NACL v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 542

FEDERAL COURT OF AUSTRALIA

NACL v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 542 NACL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1567 of 2001 SACKVILLE J SYDNEY 1 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1567 OF 2002

BETWEEN: NACL

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 1 MAY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant to pay the respondent's 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 1567 OF 2002

BETWEEN: NACL

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 1 MAY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

the proceedings 1 This is an application for review of a decision by the Refugee Review Tribunal ("RRT") made on 7 November 2001. The RRT affirmed a decision of a delegate of the respondent ("the Minister") made on 11 March 1998 not to grant the applicant a protection (class XA) visa. 2 The application for review of the delegate's decision was lodged with the RRT on 1 April 1998. The RRT's delay of three and a half years in determining the application for review is partly accounted for by the fact that the RRT member to whom the matter was first allocated, and who held the first hearing, resigned prior to making a decision. The change in composition of the RRT necessitated a second hearing, which took place on 9 October 2001. At the first hearing, held on 22 March 2000, the applicant had been represented by a migration agent. At the second hearing he was represented by a solicitor. 3 The applicant appeared at the hearing in this Court without legal representation. The application for review in this Court is framed by reference to grounds that were specified in Part 8 of the Migration Act 1958 (Cth) ("Migration Act") prior to its repeal by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which came into force on 2 October 2001. The key provision in the new Part 8 of the Migration Act is s 474, which provides as follows: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)…". The RRT's decision in the present case is a "privative clause decision" within the definition in s 474(2) of the Migration Act.