Applicant S341 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1613

FEDERAL COURT OF AUSTRALIA

Applicant S341 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1613 APPLICANT S341 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS N998 OF 2003 EMMETT J 4 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N998 OF 2003

BETWEEN: APPLICANT S341 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

D KELLEGHAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 4 DECEMBER 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 N998 OF 2003

BETWEEN: APPLICANT S341 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

D KELLEGHAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: EMMETT J

DATE: 4 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Bangladesh. He arrived in Australia on 2 September 1999 and, on 1 October 1999, he lodged an application for a protection (class AZ) visa under the Migration Act 1958 (Cth) ('the Act'). On 17 November 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 1 December 1999, the applicant applied for review of that decision by the Refugee Review Tribunal ('the Tribunal'). On 19 May 2000, the Tribunal affirmed the decision not to grant a protection visa. The applicant applied to this Court for review of that decision and that application was dismissed. 2 The applicant subsequently became a party to a proceeding in the High Court of Australia. On 19 June 2003, the applicant filed a draft order nisi seeking prerogative writ relief in relation to the decision of the Tribunal. The grounds upon which that relief was sought were stated in general terms as follows: (a) the Tribunal did not follow the proper procedure required by the Act; (b) the Tribunal's decision was affected by an error of law, jurisdictional error and lack of procedural fairness; (c) there was no evidence or other material to justify the making of the decision; (d) the applicant was denied natural justice; (e) there was a constructive failure of jurisdiction by the Minister's failure to address the correct legal question; (f) there was a failure by the Minister to exercise his jurisdiction because he did not reach a state of satisfaction upon a correct understanding of the law; (g) the decision of the delegate was made in breach of rules of natural justice.