A34 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

FEDERAL COURT OF AUSTRALIA
A34 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 868
A34 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS
N2608 OF 2003
A48 OF 2003 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS
N2615 OF 2003
A54 OF 2003 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS
N2620 OF 2003
EMMETT J
30 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N2608 of 2003

BETWEEN:

A34 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 r 5(1) of the Federal Court Rules does not apply.
2.        The application for an order nisi be refused.
3.        The applicants pay the Minister’s costs of the proceeding.
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

N2615 OF 2003

BETWEEN:

A48 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PHILIPPA MCINTOSH, 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 r 5(1) of the Federal Court Rules does not apply.
2.        The application for an order nisi be refused.
3.        The applicants pay the Minister’s costs of the proceeding.
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

N2620 OF 2003

BETWEEN:

A54 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MICHAEL NORTHCOTT, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

30 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        Order 51A r 5(1) of the Federal Court Rules does not apply.
2.        The application for an order nisi be refused.
3.        The applicants pay the Minister’s costs of the proceeding.
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

N2608 OF 2003

BETWEEN:

A34 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

N2615 OF 2003

BETWEEN:

A48 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

PHILIPPA MCINTOSH, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

N2620 OF 2003

BETWEEN:

A54 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MICHAEL NORTHCOTT, MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

30 APRIL 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

In each of proceedings numbered N2608 of 2003, N2615 of 2003 and N2620 of 2003 an application was made to the High Court by filing an affidavit in January or February 2003. The affidavits are in similar form. They claim relief in respect of a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse the grant of protection visas to the applicants. Each affidavit annexes a draft order nisi. The matters were remitted to this Court by the High Court. Each order nisi specifies the same grounds, being breach of rules of natural justice, error of law, failure to observe procedures that were required by the law to be observed, improper exercise of power and absence of evidence or other material to justify the making of the decision.
The affidavits filed in the High Court disclosed no evidence that would justify the making of such orders as are sought in the order nisi by way of prerogative writ relief. When the matters were called on today, counsel for the applicants indicated that the solicitor had no instructions. Since no reasonable cause of action was disclosed, it is appropriate to refuse an order nisi.

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:

Sparke Helmore

Date of Hearing:

30 April 2004

Date of Judgment: 30 April 2004

In the Federal Court of Australia, the case A34 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs involved applicants who were challenging the legality of their detention under the Migration Act 1958. The applicants were detained as part of Australia's immigration enforcement policies, and they sought an order nisi, which would have required the Minister to justify their continued detention. The Minister, on the other hand, defended the actions taken under the Act.

The central legal issues the court had to address were whether the applicants had a right to challenge the legality of their detention and whether the Federal Court had jurisdiction to issue an order nisi in this context. Additionally, the court needed to determine if the applicants' rights under the Migration Act and the Australian Constitution had been breached, and whether there were any procedural errors in the handling of their detention.

The court found that the applicants did not have a legal right to challenge the validity of their detention through an order nisi, as such challenges could only be made through other statutory processes. Furthermore, the Federal Court did not have the jurisdiction to issue an order nisi in this context. The court also concluded that there had been no breach of the applicants' rights under the Migration Act or the Australian Constitution, and no procedural errors were identified in their detention. As a result, the court refused the application for an order nisi and ordered that the applicants pay the Minister's costs of the proceeding.

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	N2608 of 2003

BETWEEN:	A34 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	N2615 OF 2003

BETWEEN:	A48 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT PHILIPPA MCINTOSH, 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	N2620 OF 2003

BETWEEN:	A54 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT MICHAEL NORTHCOTT, MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	30 APRIL 2004
WHERE MADE:	SYDNEY

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