SGXB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 24

FEDERAL COURT OF AUSTRALIA

SGXB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 24 SGXB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 244 of 2002 MANSFIELD J 31 JANUARY 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 244 OF 2002

BETWEEN: SGXB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 31 JANUARY 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent 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 244 OF 2002

BETWEEN: SGXB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 31 JANUARY 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT

introduction 1 The applicant seeks an order under s 39B of the Judiciary Act 1903 (Cth) setting aside a decision of the Refugee Review Tribunal (the Tribunal) given on 16 October 2002. The Tribunal affirmed a decision of a delegate of the respondent given on 28 June 2001 not to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 4 May 2001, shortly after his arrival in Australia on 11 April 2001. The delegate's decision had previously been affirmed by the Tribunal on 1 October 2001, but that decision had been set aside by the Court: SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547. The present application is therefore to review the subsequent decision of the Tribunal. 2 The hearing of the present application took place on 23 January 2003. Section 474(1) of the Act, the privative clause provision, has the effect of restricting or limiting the grounds or circumstances in which the Tribunal can be found by the Court to have exceeded its jurisdiction so as to entitle the Court to make an order under s 39B of the Judiciary Act. That is because s 474(1) of the Act extends the jurisdiction of the Tribunal so that it does not exceed its jurisdiction simply by failing to accord procedural fairness, or generally speaking by failing to comply with a procedural prescription contained in the Act, or by legal error. See NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, (2002) 69 ALD 1. For practical purposes in the present matter, the Tribunal could be found to have exceeded its jurisdiction only if one of the exceptions to the Hickman principles (R v Hickman; Ex Parte Fox & Clinton (1945) 70 CLR 598 at 616-617) is established. 3 The High Court on 3 and 4 September 2002 heard argument in two matters concerning applicants for protection visas under the Act and which involve consideration of the validity and scope of operation of s 474 of the Act and its manner of operation: Ex parte Applicant S.134/2002; Re Minister for Immigration & Multicultural & Indigenous Affairs; and Plaintiff SY157 of 2002 v The Commonwealth of Australia. Judgment was reserved. I am informed by counsel for the respondent that judgment is to be delivered on 4 February 2003. Of course I do not presume to anticipate what that decision may be. However, having regard to the matters argued in those two matters, I propose also to consider the present application on the basis that s 474 is of no effect, so that jurisdictional error of the type discussed by the High Court in Craig v South Australia (1995) 184 CLR 163 and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 would be sufficient, if established, to warrant the grant of relief by the Court under s 39B of the Judiciary Act. I stress that, in adopting that course, I do not intend in any way to anticipate what the decision of the High Court may be.