SCAY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 766

FEDERAL COURT OF AUSTRALIA

SCAY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 766 Migration Act 1958 (Cth) Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Judiciary Act 1903 (Cth) s39B SCAY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No S 72 of 2002 O'LOUGHLIN J ADELAIDE 17 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 72 OF 2002

BETWEEN: SCAY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 17 JUNE 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicant pay the Respondent's costs which costs are 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

SOUTH AUSTRALIA DISTRICT REGISTRY S 72 OF 2002

BETWEEN: SCAY

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE: 17 JUNE 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant, who is a Pashtun from Afghanistan, and a Shi'a Muslim, arrived in Australia on 30 January 2001. Within a short time of his arrival he lodged an application for a protection visa pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). That application was unsuccessful. On 9 May 2001, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant him the visa that he had sought. The applicant sought review of that decision by the Refugee Review Tribunal ("the Tribunal") but on 30 July 2001 the Tribunal published its reasons for affirming the decision of the delegate. The applicant was successful in applying to the Federal Court for an order of review of the Tribunal's decision. On 23 November 2001, the Court ordered, by consent, that the Tribunal's decision be set aside and that the matter be remitted back to the Tribunal for reconsideration. The Tribunal, differently constituted, reconsidered the applicant's application for a protection visa but, once more, the applicant was unsuccessful. On 17 January 2002 the Tribunal handed down its reasons for affirming the decision of the delegate not to grant the protection visa. Once more the applicant seeks the intervention of this Court. However, in the meantime, the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the 2001 Amendments") came into effect on 2 October 2001. Hence the current application before the Court is in the form of an application made under s 39B of the Judiciary Act 1903 (Cth). In that application the applicant seeks the following orders: "(a) An order that a writ of certiorari be directed to the Tribunal to quash its decision; (b) An order that a writ of prohibition be directed to the Minister prohibiting the Minister from acting upon or giving effect to or proceeding further upon the decision; (c) An order that a writ of mandamus be directed to the Tribunal compelling it to re‑determine the application for a protection visa according to law; and (d) An order that the Tribunal and the Minister pay the costs of the applicant." 2 The grounds upon which the applicant seeks relief are that the Tribunal: "(a) exceeded jurisdiction in making the decision to affirm [the delegate's] decision not to grant the applicant a protection visa; and (b) erred in law in arriving at the decision to affirm [the delegate's] decision not to grant the applicant a protection visa."