NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 124

FEDERAL COURT OF AUSTRALIA

NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 124

MIGRATION – appeal from a single Judge – where application for a protection visa refused – where appellant did not know of the delegate's decision because he escaped detention and remained at large for eighteen months – where jurisdictional error by delegate found to exist – whether trial Judge erred in exercise of discretion. Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Re Refugee Review Tribunal; Ex parte Aala [2000] 204 CLR 82 referred to House v The King (1936) 55 CLR 499 referred to Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 cited NAUV V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 2298 OF 2003 BEAUMONT, CONTI & CRENNAN JJ 14 MAY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2298 OF 2003

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

BETWEEN: NAUV

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, CONTI & CRENNAN JJ

DATE OF ORDER: 14 MAY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 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 N 2298 OF 2003

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

BETWEEN: NAUV

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, CONTI & CRENNAN JJ

DATE: 14 MAY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

iNTRODUCTION 1 This is an appeal from a judgment of a single Judge of this Court ([2003] FCA 1319). 2 Pursuant to the provisions of s 39B of the Judiciary Act 1903 (Cth), on 29 October 2003, by way of amended application, the appellant applied to this Court for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') under the Migration Act 1958 (Cth) ('the Act'). 3 The appellant claimed that the Tribunal fell into jurisdictional error by denying the appellant procedural fairness by refusing to hear his application. In the alternative, the appellant also sought review of the decision of the Minister's delegate, also claiming jurisdictional error and denial of procedural fairness there by first, failing to provide the appellant with adequate interpretation facilities to allow the appellant to fairly and properly present his application; secondly, by failing to provide the appellant with an opportunity to remedy errors of interpretation that occurred in the preparation of the statement prepared for the appellant on 14 May 2001 and relied upon by the Tribunal; thirdly, by failing to provide the appellant with an opportunity to respond to matters which it determined adversely to his interests; fourthly, by failing to consider a claim made by the appellant that he had a well-founded fear of persecution due to the fear of corrupt police in Algeria and the consequent failure by those police to afford the protection of the state to him from the Group Islamic Army ('the GIA'); fifthly, by not taking adequate steps to notify the appellant of his decision; and finally, by failing to provide the appellant with a copy of the decision at the earliest available opportunity. 4 The primary Judge found jurisdictional error on the part of the delegate, but refused relief on discretionary grounds. This is an appeal from the dismissal of the proceedings. The Minister has not challenged his Honour's finding of jurisdictional error, but adopts his Honour's reasons in refusing relief on discretionary grounds.