Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

HIGH COURT OF AUSTRALIA

McHUGH J

RE THE MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS OF THE

COMMONWEALTH OF AUSTRALIA & ORS RESPONDENTS

EX PARTE DURAIRAJASINGHAM PROSECUTOR

Re The Minister for Immigration and Multicultural Affairs;

Ex parte Durairajasingham

[2000] HCA 1

21 January 2000

S98/1996

ORDER

Application dismissed with costs.

Representation:

R T Beech-Jones for the first respondent (instructed by Australian Government Solicitor)

No appearance for the second and third respondents

R W Killalea for the prosecutor (instructed by Sheila Foliaki-Singh & Associates)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham

Immigration law and Administrative law – Refugee – Refugee Review Tribunal decision refusing to grant protection visa – Application in original jurisdiction of High Court for prerogative relief – Whether Tribunal failed to take into account relevant considerations and evidence – Whether Tribunal failed to consider all available inferences from evidence – Whether s 430(1) of the Migration Act 1958 (Cth) required the Tribunal to refer to evidence contrary to its findings – Whether a breach of s 430(1) amounts to a jurisdictional error grounding prerogative relief.

Constitutional law – Federal jurisdiction – Role of the High Court under the Constitution – Extent of High Court's jurisdiction to grant certiorari pursuant to s 75(v) of the Constitution.

Words and phrases – "well-founded fear of persecution" – "reasons for the decision".

The Constitution, s 75(v).

Migration Act 1958 (Cth), ss 415(1), 420, 430(1).

Convention relating to the Status of Refugees of 1951.

1. McHUGH J. This is an application in the original jurisdiction of the Court, made pursuant to s 75(v) of the Constitution, for prerogative relief against the Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia ("the Minister") as first respondent, Roslyn Smidt sitting as the Refugee Review Tribunal ("the Tribunal") as second respondent, and Shunmugam Nganasamantham in his capacity as principal member of the Tribunal as third respondent. 2. In substance, Mr Durairajasingham, ("the prosecutor") contends that a decision of the Tribunal made on 9 April 1996 affirming that the prosecutor was not entitled to a protection visa (the "Tribunal's Decision") was a nullity. In his amended application, the prosecutor seeks orders nisi for: