Applicant M186/2003 v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICANT M186/2003 v MINISTER FOR IMMIGRATION & ANOR [2004] FMCA 152

MIGRATION – High Court application for constitutional writs, declaratory and injunctive relief remitted to the Federal Court and transferred to the Federal Magistrates Court – whether arguable case – whether time limits apply – whether time should be enlarged.

Migration Act 1958, ss.476, 476(4), 477

Muin v Refugee Review Tribunal (2002) HCA 30 (2002) 190 ALR 601
Applicant M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448 (Unreported decision of Marshall J
8 December 2003).
R v Northumberland Compensation Appeal Tribunal; ex parte Shaw (1952)
1 All Eng LR 122
General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125

Re Commonwealth of Australia Ex parte Marks (2000) 177 ALR 491

Applicant: APPLICANT M186/2003

Respondents: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

File No: MZ 1511 of 2003

Delivered on: 18 March 2004

Delivered at: Melbourne

Hearing Date: 24 February 2004

Judgment of: McInnis FM

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr C Fairfield

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application for order nisi is refused.

2. The applicant shall pay the respondents' costs fixed in the sum of $2000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1511 of 2003

APPLICANT M186/2003

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

Respondents

REASONS FOR JUDGMENT

Introduction – Generic Issues

1. This is one of a number of applications which for convenience were heard together by the Court over a period of two days.  The applications were considered as a group as they have a number of common features or what I would describe as generic issues which are relevant to each application.  The proceedings all relate to visa applications under the Migration Act 1958 (the Migration Act).

2. In each application the applicants had initially commenced proceedings in the High Court of Australia seeking declarations or writ of prohibition or for an injunction or for orders in the nature of certiorari or mandamus against the respondents.  Each case had been remitted by the High Court of Australia to the Federal Court of Australia.  Each relates to applications for protection visas refused by the Refugee Review Tribunal (the RRT).  Each case joined in representative proceedings in the High Court in an application which became known as Muin v Refugee Review Tribunal (2002) HCA 30 (2002) 190 ALR 601 (Muin).

3. It is also relevant to note that in each case the applications had been transferred by the Federal Court of Australia to the Federal Magistrates Court.  Prior to the transfer, however, orders of a similar kind were made in each application, though with varying dates.  In the present application orders were made by Marshall J on 15 October 2003 in the following terms:-

   “1.The application for an order nisi and the hearing of return of the order nisi, if granted, be conducted as a single…