Nbgm v Minister for Immigration and Multicultural Affairs and Another
[2006] HCA 54(2006) 81 ALJR 337
(2006) 231 ALR 380
(2006) 93 ALD 43
(2006) 231 CLR 52
(Judgment by: Gummow ACJ)
Nbgm
vMinister for Immigration and Multicultural Affairs and Another
Judges:
Gummow ACJKirby J
Callinan J
Heydon J
Crennan J
Legislative References:
Migration Act 1958 (Cth) - s 36(3); s 91X
Border Protection Legislation Amendment Act 1999 (Cth) - The Act
Judiciary Act 1903 (Cth) - The Act
Migration Act 1958 (Cth) - The Act
Judgment date: 15 November 2006
Sydney
Judgment by:
Gummow ACJ
[1] I agree generally with the reasons for judgment of Callinan, Heydon and Crennan JJ and in particular with the conclusion that the reasoning in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [1] produces the result that this appeal must fail.
[2] This conclusion is reached independently of any view of the construction of subss (3), (4) and (5) of s 36 of the Migration Act 1958 (Cth) (the Act). The sufficiently decisive consideration is found in the use of the present tense in s 36(2) and the supporting considerations discussed in QAAH .
[3] Subsections (3), (4) and (5) were added by the Border Protection Legislation Amendment Act 1999 (Cth). [2] It would be a curious result if the outcome in the present case was owed only to such recent amendments and would have differed before the making of those amendments.
[4] Further, there are various issues of construction of subss (3), (4) and (5) of s 36. Some of these I referred to in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji . [3] Others divided the Full Court in the present case. These matters do not require determination for an outcome in the present appeal which favours its dismissal.
[5] Special leave to appeal should be granted. The appeal should be taken as instituted and heard instanter and dismissed with costs. However, that would leave to the Full Court the question of costs as reserved by order 3 of its orders made on 12 May 2006.