Applicant M78/2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 726

FEDERAL COURT OF AUSTRALIA

Applicant M78/2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 726

MIGRATION – fear of persecution due to being wrongly identified as a homosexual on the basis of HIV positive status - whether error by Refugee Review Tribunal in determining membership of particular social group Judiciary Act 1903 (Cth) s44(1) Migration Act 1958 (Cth) s417 Re Ross; ex parte Australian Liquor Hospitality and Miscellaneous Workers Union [2001] FCA 770, (2001) 108 FCR 399, referred to

Low v Commonwealth [2001] FCA 702, referred to

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, distinguished

APPLICANT M78/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL V194 OF 2003 MARSHALL J 15 JULY 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V194 OF 2003

BETWEEN: APPLICANT M78/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MARSHALL J

DATE OF ORDER: 15 JULY 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the first 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

VICTORIA DISTRICT REGISTRY V194 OF 2003

BETWEEN: APPLICANT M78/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST RESPONDENT

THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: MARSHALL J

DATE: 15 JULY 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The proceeding before the Court was remitted to it by order of the High Court of Australia made on 7 February 2003. The applicant filed an application for constitutional writs in the High Court on 5 June 2002 in respect of a decision of Refugee Review Tribunal ("the RRT") dated 16 July 2001, that was "handed down" on 3 August 2001. 2 In the High Court, the applicant sought a writ of prohibition directed to the RRT seeking that it refrain from giving effect to its decision to refuse the applicant a protection visa. In addition, a writ of certiorari was sought to quash the decision and a writ of mandamus was sought directing the RRT to determine the application for a protection visa according to law. 3 The grounds relied upon for the grant of constitutional writs comprehensively dealt with almost all imaginable varieties of legal error. 4 The proceeding in the High Court was filed out of time. The High Court did not grant an enlargement of time. Rather, it ordered that further proceedings in the application be remitted to this Court and that the application proceed in this Court, as if the steps already taken in the High Court had been taken in this Court; see also s44(1) of the Judiciary Act 1903 (Cth). 5 Order 55 of the High Court Rules provides a two month time limit for the writ of mandamus and a six month time limit for the writ of certiorari. Order 55 rule 30 provides that: "An application for a writ of mandamus, or an order in the nature of mandamus, to a judicial tribunal to hear and determine a matter shall be made within two months of the date of refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Justice."