S339 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1681

FEDERAL COURT OF AUSTRALIA

S339 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1681 S339 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR NSD2469 OF 2003 EMMETT J 23 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2469 OF 2003

BETWEEN: APPLICANT S339 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT JUDGE: EMMETT J

DATE OF ORDER: 23 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Order 51A rule 5(1) not apply to the proceeding. 1. The application for order 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 NSD 2469 OF 2003

BETWEEN: APPLICANT S339 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 23 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Bangladesh. On 3 March 1998, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 13 March 1998, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 1 April 1998, the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. The applicant was represented by an adviser who did not attend the hearing of the Tribunal, and the hearing was conducted with the assistance of a Bengali interpreter. On 9 November 1999, the Tribunal affirmed the delegate's decision. 2 The applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi on 19 June 2003, together with an affidavit sworn on 10 June 2003. The matter was remitted to this Court pursuant to an order of the High Court following the decision of Muin v The Refugee Review Tribunal [2002] HCA 30. 3 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. 4 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.