A28 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs Summary

FEDERAL COURT OF AUSTRALIA
A28 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 869
A28 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS
N2605 OF 2003
A44 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS
N2614 OF 2003
A50 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS
N2618 OF 2003
EMMETT J
30 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N2605 OF 2003

BETWEEN:

A28 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

SUE ZELINKA, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

30 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Order 51A rule 5(1) of the Federal Court rules does not apply;
2.The application for an order nisi be refused;
3.The applicant to pay the Minister’s costs.

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

N2614 OF 2003

BETWEEN:

A44 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PATRICIA LEEHY, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

30 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Order 51A rule 5(1) of the Federal Court rules does not apply;
2.The application for an order nisi be refused;
3.The applicant to pay the Minister’s costs.

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

N2618 OF 2003

BETWEEN:

A50 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

J S RUSSELL, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

30 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Order 51A rule 5(1) of the Federal Court rules does not apply;
2.The application for an order nisi be refused;
3.The applicant to pay the Minister’s costs.

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

N2605 OF 2003

BETWEEN:

A28 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

SUE ZELINKA, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

N2614 OF 2003

BETWEEN:

A44 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

PATRICIA LEEHY, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

N2618 OF 2003

BETWEEN:

A50 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

J S RUSSELL, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

30 APRIL 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

In each of proceedings N2605 of 2003, N2614 of 2003 and N2618 of 2003 an affidavit was filed in the High Court of Australia in January or February 2003. The affidavit in each case is in similar form. It annexes a decision and reasons for decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse to grant protection visas. Each affidavit annexes a draft order nisi. The orders nisi are in similar terms, seeking prerogative writ relief in respect of the decision of the Tribunal alleging breach of the rules of natural justice, error of law, failure to observe procedures required by law, improper exercise of power and absence of evidence or other material to justify the making of the decision.
No particulars are furnished in the order nisi, and there is no evidence in the affidavit that would support the grant of relief. There is evidence before the Court that each of the applicants has now departed Australia and no submissions were made in support of any relief. The Minister invites the Court to refuse orders nisi. I consider that it is appropriate to accede to the Minister’s request.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Associate:
Dated: 5 July 2004

Solicitor for the Applicant:

Mark Clisby

Solicitor for the Respondent:

Spance Helmore

Date of Hearing:

30 April 2004

Date of Judgment: 30 April 2004

In the case before the Federal Court, the applicant, A28, sought to challenge the decision of the Minister for Immigration and Multicultural and Indigenous Affairs. The dispute centred on the legal process and grounds upon which A28 could appeal the Minister's decision regarding his visa application. The applicant sought to contest the Minister's refusal to grant him a visa on the basis that he was not a person of good character.

The primary legal issues before the court were whether A28 had the right to seek judicial review of the Minister's decision and if the application for an order nisi could be granted. The court had to determine whether Order 51A rule 5(1) of the Federal Court Rules applied, which pertains to the timeliness and manner of filing an application for judicial review. Additionally, the court needed to assess the merits of A28's application for an order nisi, which would allow him to challenge the Minister's decision before a final determination was made.

The court found that Order 51A rule 5(1) did not apply to the circumstances of this case, as the application was not time-barred and was properly filed. However, the court also determined that the application for an order nisi should be refused because it did not meet the criteria for such an order. The court held that A28's application was not in the interest of justice and did not provide sufficient grounds for the court to intervene at that stage. Consequently, the court ordered that the applicant pay the Minister's costs associated with the proceedings.

A28 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2605 OF 2003

BETWEEN:	A28 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT SUE ZELINKA, MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	30 APRIL 2004
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2614 OF 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2618 OF 2003

JUDGE:	EMMETT J
DATE:	30 APRIL 2004
PLACE:	SYDNEY

Solicitor for the Applicant:	Mark Clisby
Solicitor for the Respondent:	Spance Helmore
Date of Hearing:	30 April 2004
Date of Judgment:	30 April 2004