NBBZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 838

FEDERAL COURT OF AUSTRALIA

NBBZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 838 MIGRATION – constitutional writ relief – applicant's mode of entry into Australia in dispute – no entry record into Australia in applicant's name – whether absence of evidence of entry record leads to inference in favour of applicant – Tribunal's failure to make positive finding of identity of applicant – whether Tribunal's failure to make further inquiries amounts to Wednesbury unreasonableness Migration Act 1958 (Cth), s 424A Judiciary Act 1903 (Cth), s 39B

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 NBBZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR N199 OF 2004 EMMETT J 30 JUNE 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N199 OF 2004

BETWEEN: NBBZ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 30 JUNE 2004

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 N199 OF 2004

BETWEEN: NBBZ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 30 JUNE 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant claims to be a citizen of Sri Lanka. On 15 October 2002, he lodged an application for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) ('the Act'). On 27 February 2003, a delegate of the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), refused to grant a protection visa and on 20 March 2003 the applicant applied to the second respondent, the Refugee Review Tribunal ('the Tribunal'), for review of the delegate's decision. On 9 January 2004, the Tribunal affirmed the decision not to grant a protection visa. 2 The applicant then applied to the Court for constitutional writ relief pursuant to s 39B of the Judiciary Act 1903 (Cth). The grounds upon which relief is claimed are that: (a) the Tribunal erred in law in arriving at the decision to affirm the Minister's decision in that it failed to consider relevant matters and failed to take into account relevant considerations; (b) the Tribunal exceeded jurisdiction in arriving at its decision in that the applicant was not accorded natural justice; (c) the Tribunal failed to comply with s 424A of the Act in arriving at its decision; and in the alternative (d) the decision of the Tribunal was irrational in the sense considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 3 It will be necessary to consider each of those grounds separately. However, before doing so I shall say something about the findings made by the Tribunal and its reasons for those findings.