Applicant M38/2002 v Refugee Review Tribunal [2003] FCA 58

FEDERAL COURT OF AUSTRALIA

Applicant M38/2002 v Refugee Review Tribunal [2003] FCA 58

MIGRATION – protection visa – error of law - whether the Tribunal failed to take into account relevant considerations which it was bound to take into account in the making of its decision. Migration Act 1958 (Cth) ss 48B, 417 High Court Rules O55 r 17, O55 r 30 and O60 r 6 Federal Court Rules O29 r 2 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied APPLICANT M38/2002 v REFUGEE REVIEW TRIBUNAL and HON. PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 696 OF 2002 MARSHALL J 10 FEBRUARY 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V696 OF 2002

BETWEEN: APPLICANT M38/2002

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

HON. PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: MARSHALL J

DATE OF ORDER: 10 FEBRUARY 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The proceeding be adjourned to a directions hearing at 9.45 am on 21 March 2003.

2. Costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V696 OF 2002

BETWEEN: APPLICANT M38/2002

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

HON. PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: MARSHALL J

DATE: 10 FEBRUARY 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This matter was remitted to the Court by an order of the High Court of Australia (Hayne J) dated 1 August 2002. The application initiating the proceeding was filed in the High Court on 9 April 2002. It sought orders for Prohibition, Certiorari and Mandamus in respect of a decision of the first respondent, the Refugee Review Tribunal ("the Tribunal"). The Tribunal's decision affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), the second respondent to the proceeding, refusing the grant to the applicant of a Protection (Class XA) visa ("protection visa"). The application additionally sought an order prohibiting the Minister from repatriating the applicant to Iran, the applicant's country of origin. 2 On remittal from the High Court, this Court made orders on 25 October 2002 progressing the matter to trial. Paragraph 2 of the orders provided that the applicant file and serve proper particulars of the application. Those particulars were filed on 18 December 2002 and read as follows: "1. The First Respondent failed to take into account relevant considerations in the exercise of its power under the Migration Act 1958 (Cth) ("the Act"). Particulars The Tribunal failed to have regard to the statement made in the Applicant's screening interview of 10 June 2000 that his arrest related to a "candidate's voting platform. The Tribunal failed to have regard to the statement made by the Applicant in the July/August 2000 Delegate Interview that he had been arrested "after the so called local council elections." 2. The Second Respondent be prohibited from repatriating the Applicant to Iran. Particulars The power to remove a person arises under s.198 of the Act. That power neither requires nor authorises acts amounting to refoulement. Removal of the Applicant to Iran would amount to act of refoulement and is not authorised by the Act."