NART v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 865

FEDERAL COURT OF AUSTRALIA

NART v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 865 NART v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N700 OF 2003 STONE J 7 JULY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 700 OF 2003

BETWEEN: NART

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 7 JULY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. An order in the nature of certiorari be issued, directed to the Refugee Review Tribunal removing its decision in this matter, made on 29 April 2003, into this Court, for the purpose of quashing it. 2. The Refugee Review Tribunal's decision of 29 April 2003 be quashed. 3. An order in the nature of mandamus be issued, directed to the Refugee Review Tribunal, requiring it to hear and determine the applicant's application for review according to law. 4. The respondent pay the applicant'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 N 700 OF 2003

BETWEEN: NART

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 7 JULY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 The applicant arrived in this country on 25 June 2001 accompanied by her half-sister. The sisters made separate applications for protection (class XA) visas. Each application was refused successively by a delegate of the respondent and the Refugee Review Tribunal ('Tribunal'). The sisters' applications were considered by the same Tribunal member who rejected them on the same grounds although in separate decisions. Both sisters applied to this Court, under s 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal's decisions. The application for review of the applicant's half-sister is the subject of a separate judgment; see NARU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 864 ('NARU'). 2 The applicant is a citizen of Kenya who spent some years as a competitive athlete and, from about 1986, worked as an athletics coach. She came to Australia to compete for Kenya in the World Veterans' Athletics Championships. The circumstances that the applicant claims give rise to a well-founded fear of persecution should she be returned to Kenya are virtually identical to those relied on by her half-sister. I have described those claims and the Tribunal's reasons for decision in NARU and I do not propose to repeat those claims here except where there are relevant differences.