M152 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 128

FEDERAL COURT OF AUSTRALIA

M152 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 128 M152 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V1170 OF 2003 MOORE, SACKVILLE & EMMETT JJ 14 MAY 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1170 OF 2003

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

BETWEEN: M152 OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: MOORE, SACKVILLE & EMMETT JJ

DATE OF ORDER: 14 MAY 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. To the extent that leave is required:

(a) either to appeal ; or

(b) to extend the time within which to apply for leave to appeal;

leave is refused and the appeal is dismissed as incompetent.

2. To the extent that no leave is required, the appeal is dismissed.

3. The appellants 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

VICTORIA DISTRICT REGISTRY V1170 OF 2003

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

BETWEEN: M152 OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: MOORE, SACKVILLE & EMMETT JJ

DATE: 14 MAY 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellants are father and son. They are citizens of Sri Lanka and arrived in Australia on 8 November 1999. On 15 November 1999 they lodged an application for protection (Class XA) visas under the Migration Act 1958 (Cth) ('the Act'). On 24 February 2000 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), refused to grant protection visas to them and on 20 March 2000 the applicants applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision. On 30 March 2001, the Tribunal affirmed the decision not to grant protection visas. 2 The applicants then applied to the Federal Court of Australia for review of the decision of the Tribunal under ss 475 and 476 of the Act, as they then stood. On 7 August 2002 that application was dismissed with costs by Sundberg J. Notwithstanding that an appeal from the orders dismissing that application was available to the appellants as of right, they declined to take that course. Rather, on 6 September 2002 they applied to the High Court of Australia for an order nisi requiring the Tribunal and the Minister to show cause why writs of prohibition, certiorari and mandamus should not be issued out of the High Court. The grounds specified in the draft order nisi filed in the High Court were that: * the Tribunal breached the rules of natural justice in connection with the making of its decision; * the Tribunal constructively failed to exercise its jurisdiction or alternatively exercised its powers in excess of jurisdiction by failing to review the application of and claims made by the appellant son; · the Tribunal made the decision in circumstances that were otherwise contrary to law.