Case: Epenisa v Minister for Immigration &amp; Multicultural Affairs (2007) 44 AAR 456
Outcome: cited
Section 483 is clear in its terminology and meaning. The amendments to the Migration Act in the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and the 2005 Act do not remove a right of judicial review of Tribunal decisions. They confer jurisdiction on the Federal Magistrates Court to review those migration decisions for which jurisdiction is not conferred on the Federal Court by s 476A and to place statutory limits on a statutory right of appeal. Justice Besanko observed in Epenisa v Minister for Immigration &amp; Multicultural Affairs (2007) 44 AAR 456 at [11], on the subject of the limitation imposed by s 483 of the Migration Act , that s 44 of the AAT Act is a statutory right of appeal and ' there is nothing to prevent Parliament from excluding from its purview a certain class of decision '. 21 Clause 51 of the Revised Explanatory Memorandum to the Migration Legislation Amendment (Judicial Review) Bill 2001 concerns the proposed s 483. It says: Section 483 Section 44 of the Administrative Appeals Tribunal Act 1975 51 Section 44 of the Administrative Appeals Tribunal Act 1975 allows for appeals from the Administrative Appeals Tribunal to the Federal Court on a point of law. New section 483 prevents section 44 from applying to a privative clause decision. Therefore, an application to the Federal Court in respect of such a decision needs to be made under section 39B of the Judiciary Act . 26 There have, however, been other decisions of the Court where the effect of s 483 has been considered on appeal from the Tribunal and in the context of business visa decisions. In Li-Shien Chen v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1496 at [2] [3] Drummond J noted that it was common ground that that the Tribunal's decision was a privative clause decision and that an appeal against the Tribunal's decision to the Court under s 44 of the AAT Act was not available because of s 483 of the Migration Act (as it was, prior to the 2005 Act). In Jong Hak Kim v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 31 ; (2004) 38 AAR 304 , also concerning a business visa decision, Kiefel J noted at [26] that it had been submitted by the Minister that the Court's jurisdiction was under s 39B of the Judiciary Act 1903 (Cth) and not s 44 of the AAT Act because of s 483 of the Migration Act . Her Honour did not reject that submission but did not consider it further. In SHCB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 308 ; (2003) 133 FCR 561 , not a business visa case, the Full Court held at [5] that, if the Tribunal decision was a privative clause decision, there was no right of appeal under s 44 of the AAT Act by reason of the operation of s 483. In Epenisa , Besanko J considered the Court's jurisdiction in an appeal from the Tribunal decision. Noting that the Court had jurisdiction under s 39B of the Judiciary Act and under ss 476A(1)(b) or (c) of the Migration Act , his Honour observed at [8] that there was no right of appeal under s 44 of the AAT Act because of s 483 of the Migration Act .