S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 987

FEDERAL COURT OF AUSTRALIA

S311 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 987 S311 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL N 296 of 2003 BRANSON J 11 SEPTEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 296 of 2003

BETWEEN: S311 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 11 SEPTEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an order nisi be dismissed. 2. The applicants pay the respondents' costs on the basis outlined in paragraph 5 of the order of Justice Gaudron of 6 February 2003.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 296 of 2003

BETWEEN: S311 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: BRANSON J

DATE: 11 SEPTEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

introduction 1 On 6 February 2003 Justice Gaudron of the High Court made orders in this matter including orders as follows: '1. The Applicant have leave to file an amended draft order nisi, such amended draft order nisi to be filed by 21 February 2003, and the amendments to properly take account of the parties. 2. The further proceedings in this action be remitted to the Federal Court of Australia 3. The application proceed in that Court as if the steps already taken in the application in this Court had been taken in that Court.' 2 The steps taken in the High Court did not include the making by that Court of an order nisi in terms of the draft application or any order nisi. Order 51A rule 5 of the Federal Court Rules provides that: '(1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge: (a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and (b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute. (2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.' 3 Today I have heard Mr Gwozdecky, counsel for the applicants, on whether an order nisi should be made and on whether, if an order nisi were made, it should be made absolute. I directed Mr Bromwich, counsel for the first respondent, to address me solely on the issue of whether an order nisi should be made. The second respondent filed a submitting appearance. 4 Before an order nisi for prohibition or certiorari may be granted it is necessary for the party applying for the order to show that he or she has an arguable case that the person or body to whose proceeding the writ is directed has exceeded its jurisdiction or otherwise erred in a manner that would justify final relief by way of an order absolute (Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 at 183 per McHugh J). The other claims for relief made by the applicants in this case are dependent upon the claims for writs of prohibition and certiorari. 5 The grounds of review set out in the draft order nisi filed on 21 February 2003 are: '1. A constructive failure to exercise jurisdiction by the second respondent in relation to the decision on the Applicants and the Applicant family's protection visa 2. Denial of Natural Justice by the second respondent in relation to the decision on the Applicants and the Applicant family's protection visa 3. Failure to take into account relevant consideration/take account of irrelevant considerations by the second respondent in relation to the decision on the Applicants and the Applicant family's protection visa 4. Jurisdictional Error by the second respondent in relation to the decision of the Applicants and the Applicant family's protection visa'