Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
NACQ of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 535
Migration Act 1958 (Cth) s 36(2), 414, 426, 474 Judiciary Act 1903 (Cth) s 39B Applicant A & Anor v MIEA & Anor (1997) 142 ALR 331 cited Dolan v AOTC (1993) 42 FCR 206 cited Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) HCA 11 cited W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379 distinguished NACQ OF 2001 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO. N1587 OF 2001 BEAUMONT J 11 APRIL 2002 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 1587 OF 2001
BETWEEN: NACQ OF 2001
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: BEAUMONT J
DATE OF ORDER: 11 APRIL 2002
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The application be dismissed, with costs. 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 1587 OF 2001
BETWEEN: NACQ OF 2001
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: BEAUMONT J
DATE: 11 APRIL 2002
PLACE: SYDNEY
REASONS FOR JUDGMENT BEAUMONT J:
INTRODUCTION 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 11 October 2001, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The application for an order of review was filed on 4 December 2001, and therefore falls within "the privative clause" regime.
THE GROUNDS OF THE APPLICATION 2 The amended application for an order of review, brought under s 39B of the Judiciary Act 1903 (Cth) seeks, in essence, writs of certiorari and mandamus directed to the Tribunal. 3 The grounds of the application are as follows. "1. The … Tribunal … committed jurisdictional error of law. Particulars a. The decision was not a bona fide attempt to exercise the Tribunal's power. b. The Tribunal failed to address a substantial claim before it, being whether the applicant had a well-founded fear of persecution for reason of membership of a particular social group, being his family. c. The Tribunal failed to take into account a relevant consideration, being the claim that the applicant feared persecution for reason of membership of a particular social group, being his family. d. The Tribunal breached an imperative duty or inviolable limitation or restraint imposed by s 414 of the Migration Act 1958, in that it did not conduct a "review" as mandated by that section. e. The Tribunal breached an imperative duty or inviolable limitation or restraint imposed by s 36(2) of the Migration Act, in that it did not decide whether the applicant had a well-founded fear of persecution according to law."
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