S366 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1590

FEDERAL COURT OF AUSTRALIA S366 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1590 APPLICANT S366 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR NSD2568 OF 2003 EMMETT J 9 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2568 OF 2003

BETWEEN: APPLICANT S366 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 NSD2568 OF 2003

BETWEEN: APPLICANT S366 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 15 January 1997, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 30 May 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 30 June 1997, the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 7 August 1998, 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 20 June 2003, together with an affidavit affirmed on 19 June 2003 seeking relief in respect of the Tribunal's decision. 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 Act or regulations to be observed in connection with the making of the decision were not observed. (b) The third respondent's decision was affected by an 'error of law' and 'Jurisdictional error' and lack of procedural fairness. (c) There was no evidence or other material to justify in making of the decision. (d) The applicant was denied natural justice in being denied a reasonable opportunity to be heard on his application before the first respondent. (e) There has been a constructive failure of jurisdiction by the first respondent's decision of 30 May 1997, failed to address the correct legal question committed to him by not applying himself to all of those issues he was required to consider in determining the matter before him. (f) There was a failure of the first respondent's agent to exercise his jurisdiction in the decision of 30 May 1997 because he did not reach a state of satisfaction bases upon a correct understanding of the law on which he acts. (g) The decision of the first respondent's agent of 30 May 1997 was made in breach of rules of natural justice.