NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1237

FEDERAL COURT OF AUSTRALIA

NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1237 NASF of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 858 OF 2002 SACKVILLE J SYDNEY 4 OCTOBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 858 OF 2002

BETWEEN: NASF of 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 4 OCTOBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant 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 858 OF 2002

BETWEEN: NASF of 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 4 OCTOBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS 1 The applicant seeks relief in respect of a decision of the Refugee Review Tribunal ("RRT") dated 28 June 2002, but handed down on 23 July 2002. The RRT affirmed a decision of a delegate of the respondent ("the Minister") not to grant the applicant, his wife and child protection visas. 2 The amended application does not seek the issue of one or more of the constitutional writs referred to in s 39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act"). Rather it is couched in terms more suited to an application under the repealed s 476 of the Migration Act 1958 (Cth) ("Migration Act"), in that it simply seeks orders that the decision of the RRT be set aside and the matter remitted to the RRT to be dealt with according to law. Nonetheless, Mr Smith, who appeared for the Minister, did not suggest that the application should be dealt with otherwise than as one made under s 39B(1) of the Judiciary Act. 3 The statement of claim filed on behalf of the applicant identifies the grounds upon which the applicant seeks relief as follows: "(a) The Tribunal failed to accord procedural fairness; Particulars (i) The Tribunal failed to consider all relevant material including the totality of the evidence that was before the decision maker. (ii) The Tribunal considered Indian legislation without advising the Applicant which particular piece or pieces of legislation were being so considered; (b) The Delegate did not comply with his statutory obligations to convey to the Tribunal all that evidence on which he based his decision." 4 The applicant's written submissions did not address the significance for his case of s 474(1) of the Migration Act, which provides as follows: "474(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." In these circumstances, it is perhaps not surprising that the submissions did not advert to the decision of a five member Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. Perhaps more surprising is the fact that the applicant's counsel did not address the operation of s 474(1) of the Migration Act in his oral submissions.