S635/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1162

FEDERAL COURT OF AUSTRALIA

S635/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1162 MIGRATION – Refugee Review Tribunal refused applicant protection visa – application for review of to Federal Court under old Part 8 Migration Act dismissed – application to High Court for constitutional writs – High Court remitted part of the proceeding to Federal Court – remitted proceeding raised illogicality ground not raised in previous application for review – remitted proceedings dismissed – Anshun estoppel and the Full Court in Gamaethige followed – appeal dismissed by Full Court – no Anshun Estoppel but followed Full Court in Gamaethige – application for special leave to appeal to High Court refused – Minister declined to exercise discretionary power under s 417 – application to High Court for constitutional writs – proceedings remitted to Federal Court

PRACTICE AND PROCEDURE – whether current proceedings constitute an abuse of process – where illogicality ground raised in special leave application to High Court – no abuse of process but no illogicality found – no jurisdictional error

Judiciary Act 1903 (Cth) Migration Act 1958 (Cth)

"BC" v Minister for Immigration & Multicultural Affairs [2001] FCA 393 cited BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669; (2001) 67 ALD 60 referred to BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 followed Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 referred to Miller v University of New South Wales (2003) 200 ALR 565 cited Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to Morris v the Queen (1987) 163 CLR 454 referred to NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 followed Rippon v Chilcotin (2001) 53 NSWLR 198 cited Walton v Gardner (1993) 177 CLR 378 cited