S342 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1682

FEDERAL COURT OF AUSTRALIA

S342 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1682 APPLICANT S342 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR NSD2477 OF 2003 EMMETT J 23 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2477 OF 2003

BETWEEN: APPLICANT S342 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.

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 NSD2477 OF 2003

BETWEEN: APPLICANT S342 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 12 March 1998, the applicant lodged an application for a protection (Class AZ) visa under the Migration Act 1958 (Cth) ('the Act'). On 24 March 1998, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 21 April 1998, the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the decision. The applicant attended a hearing before the Tribunal on 5 April 2000. At the time of the hearing before the Tribunal, the applicant was represented by an adviser who did not attend the hearing. On 11 May 2000, the Tribunal affirmed the delegate's decision. 2 The applicants commenced a proceeding in the High Court of Australia by filing a draft order nisi on 19 June 2003, together with an affidavit sworn the day before. 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 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 ground upon which relief was claimed in the draft order nisi was 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.