NAZL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 945

FEDERAL COURT OF AUSTRALIA

NAZL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 945 NAZL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N22 OF 2004 EMMETT J 28 APRIL 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N22 OF 2004

BETWEEN: NAZL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 28 APRIL 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. 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 N22 OF 2004

BETWEEN: NAZL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 28 APRIL 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a national of Pakistan. He arrived in Australia on 11 December 2002, and on 9 January 2003 lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 5 February 2003 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa, and on 5 March 2003 the applicant sought a review of that decision by the Refugee Review Tribunal ('the Tribunal'). On 6 November 2003 the Tribunal affirmed the decision not to grant a protection visa. 2 On 6 January 2004 the applicant commenced this proceeding in this Court seeking, in effect, constitutional writ relief pursuant to s 39B of the Judiciary Act 1903 (Cth). 3 The Minister contends that the decision of the Tribunal, which was notified to the applicant on 3 December 2003, is a privative clause decision as that term is defined in s 474(2) of the Act. If that contention is correct then not only is the application out of time, but any interference by the Court in the decision of the Tribunal would be precluded by the operation of s 474(1) of the Act, which provides that a privative clause decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any Court and is not subject to any constitutional writ relief in any Court on any account. 4 Section 474 of the Act provides that a privative clause decision is a decision of an administrative character made under the Act. On its face, of course, the decision of the Tribunal of 6 November 2003 is a privative clause decision, because it appears to be a decision of an administrative character made under the Act. However, if the decision was affected by jurisdictional error, then the Act would not operate in the manner in which I have just described. The application filed on 6 January 2004 refers to grounds for review stated in the accompanying affidavit filed on the same day. The grounds in that affidavit are as follows: (a) the decision made by the Tribunal was an improper exercise of the powers conferred by the Act and the Regulations; (b) the decision involved an error of law being an incorrect interpretation of the applicable laws and an incorrect application of law to the facts.