Applicant in V471 of 2000 v Minister for Immigration & Multicultural Affairs [2001] FCA 1463

FEDERAL COURT OF AUSTRALIA

"Applicant in V471 of 2000" v Minister for Immigration & Multicultural Affairs [2001] FCA 1463

"APPLICANT in V471" of 2000 -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V471 of 2000

RYAN J

19 OCTOBER 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V471 of 2000

On remittal from the High Court of Australia

BETWEEN: APPLICANT in V471 of 2000

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 19 OCTOBER 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS: 1. THAT insofar as the applicant relies for the issue of a writ of mandamus, prohibition or certiorari or an injunction on the grounds referred to in paragraph 2 of the Order of the High Court of Australia made by Hayne J on 29 March 2000, the application be dismissed. 2. THAT the applicant pay the respondent's costs of the proceedings in this Court, such costs to be taxed in default of agreement. 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 V471 of 2000

On remittal from the High Court of Australia

BETWEEN: APPLICANT in V471 of 2000

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 19 OCTOBER 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 There is before the Court a matter remitted from the High Court of Australia on 29 March 2000 when Hayne J ordered that there be remitted to this Court that part of the matter pending in the High Court; "in which the Applicant seeks a writ of mandamus, prohibition or certiorari or an injunction against an officer of the Commonwealth on the grounds that: (a) the Refugee Review Tribunal ("the Tribunal") failed to observe the procedures that were required by the Migration Act 1958 (Cth) ("the Act") or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings; (b) the Tribunal did not have jurisdiction to make the decision it did; (c) the Tribunal's decision was not authorised by the Act or the regulations under the Act; (d) the Tribunal's decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision." 2 By way of particulars of those grounds remitted to this Court, the applicant has filed a document which, so far as is relevant, recites; "1. The RRT failed to observe procedures that were required to be observed by the Migration Act and the Migration Regulations whereby the exercise of its powers was affected. PARTICULARS (a) By s.430(1)(c) the Migration Act requires the RRT make findings on material questions of fact. The RRT erred in failing to find as a fact whether or not the applicant had assisted LTTE operatives in January 1996 when this was a material question of fact. (b) The RRT determined the application notwithstanding that no specific claims under the Refugees Convention were made in it as required by ss.45(1), 46(1)(b) and 47(1) of the Migration Act. The RRT erred in failing to appreciate that there was not a RRT-reviewable decision before it and that a valid application for refugee status had not been made. 2. The decision of the RRT involved an error of law being an error involving an incorrect interpretation of the applicable law whereby its exercise of power was affected. PARTICULARS The RRT erred in failing to consider the aggregation of the specific claims of the applicant whereby he sought to be recognised as a refugee. The RRT erred in considering the specific claims in isolation. 3. The decision involved an error of law being an incorrect application of the law to the facts as found by the RRT whereby its exercise of power was affected. PARTICULARS The RRT erred in concluding that the applicant did not have a well-founded fear of persecution because the Sri Lankan security forces had so far failed to detect his involvement in supporting LTTE operatives rather than whether the applicant had a well-founded fear of persecution within the Refugees Convention."