NBBV v Minister for Immigration & Multicultural & Indigenous Affairs 2004 FCAFC 291

FEDERAL COURT OF AUSTRALIA

NBBV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 291 NBBV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1071 OF 2004 FRENCH, EMMETT & DOWSETT JJ 11 NOVEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1071 OF 2004

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

BETWEEN: NBBV

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FRENCH, EMMETT & DOWSETT JJ

DATE OF ORDER: 10 NOVEMBER 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 1071 OF 2004

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

BETWEEN: NBBV

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FRENCH, EMMETT & DOWSETT JJ

DATE: 11 NOVEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 After hearing the appellant we dismissed his appeal, ordering him to pay the respondent's costs. We said that we would subsequently publish our reasons for so ordering. We now do so.

Introduction 2 The appellant, a citizen of the People's Republic of China, arrived in Australia on 8 January 2003. On 22 January 2003, he lodged an application for a Protection (Class XA) visa. On 18 February 2003, a delegate of the respondent (the "Minister") declined the application and on 14 March 2003, the appellant applied to the Refugee Review Tribunal (the "Tribunal") for review of that decision. The Tribunal affirmed the decision on 31 December 2003. On 19 February 2004, the appellant applied, pursuant to s 39B of the Judiciary Act 1903 (Cth), for the issue of writs of certiorari and mandamus directed to the Tribunal. On 9 April 2004, the appellant filed an amended application for such writs, the grounds being: '(1) The RRT constructively failed to exercise its jurisdiction. Particulars (a) The RRT failed to conduct a real, rather than purported exercise of its jurisdiction to determine whether the applicant was facing a real chance of persecution upon return to his home country as he claimed at the hearing held by the Tribunal. (b) The RRT improperly precluded itself from considering the material, which supported the applicant's claim that he has assisted other Catholic practitioners. (2) The RRT's satisfaction was reached in the absence of probative material and/or logical grounds and was thereby not rationally formed.' 3 On 18 June 2004, Branson J dismissed the application, ordering the appellant to pay the respondent's costs. On 7 July 2004, the appellant appealed from that decision, which appeal is the subject of the present hearing. The grounds of appeal identified in the notice of appeal are as follows: '(1) The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed. (2) The decision involves errors of law.' 4 It is not clear whether these grounds were meant to relate to the decision of Branson J or to the decision of the Tribunal. In any event, they are so lacking in particularity as to be incapable of further consideration.