NANG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1143

FEDERAL COURT OF AUSTRALIA

NANG v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1143

NANG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 649 OF 2002 EMMETT J 6 SEPTEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N649 OF 2002

BETWEEN: NANG

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT

DATE OF ORDER: 6 SEPTEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the respondent's costs; 3. orders 1 and 2 be stayed until 5pm on 7 October 2002; 4. the applicant be given leave to file and serve prior to 5pm on 7 October 2002 any written submissions outlining any further material which justifies reconsideration of the matter; 5. if the applicant files any submissions as referred to in order 4, the stay will be extended until further order of the Court; 6. the respondent is given leave to file and serve any written submissions in reply within a period of seven days following the filing of any submissions by the applicant. 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 N649 OF 2002

BETWEEN: NANG

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT

DATE: 6 SEPTEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant claims to be a citizen of Iran and arrived in Australia on 26 February 2002. On 1 March 2002, he lodged an application for a protection visa with the Department of Immigration, Multicultural and Indigenous Affairs. On 8 April 2002, a delegate of the respondent, the Minister for Immigration, Multicultural and Indigenous Affairs ("the Minister"), refused to grant a protection visa under the Migration Act. On 9 April 2002, the applicant applied for review of that decision by the Refugee Review Tribunal ("the Tribunal"), pursuant to the provisions to that effect contained in the Migration Act 1958 (Cth) ("the Act"). On 25 June 2002, the Tribunal affirmed the decision not to grant a protection visa. On 4 July 2002, the applicant lodged an application to this court seeking relief in respect of the Tribunal's decision. On 26 July I gave directions for the preparation of the matter for hearing and listed it for hearing before me today. 2 Included in the directions was a requirement that the applicant file and serve an amended application by 15 August and that he file an outline of submissions five days prior to the hearing date. Nothing has been filed. However, on 27 August 2002, the applicant sent a facsimile communication to the Registrar, requesting a thirty day extension of the hearing date. The Minister opposed any such adjournment and the applicant was informed that he would need to make an application for an adjournment on the hearing day. On 5 September 2002, the Court received a facsimile communication from Gilbert & Tobin, solicitors, indicating that the applicant had approached them with a request for legal advice. Gilbert & Tobin said that they were not in a position to appear at a hearing on 6 September 2002, but would be prepared to assist the applicant to prepare for a hearing if the Court were to adjourn the hearing to a later time. When the matter was called on this morning for hearing, the applicant applied for an adjournment of the hearing for thirty days. 3 The solicitor for the Minister has indicated that the applicant has had the opportunity of participating in the pilot legal advice scheme. For reasons which I will specify in a moment, there appears to me to be no utility in an adjournment because the application has no prospects of success. On the other hand, I am reluctant to dispose of the matter in circumstances where there does appear to be some prospect of the applicant being given some legal advice. I propose therefore, to give a decision in relation to the matter, but to delay any final order until the applicant has an opportunity to obtain legal advice. 4 The decision of the Tribunal is a privative clause decision within the meaning of s 474(2) of the Act. It is clearly a decision of an administrative character made under the Act. Under s 474(1) of the Act, a privative clause decision. Under s 474(2) of the Act the term "privative clause decision" is defined as meaning a decision of an administrative character made, proposed to be made, or required to be made as the case may be, under the Act. Under s 474(1) a privative clause decision: (a) is final and conclusive;