SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 962

FEDERAL COURT OF AUSTRALIA

SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 962 SCAT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No S 68 of 2002 von DOUSSA J ADELAIDE 6 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 68 OF 2002

BETWEEN: SCAT

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE OF ORDER: 6 AUGUST 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. Application dismissed.

2. The applicant SCAT pay the respondent's costs of the application.

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 68 OF 2002

BETWEEN: SCAT

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE: 6 AUGUST 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 In these proceedings brought under s 39B of the Judiciary Act 1903 (Cth) review is sought of a decision of the Refugee Review Tribunal (the Tribunal) dated 26 February 2002 which affirmed a decision of a delegate of the respondent not to grant protection visas to four applicants who were husband and wife and their two children. It is convenient to refer to the applicant husband simply as "the husband", and to the applicant wife as "the wife". 2 There appears to be confusion in the papers as to whether the applications of the wife and two children fell to be assessed as members of the husband's family unit, whose entitlement to visas turned upon the merits of the husband's claims to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol, as those expressions are defined in s 5(1) of the Migration Act 1958 (the Act). However, the wife made a separate visa application and claimed that she had suffered persecution. Her claim echoes in part the allegations made by her husband. Their claims were considered together by the Tribunal and the Tribunal's reasons for the decision are expressed to cover the separate claims of the husband and the wife. I mention this background as the application to this Court is made only by the husband, although in the conduct of the proceedings it is plain that the application is brought on behalf of all family members. 3 As the Tribunal's decision was made after 2 October 2001, the application to this Court for review is subject to the provisions of the new Part 8 of the Act introduced by the Migration Legislation Amendment (Judicial Review) Act 2001. The Tribunal's decision is a "privative clause decision" within the meaning of s 474(2) and (3)(b) of the Act, and is therefore subject to the provisions of s 474(1) which provides: "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."