NABB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 225

FEDERAL COURT OF AUSTRALIA

NABB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 225 NABB OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 137 OF 2002 HEEREY, EMMETT & DOWSETT JJ 5 AUGUST 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N137 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NABB OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: HEEREY, EMMETT & DOWSETT JJ

DATE OF ORDER: 5 AUGUST 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the appeal be dismissed; and 2. the appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N137 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NABB OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: HEEREY, EMMETT & DOWSETT JJ

DATE: 5 AUGUST 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This appeal was heard on 5 August 2002. On that day the Court indicated that it had reached a firm view and ordered the appeal be dismissed with costs, we said that we would publish our reasons as soon as possible. These are those reasons. 2 The appellant is a citizen of Iran. He arrived in Australia on 20 April 2001 with his wife and their three children. On 5 July 2001, they lodged an application for Protection (XA) Visas under the Migration Act 1958 (Cth) ("the Migration Act"). On 2 August 2001 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister"), refused to grant the visas applied for and, on 9 August 2001, the appellant and his family lodged an application to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 18 October 2001 the Tribunal affirmed the decision not to grant protection visas. 3 On 2 November 2001 the appellant filed with the Court an application for an order of review of the Tribunal's decision. The ground of the application was stated as follows: "The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence." On 15 November 2001, the application came before a judge of the Court when it was listed for hearing on 12 December 2001. 4 When the matter was called on for hearing on 12 December 2001, the appellant sought an adjournment in order to obtain legal advice. Over the objection of counsel for the Minister, the primary judge granted that application and stood the matter over for hearing on 6 February 2002. Despite directions given on 15 November 2001 and again on 12 December 2001, that the appellant file written submissions, no written submissions were filed by the appellant. In the absence of any notice of any amended application or written submissions, the primary judge considered that he had no alternative but to proceed to hear the matter on 6 February 2002 as it then stood. The appellant was unrepresented at all times before the appeal to the Full Court. 5 The decision of the Tribunal is a privative clause decision within the meaning of s 474(2) of the Migration Act. Accordingly, under s 474(1), the decision: · is final and conclusive; · must not be challenged, appealed against, reviewed, quashed or called in question in any court; and · is not subject to prohibition, mandamus injunction, declaration or certiori in any court on any account.