Applicant VBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1141

FEDERAL COURT OF AUSTRALIA

Applicant VBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1141 MIGRATION – protection visa – appeal from Federal Magistrate – whether failure to consider submissions on post hearing legislative changes referred to in judgment constitutes breach of natural justice

Migration Act 1958 (Cth) ss 36, 65, 91R VBB v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FMCA 117 affirmed Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 cited Kioa v West (1985) 159 CLR 550 followed Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 followed Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 followed Stead v State Government Insurance Commission (1986) 161 CLR 141cited

APPLICANT VBB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V481 of 2003 HEEREY J 21 OCTOBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V481 OF 2003

On appeal from a Federal Magistrate BETWEEN: APPLICANT VBB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 21 OCTOBER 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant 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

VICTORIA DISTRICT REGISTRY V481 OF 2003

On appeal from a Federal Magistrate BETWEEN: APPLICANT VBB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 21 OCTOBER 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 A Federal Magistrate (FM Barnes) dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) which had affirmed a decision of a delegate of the Minister to refuse the appellant's application for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act): VBB v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FMCA 117. The appellant now appeals. 2 The learned Magistrate's decision was handed down after s 91R, introduced by the Migration Legislation Amendment Act (No 6) 2001 (Cth) (the 2001 amendment), came into effect on 1 October 2001. Although the protection visa application had been made before that date, the learned Magistrate correctly applied s 91R because of the transitional provision in cl 7(c)(iii) of Pt II of Sch 1 to the 2001 amendment. However, the appellant contends that there was a breach of natural justice in that the Tribunal failed to give him the opportunity to make submissions on the effect of s 91R. This is said to amount to jurisdictional error within the meaning of that concept as explained in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. 3 The appellant's argument before the learned Magistrate was that failure to give him this opportunity involved a breach of s 425 of the Act. This argument was not advanced on appeal. Rather the appellant relied on what was said to be a breach of the rules of natural justice. Counsel for the Minister formally opposed leave being granted to the appellant to raise this point for the first time. It is appropriate that leave be granted. No forensic prejudice is alleged by the Minister. The point is an important one, having implications beyond the present case.