Khan, Azam v Minister for Immigration & Ethnic Affairs [1996] FCA 778

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No NG 746 of 1995 ) GENERAL DIVISION ) BETWEEN: AZAM KHAN Applicant AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent Coram:Davies J. Date: 21 August 1996 Place: Sydney REASONS FOR JUDGMENT This application seeks orders of judicial review with respect to a decision of the Refugee Review Tribunal ("the Tribunal") given on 29 August 1995. The applicant, Mr Azam Khan, lodged an application seeking recognition as a refugee on 7 March 1991. That application was refused in 1992 and Mr Khan sought review by the then Refugee Status Review committee. The matter came on for hearing before the Tribunal and a decision rejecting Mr Khan's application was given on 12 January 1993. Before s.48A had been introduced into the Migration Act 1958 (Cth), Mr Khan lodged a further application seeking recognition as a refugee and a protection visa. That application was refused and in due course the matter came again before the Tribunal which handed down its decision refusing the visa on 29 August 1995. In making its decision the Tribunal exercised the powers conferred on it by s.416 of the Migration Act which provides: "416. If a non-citizen who has made: (a) an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or (b) applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal of the Administrative Appeals Tribunal; makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application: (c) is not required to consider any information considered in the earlier application or an earlier application; and (d) may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information." The present application to the Court is in the following terms, inter alia: "Application to review the decision of the Refugee Review Tribunal dated 29 August, 1995 (which incorporated and affirmed the decision of the Refugee Review Tribunal dated 12 January, 1993) that the Applicant is not a refugee..." In my opinion, the decision of August 1995 did not incorporate the decision of 12 January 1993 nor did it affirm it. Rather, the Tribunal took the view that it was entitled to have regard to, and to take as correct, the decision that had previously been made. The earlier decision is, however, not totally irrelevant to the matter now before the Court and I shall return to it. The application to the Court is an application under s.476 of the Migration Act which provides inter alia: "476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one of more of the following grounds: ...