Case: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 , 204 ALR 624
Outcome: cited
first purported Ground of Appeal does not address any error said to have been committed by the Federal Magistrate. This Court has no jurisdiction to entertain an appeal from a decision of the Tribunal. The relevant jurisdiction is its appellate jurisdiction in respect to a decision of a Federal Magistrate. Moreover, the ground is misconceived. Neither the Federal Magistrates Court nor this Court on appeal can review a decision of the Tribunal simply upon the basis that it is said to be not " fair ". The relevant jurisdiction of the Federal Magistrates Court is that conferred by s 476(1) of the Migration Act 1958 (Cth) which provides as follows: Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution . The jurisdiction under s 75(v) does not extend to a consideration of the factual merits of a decision and a consideration as to whether it is " fair " or " unfair ." The relevant appellate jurisdiction of this Court is that conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) and that jurisdiction does not extend beyond that conferred upon the Federal Magistrate. Relying upon an earlier decision of Kenny J, Her Honour Justice Crennan in Jones v Southall &amp; Bourke Pty Ltd [2004] FCA 539 summarised the nature of such an appeal to this Court as follows: [2] An appeal from a judgment of the Federal Magistrates Court under s 24(1)(d) of the FCA Act is neither a hearing de novo nor an appeal in the strict sense, but is an appeal by way of re-hearing. As stated by Kenny J in Farrington v Deputy Commissioner of Taxation (2002) 50 ATR 429 at [4]: On an appeal by way of re-hearing, the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual, or discretionary error: see Allesch v Maunz [2000] HCA 40 ; (2000) 173 ALR 648 at 653 54 per Gaudron, McHugh, Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 ; (2001) 178 ALR 421 , at 439 per Gleeson CJ and Gummow J; and Coal &amp; Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 174 ALR 585 at 590 per Gleeson CJ, Gaudron and Hayne JJ. See also: Low v Commonwealth of Australia [2001] FCA 702 at [3] per Marshall J; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [18] , [2004] FCA 106 ; 204 ALR 624 at 628 to 629 per French J (as His Honour then was); NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [31] per Graham J; MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 at [29] per Young J. The appellate jurisdiction of this Court has been conferred for the purpose of correction of any error in the decision of a Federal Magistrate, not to correct error on the part of the Tribunal.