S53 of 2002 v Refugee Review Tribunal [2003] FCA 1173

FEDERAL COURT OF AUSTRALIA

S53 of 2002 v Refugee Review Tribunal [2003] FCA 1173 MIGRATION – application for an order nisi for constitutional writs – denial of procedural fairness – whether the applicant relied on letters sent by the Refugee Review Tribunal that it would have regard to certain documents before making its decision – whether Muin v Refugee Review Tribunal 190 ALR 601 assists the applicant in all the circumstances of this case Migration Act 1958 (Cth) s418(3) Muin v Refugee Review Tribunal 190 ALR 601 distinguished Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam 195 ALR 502 followed S53 OF 2002 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 46 of 2003 BRANSON J 27 OCTOBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N46 of 2003

BETWEEN: S53 OF 2002

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 27 OCTOBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an order nisi for a writ of mandamus and a writ of certiorari be dismissed.

2. The applicant pay the costs of the second respondent.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N46 of 2003

BETWEEN: S53 OF 2002

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: BRANSON J

DATE: 27 OCTOBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 The applicant commenced this proceeding in the High Court of Australia seeking relief by way of constitutional writs in respect of a decision of the Refugee Review Tribunal ('the Tribunal') of 24 November 2000. By its decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ('the Minister'). The proceeding was remitted to this Court by order of Gaudron J made on 25 November 2002. The first respondent filed a submitting appearance. The second respondent appeared by legal representative to oppose the granting of the relief sought by the applicant. 2 The draft order nisi the subject of these proceedings sets out the following two grounds of review: '1. On 5 March 1998 an officer of the Department of Immigration and Multicultural Affairs ("the Department") made a decision refusing to grant the prosecutor a protection visa ("the Department's decision"). The prosecutor applied to the first respondent for review of the Department's decision. Section 418(3) of the Migration Act 1958 (Cth) provided at all relevant times that if an application for review is made to the first respondent the Secretary of the Department must give the Registrar of the first respondent various documents that are in the Secretary's possession or control and are considered by the Secretary to be relevant to the review of the decision. The documents referred to in Part B of the Department's decision were in the possession or control of the Secretary. It appears that the Secretary did not give a number of these documents to the Registrar, giving rise to a contravention of s 418(3). The contravention of s 418(3) gives rise to jurisdictional error of a type for which relief can be granted under Part 8A of the Migration Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 and the Migration Legislation Amendment Act (No 1) 2001. 2. By letter the first respondent invited the prosecutor to come to a hearing before the first respondent. The first respondent stated in the letter that it "has looked at all the material relating to your application". In fact, the first respondent had not looked at all the material relating to the prosecutor's application, giving rise to a denial of natural justice. Denial of natural justice is jurisdictional error of a type for which relief can be granted under Part 8A of the Migration Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 and the Migration Legislation Amendment Act (No 1) 2001.'