S635 OF 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 65

FEDERAL COURT OF AUSTRALIA

S635 OF 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 65 IMMIGRATION – application for protection visa – Minister's refusal – affirmed by the Refugee Review Tribunal – Convention relating to the Status of Refugees - no real chance of persecution for reason of applicant's Christian religion – appeal – whether grounds for well-founded fear of persecution for reason of reconversion from Islam – appeal dismissed PRACTICE AND PROCEDURE – application for review of Refugee Review Tribunal decision to Federal Court under old Part 8 Migration Act dismissed – application to High Court for constitutional writs by a draft order nisi – part of the proceedings remitted to Federal Court – remitted proceedings raised issue of jurisdictional unreasonableness not raised in previous application for review – remitted proceedings dismissed – appeal to Full Court dismissed – no Anshun estoppel as special circumstances identified, however Full Court in Gamaethige followed – application for special leave to appeal to High Court refused – Minister declined to exercise discretionary powers under Migration Act 1958 (Cth) s 417 – application to High Court for constitutional writs – proceedings remitted to Federal Court – ground of abuse of process raised by Minister – no abuse of process however no jurisdictional error on ground of illogicality – appeal to Full Court – whether the tribunal's reasoning was supported by logical grounds – whether the tribunal's decision was void for jurisdictional error – whether res judicata or Anshun estoppel applies – appeal dismissed

Statutes Migration Act 1958 (Cth) ss 476(1)(e), 476(2)(b), 417

Cases Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Cons Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Cons, Foll Berkeley v Berkeley [1946] AC 555 Cons Blair v Curran (1939) 62 CLR 464 Cited Bryant v Commonwealth Bank of Australia (1995) 130 ALR 129 ConsBuck v Bavone (1976) 135 CLR 110 Foll Crown Estate Commissioners v Dorset County Council [1990] Ch 297 Appr Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 1983 ALR 59 Cons In Re Waring; Westminster Bank Limited v Awdry [1942] Ch 426 Cons In Re Waring; Westminster Bank Limited v Burton-Butler [1948] Ch 221 Appr In Re Waring; Westminster Bank Limited v Awdry [1942] Ch 309 Cons Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Foll Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Cons, Foll Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Cons Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 Foll Somanader v Minister for Immigration and Multicultural Affairs (2001) 178 ALR 677 Cons Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 108 ALR 335 Cons Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 Cited