Applicants S266/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 313

FEDERAL COURT OF AUSTRALIA

Applicants S266/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 313 MIGRATION – application for judicial review – protection visa – where Tribunal not satisfied that there was a well-founded fear of persecution within the meaning of the Convention – where no jurisdictional error established – application dismissed. NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297 referred to Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112 referred to APPLICANTS S266/2002 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 376 OF 2003 BEAUMONT J 15 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 376 OF 2003

BETWEEN: APPLICANTS S266/2002 (OTHER THAN THE FIFTH APPLICANT)

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 15 MARCH 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed, with 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 N 376 OF 2003

BETWEEN: APPLICANTS S266/2002 (OTHER THAN THE FIFTH APPLICANT)

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: BEAUMONT J

DATE: 15 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT (ON APPLICATION FOR ORDER ABSOLUTE)

Beaumont j:

Introduction 1 This proceeding was commenced by the filing of a draft order nisi in the High Court on 16 August 2002. In February 2003, Gaudron J, without granting the order nisi, remitted the application to this Court, and further ordered that leave be granted to the applicants to amend the draft order nisi. 2 By their second amended draft order nisi (which, by consent, is now to be treated as an application for an order absolute, without any necessity to consider whether nisi was appropriate (cf. NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297), the applicants seek, by way of judicial review, the following relief: '1. A writ of certiorari directed to the second respondents removing the decision of the [Refugee Review Tribunal] dated 15 February 2002 into this court to be quashed. 2. A writ of Mandamus directed to the second respondent directing them to hear and determine the applicant/prosecutor's protection visa application according to law.' 3 The grounds of review relied upon are stated by the applicants as follows: 'Grounds of Review 1. Jurisdictional error by the second respondent in relation to the decision on the Applicants' and the Australian born child Applicant's protection visa 2. A constructive failure to exercise jurisdiction by the second respondent in relation to the decision on the Applicants' and the Australian born child Applicant's protection visa 3. Denial of Natural Justice by the second respondent in relation to the decision on the Applicants' and the Australian born child Applicant's protection visa 4. Failure to take into account relevant consideration/take account of irrelevant considerations in the decision of the second respondent in relation to the decision on the Applicants' and the Australian born child Applicant's protection visa'.