S383 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1588

FEDERAL COURT OF AUSTRALIA S383 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1588 APPLICANT S383 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR NSD 2589 OF 2003 EMMETT J 9 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2589 OF 2003

BETWEEN: APPLICANT S383 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 9 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Order 51A rule 5(1) not apply to the proceeding. 2. The application for orders nisi be refused. 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 NSD2589 OF 2003

BETWEEN: APPLICANT S383 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 9 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Bangladesh. On 28 October 1999, the applicant lodged an application for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) ('the Act'). On 3 December 1999, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 13 December 1999, the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 8 March 2002, the Tribunal affirmed the delegate's decision ('the Tribunal's Decision'). 2 The applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi on 30 June 2003, together with an affidavit affirmed on that date. The matter was remitted to this Court pursuant to an order of the High Court following the decision of Muin v Refugee Review Tribunal [2002] HCA 30. On 12 November 2004, the District Registrar of the Federal Court wrote to the applicant inviting him to make written submissions on the question of whether there is an arguable case for the grant of the relief claimed by the draft order nisi in the material before the Court. There has been no response to that letter. For the reasons set out in Applicant S195 v Refugee Review Tribunal [2005] FCA 1571, it is appropriate for this matter to be dealt with on the papers and for Order 51A rule 5(1) of the Federal Court Rules to be dispensed with. 3 The grounds upon which relief was claimed in the draft order nisi were as follows: '(a) the third respondent did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Actor regulations to be observed in connection with the making of the decision were not observed.