Applicant S361 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1618

FEDERAL COURT OF AUSTRALIA

Applicant S361 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1618 APPLICANT S361 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS N1408 OF 2003 EMMETT J 4 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1408 OF 2003

BETWEEN: APPLICANT S361 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

MS LESLEY HUNT 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 N1408 OF 2003

BETWEEN: APPLICANT S361 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

MS LESLEY HUNT 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 national of Bangladesh who arrived in Australia on 11 March 1988. He applied under the Migration Act 1958 (Cth) ('the Act') for refugee status and for refugee temporary entry permit on 23 May 1990. On 21 July 1994, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), decided that the applicant is not a refugee and made a decision refusing to grant the applicant protection entry permits. The applicant applied for review of the delegate's decision by the Refugee Review Tribunal ('the Tribunal') on 17 August 1994. On 12 December 1996, the Tribunal made a decision that it was not satisfied that the applicant was a refugee and affirmed the decision not to grant a protection visa. 2 The applicant subsequently became a party to a purported class action in the High Court. On 20 June 2003, the applicant filed a draft order nisi seeking prerogative writ relief in the High Court in respect of the Tribunal's decision. The grounds specified in the draft order nisi may be summarised 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 on his application before the Minister's delegate; (e) there has been a constructive failure of jurisdiction by the Minister's delegate as the Minister's delegate's decision failed to address the correct legal question; (f) there was a failure of the Minister's delegate to exercise jurisdiction because he did not reach a state of satisfaction based upon the correct understanding of the law; (g) the decision of the Minister's delegate was made in breach of the rules of natural justice.