a law incidental to the legislative power conferred by ss 51(xix), (xxvii), (xxix) of the Constitution - Whether s 486A of the Act is within the express incidental power conferred by s 51 (xxxix) of the Constitution - Whether s 486A of the Act is inconsistent with s 75(v) of the Constitution.

Immigration – Refugee Review Tribunal - Whether decision affirming the decision of a delegate of the Minister refusing application for a protection visa is a "privative clause decision" within s 474 of the Act - Whether s 474(1) of the Act ousts judicial review by the High Court pursuant to s 75 of the Constitution - Whether s 486A of the Act is constitutionally valid.

Words and Phrases "privative clause decision".

Constitution
– ss 51 (xix), (xxvii), (xxix), (xxxix), 75, 76.

Migration Act 1958 (Cth) – ss 5(1), 36, 474, 486A.

Judiciary Act 1903 (Cth) – ss 39B, 44.

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