S487 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 125

FEDERAL COURT OF AUSTRALIA

S487 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 125 MIGRATION – application to the High Court for constitutional writs and injunctive relief remitted to Federal Court – whether failure to comply with s 418(3) of the Migration Act 1958 (Cth) – documents specifically identified in Delegate's decision record and available in electronic form – no denial of procedural fairness – appeal dismissed

Migration Act 1958 (Cth), ss 418(3)

Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to S487 of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 2165 OF 2003 MOORE, BRANSON and EMMETT JJ 13 MAY 2004 ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2165 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN: S487 of 2002

APPELLANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: MOORE, BRANSON and EMMETT JJ

DATE OF ORDER: 13 MAY 2004

WHERE MADE: ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT: 1. If leave to appeal is necessary, leave be granted. 2. The appeal be dismissed. 3. The first appellant pay the respondent's costs. 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 2165 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN: S487 OF 2002

APPELLANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: MOORE, BRANSON and EMMETT JJ

DATE: 13 MAY 2004

PLACE: ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

THE COURT

Introduction 1 The appellants applied for protection visas on 27 November 1995. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused that application on 11 July 1997. The appellants sought review of that decision and on 21 August 2000, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision. On 18 December 2002 the appellants applied to the High Court for an order nisi for constitutional writs. On 6 February 2003, Gaudron J ordered that the proceedings in that Court be remitted to the Federal Court. The remitted proceedings were determined by Sackville J. On 14 November 2003, his Honour made an order dismissing the application. The appellants now appeal against his Honour's judgment. 2 As his Honour noted in his reasons for judgment, the appellants' applications for protection visas now have a long history. The appellants are Bangladeshi husband, wife and children. We shall, from this point, refer only to the male appellant ("the appellant"). The appellant had previously applied to this Court for judicial review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") in the form it was in at that time. He relied on paras 476(1)(a), and (e) and s 430. Tamberlin J dismissed that application on 5 March 2001. An appeal to a Full Court from the judgment of Sackville J was dismissed on the day it was heard, namely 7 August 2001. On 4 September 2001, the appellant applied for special leave to appeal to the High Court. His application for special leave was dismissed on 23 April 2002.