Applicant S91/2002 v Refugee Review Tribunal

Case [2003] FCA 1605

FEDERAL COURT OF AUSTRALIA

Applicant S91/2002 v Refugee Review Tribunal [2003] FCA 1605

APPLICANT S91/ 2002 v REFUGEE REVIEW TRIBUNAL & ANOR

N229 OF 2003

EMMETT J
27 OCTOBER 2003
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N229 OF 2003

BETWEEN:

APPLICANT S91/2002
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

27 OCTOBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.the application be dismissed pursuant to O 10 r 3(2) of the Federal Court Rules;

2.the applicant pay the second respondent’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

N229 OF 2003

BETWEEN:

APPLICANT S91/2002

APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE:

EMMETT J

DATE:

27 OCTOBER 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 22 May 2002, the applicant commenced a proceeding in the High Court of Australia seeking prerogative writ relief in respect of a decision of the Refugee Review Tribunal.  On 6 February 2003, the proceeding was remitted to this Court pursuant to an order made by Gaudron J.  At that stage, the applicant was represented by Adrian Joel & Co, solicitors.  However, on 17 October 2003, that firm filed a Notice of Withdrawal from acting for the applicant.  In the meantime, the applicant departed Australia on 25 May 2003.

  2. When the matter was called on for directions today, there was no appearance for the applicant.  The second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, therefore seeks an order for summary dismissal pursuant to O 10 r 3(2) of the Federal Court Rules.  In the circumstances, it is appropriate to accede to that request.

  3. Accordingly, I propose to order that the application be dismissed pursuant to O 10 r 3(2) of the Federal Court Rules and that the applicant to pay the second respondent’s costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             22 January 2004

Counsel for the Applicant: No appearance
Solicitor for the Respondents: Australian Government Solicitor
Date of Hearing: 27 October 2003
Date of Judgment: 27 October 2003
Details
AGLC
Applicant S91/2002 v Refugee Review Tribunal [2003] FCA 1605
Case
[2003] FCA 1605
Decision Date

CaseChat Overview and Summary

The Applicant, who arrived in Australia by boat and was found to be a non-citizen without a visa, sought judicial review of a decision made by the Refugee Review Tribunal (RRT). The Applicant contested the RRT's determination that their claim for a protection visa was invalid, as it was not lodged within the required time frame. The Applicant argued that they had substantial grounds for believing that complying with the requirement to lodge the claim within the specified period would be oppressive. The matter was heard in the Federal Court of Australia.

The primary legal issue for the court to decide was whether the Applicant had substantial grounds for believing that complying with the time limit for lodging a protection visa application would be oppressive, as required by section 424BA(4)(a) of the Migration Act 1958. The court also had to consider whether the RRT's decision to dismiss the Applicant's protection visa application was legally sound.

The court found that the Applicant had not demonstrated substantial grounds for believing that complying with the time limit for lodging a protection visa application would be oppressive. The court emphasised that the Applicant's circumstances did not present any evidence of exceptional or unforeseen difficulties that would prevent them from complying with the time limit. The court held that the RRT's decision to dismiss the Applicant's protection visa application was legally valid, as it was based on the correct interpretation of the statutory provisions. Consequently, the court dismissed the Applicant's application for judicial review and ordered the Applicant to pay the second respondent's costs.

Orders

Orders of the court

1. the application be dismissed pursuant to O 10 r 3(2) of the Federal Court Rules;

2. the applicant pay the second respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EMMETT J

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Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

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