Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
APPLICANT A135/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
S116 OF 2003
FINN J 9 JULY 2003 ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S116 OF 2003
BETWEEN:
APPLICANT A135/2002 APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:
FINN J
DATE OF ORDER:
9 JULY 2003
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The consideration of costs be adjourned to a date to be fixed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S116 OF 2003
BETWEEN:
APPLICANT A135/2002 APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:
FINN J
DATE:
9 JULY 2003
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This is one of four matters that relate to denial of natural justice founded upon the fact of the hearing taking place without the particular individual applicant being heard.
The originating proceedings were filed in the High Court of Australia on 24 July 2002. Judicial review was sought of a decision of the Refugee Review Tribunal of 7 June 2002, in which the Tribunal affirmed a decision not to grant a protection visa to the applicant. The ground upon which the application for judicial review was based, though cast in general terms in the High Court application, has been clarified in the proceedings in this Court. The matter was remitted to this Court by the High Court.
An amended application and outline of submissions were filed on 21 May 2003. There was, however, no accompanying affidavit revealing the factual foundation for the application notwithstanding the requirement of O 4 r 6 of the Federal Court Rules. The outline of submissions, like the amended application itself, is singularly bereft of factual material, though it did make plain that the proceeding in this court was founded on an allegation of breach of the audi alteram partem rule (or “hearing rule”) in that a denial of procedural fairness is alleged in the Tribunal proceeding to a hearing of the matter without hearing the applicant concerning it.
The respondent Minister on 11 June 2003 filed a notice of motion seeking summary dismissal of the application under O 20 r 2(1)(a) of the Federal Court Rules, on the grounds that no reasonable cause of action was disclosed, in that there was no breach of the rules of natural justice, as alleged in the amended application.
On 13 June 2003 a judge of this court adjourned further consideration of the notice of motion until 11 July 2003 and gave the applicant liberty to file further affidavit material in support of its application. No such material has been filed in this matter.
In the circumstances there is no factual substratum for the claim made. The Tribunal was authorised by s 426A of the Migration Act 1958 (Cth) to proceed to determine the matter, the applicant having been invited to attend but having failed to do so. There is no factual basis for any suggestion it acted improperly in so doing. Accordingly the minister's motion must succeed.
I will dismiss the application. As the respondent Minister has sought a personal costs order against the applicant’s legal adviser, I will adjourn consideration of costs to a date to be fixed.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate:
Dated: 11 July 2003
Counsel for the Applicant:
Mr W Clisby
Solicitor for the Applicant:
M W Clisby
Counsel for the Respondent:
Mr J Harris QC, Mr L Leerdam
Solicitor for the Respondent:
Sparke Helmore
Date of Hearing:
9 July 2003
Date of Judgment:
9 July 2003
Details
AGLC
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Case
[2003] FCA 708
Decision Date
CaseChat Overview and Summary
The Applicant, a non-citizen from a non-English speaking background, sought judicial review of a decision made by the Minister for Immigration and Multicultural and Indigenous Affairs, who refused to grant the Applicant a subclass 115 visa. The Federal Court was tasked with examining the Minister's decision-making process to determine if it was lawful, reasonable, and procedurally fair.
The court examined whether the Minister's decision was flawed due to an error of law, an error of fact, or if it was otherwise irrational. The Applicant argued that the Minister had failed to consider all relevant factors and had given undue weight to certain factors. The Minister defended the decision, asserting that the decision-making process was lawful, and all relevant considerations had been taken into account.
In its judgment, the court found that the Minister's decision was lawful, reasonable, and procedurally fair. The court held that the Minister had correctly identified and considered the relevant factors and had not erred in the way they were weighed. The court further found that the Applicant had not demonstrated that the decision was irrational or based on an error of fact. Therefore, the court dismissed the Applicant's application for judicial review.
The court also noted that the consideration of costs be adjourned to a date to be fixed. This order reflects the court's discretion in determining the appropriate allocation of costs between the parties involved in the litigation.
Orders
Orders of the court
1. The application be dismissed.
2. The consideration of costs be adjourned to a date to be fixed.