Applicant M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218

FEDERAL COURT OF AUSTRALIA

Applicant M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218 APPLICANT M189 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR V348 OF 2003 EMMETT J 31 OCTOBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY V348 OF 2003

BETWEEN: APPLICANT M189 OF 2002

APPLICANT

AND: MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 31 OCTOBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the first 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

NEW SOUTH WALES DISTRICT REGISTRY V348 OF 2003

BETWEEN: APPLICANT M189 OF 2002

APPLICANT

AND: MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 31 OCTOBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Sri Lanka. He arrived in Australia on 19 March 1995 and, on 30 June 1997, he lodged an application for a protection (class AZ) visa under the Migration Act 1958 (Cth) ('the Act'). On 2 February 1999, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa and, on 26 February 1999, the applicant applied for a review of that decision by the second respondent, the Refugee Review Tribunal ('the Tribunal'). On 16 November 2000, the Tribunal affirmed the decision not to grant a protection visa. 2 The applicant then applied to the Federal Court of Australia for review of the decision of the Tribunal under Pt 8 of the Act. On 29 August 2001, Beaumont J ordered that the application be dismissed with costs: see Abeysinghe v Minister for Immigration and Multicultural Affairs [2001] FCA 1201. The applicant then appealed to the Full Court of the Federal Court of Australia. On 30 April 2002, a Full Court, constituted by Ryan, Carr and Conti JJ, ordered that the appeal be dismissed with costs: see Abeysinghe v Minister for Immigration and Multicultural Affairs [2002] FCA 511. An application for leave to appeal to the High Court of Australia was dismissed on 11 November 2002. 3 On the same day, 11 November 2002, the applicant commenced a proceeding in the High Court of Australia seeking a writ prohibiting the Minister from acting upon, giving effect to, or proceeding further upon the decision of the Tribunal. The applicant also claimed writs of certiorari and mandamus in respect of the proceeding before the Tribunal. On 7 February 2003, Hayne J ordered that the further proceedings in the application to the High Court be remitted to the Federal Court. 4 The applicant seeks to impugn the decision of the Tribunal on the basis that the proceeding in the Tribunal involved a denial of procedural fairness in that, in the course of a hearing before the Tribunal, the Tribunal failed to advise the applicant of adverse conclusions at which it arrived that would not obviously be open on the known material. The Minister contests that assertion and says that, even if the assertion were made out, the proceeding was commenced out of time and there should be no enlargement of time to permit the proceeding to be pursued. The Minister also contends that the applicant is estopped from raising in this proceeding the contentions now relied on having regard to the determination of similar questions in the earlier proceeding in the Federal Court. The Tribunal has, quite properly, played no part in the present proceeding.