Case: Xie v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 172
Outcome: referred to
Full Court of this Court considered the proper construction of s 494C in Xie v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 172 (" Xie "). The Court held that the effect of the section was to identify the date of receipt of a document and that it was not open to a person to establish that in fact he received the document on another date. In other words, the effect of the section was not merely to create a rebuttable presumption of fact (see also Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657 ; (2004) 135 FCR 550). The declaration which the applicant seeks is to the effect that s 494C creates nothing more than a rebuttable statutory presumption. As I understand it, the applicant acknowledges that, in order to succeed, she would have to persuade the Court not to follow the decision in Xie . She also acknowledges that only a Full Court could make the decision not to follow Xie . The second respondent, the Minister for Immigration and Citizenship, has filed and served a conditional appearance. He has issued a notice of motion seeking the following order: "The application for a declaration filed by the Applicant on 14 November 2008 be set aside pursuant to Order 9 rule 7 of the Federal Court Rules ." An affidavit was sworn in support of the motion, and that affidavit sets out the grounds upon which the application is made. They are as follows: There is no justiciable controversy or "matter" arising under a law made by the Parliament and therefore paragraph 39B(1A)(c) of the Judiciary Act is not a proper source of jurisdiction and the declaratory relief sought under s 21 of the Federal Court Act is not available. The relief sought should be refused in any event because an adequate alternative remedy is available, being a review by the first respondent, the Migration Review Tribunal, and, if appropriate, an application for constitutional writs directed to the Tribunal. In this case, the facts necessary for determining whether a declaration should be made have occurred and are not in dispute. The second respondent claims that the applicant was given notice of the delegate's decision and the reasons therefor on 22 September 2008, and that by reason of s 494C of the Act (and the construction placed on that section in Xie ) the applicant's application for review by the Tribunal is not competent. The applicant wishes to pursue an application for review by the Tribunal with a view to having the decision of the delegate reversed. Those circumstances are sufficient to give rise to a matter . One submission made by the second respondent should be addressed before leaving this topic. It was suggested that this case was similar to Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 in that the thrust of the application was an attack on the reasoning in Xie and that did not give rise to a justiciable issue (cf at 394-396 [22] and [26] per Gleeson CJ). That argument must be rejected because, in this case, the proper interpretation of s 494C of the Act has a direct effect on the competency of the applicant's application for review. Discretion