S372 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1785

FEDERAL COURT OF AUSTRALIA

S372 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1785 S372 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N2662 OF 2003 EMMETT J 23 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N2662 OF 2003

BETWEEN: S372 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

GILES SHORT, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 23 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Order 51A r 5(1) of the Federal Court Rules not apply to the proceeding; 2. The application for an order nisi be refused. 3. The applicant pay the costs of the first respondent. 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 N2662 OF 2003

BETWEEN: S372 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

GILES SHORT, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: EMMETT J

DATE: 23 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant in this matter arrived in Australia as a visitor in June 1998. He arrived, it seems, on an Indian passport in a false name. He now claims to have been brought up in Bangladesh. At any rate, he applied for a protection visa under the Migration Act 1958 (Cth) ('the Act') in the name appearing in the passport. That application was lodged on 21 July 1998. On 14 August 1998 a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused the grant of a protection visa. On 7 September 1998 the applicant lodged with the Refugee Review Tribunal ('the Tribunal'), an application for review of the delegate's decision. On 5 April 2001 the Tribunal, through the third respondent, affirmedthe decision not to grant a protection visa. The decision of the Tribunal was handed down on 1 May 2001. 2 It appears that the applicant was granted a bridging visa pending the determination of his application for protection visa. The bridging visa expired on 29 May 2001, and the applicant was apparently detained on 13 June 2003. On 25 June 2003 he commenced a proceeding in the High Court of Australia by filing an affidavit sworn by him on 25 June 2003 and a draft order nisi. On 25 August 2003 that application was remitted to this Court. For reasons that I do not understand at the moment, it has only recently been ascertained that the applicant is still in detention. For that reason the matter has been brought before me for directions. 3 The affidavit does no more than annex the reasons for the delegate's decision and the reasons for the Tribunal's decision. In acknowledgment of the time limits contained in the High Court Rules concerning applications for constitutional writ relief, the affidavit asserts that the time limits contained in the High Court Rules are invalid as being inconsistent with s 75(v) of the Constitution. By the draft order nisi, the applicant claims certiorari and mandamus in respect of both of the decision of the delegate of 14 August 1998 and the decision of the Tribunal of 5 April 2001. 4 Seven grounds are specified, although no particulars are furnished in respect of any of the grounds. The grounds might be summarised as follows: (a) the member of the Tribunal did not follow the proper procedure as required by the Act;