Fernando v Minister for Immigration & Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 1375

PRACTICE AND PROCEDURE - application for review of Minister's decision not to grant a visa filed out of time - whether Refugee Review Tribunal nevertheless had jurisdiction - a number of single judge decisions establishing that Tribunal does not have jurisdiction in such circumstances - principle of "comity" - whether decisions "clearly wrong".

Migration Act 1958 (Cth), s 412, s 412(1)(b), s 478(2)
Convention Relating to the Status of Refugees, Arts 16(2), 32(1), 32(2)
International Covenant on Civil and Political Rights, Art 3

Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 referred

Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 cited

Nguyen v M W Gerkens, Refugee Review Tribunal (FCA, 6 October 1996, Ryan J) referred
Santos v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 229 referred
Dawai v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 379 referred
Shrestha v Minister for Immigration and Multicultural Affairs [1997] FCA 1051 discussed Tjandra v Minister for Immigration and Multicultural Affairs [1998] FCA 276 referred
Ismail v Minister for Immigration and Multicultural Affairs [1998] FCA 1654 referred
Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 353 discussed
Naheem v Minister for Immigration and Multicultural Affairs [1999] FCA 1360 referred
Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 discussed
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 discussed

Accident Compensation Commission v Murphy [1988] VR 444 referred

Cole v Director-General of Youth and Community Services (1987) 7 NSWLR 541 referred

KALUTARAGE GNANASIRI FERNANDO v PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

A18 OF 1999

FINN J

8 OCTOBER 1999

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A18 OF 1999

BETWEEN:	KALUTARAGE GNANASIRI FERNANDO Applicant
AND:	PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	FINN J
DATE OF ORDER:	8 OCTOBER 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.        the application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A18 OF 1999

BETWEEN:	KALUTARAGE GNANASIRI FERNANDO Applicant
AND:	PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	FINN J
DATE:	8 OCTOBER 1999
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. The comity principle applied by judges of this Court at first instance is well settled:  a decision of another judge that is not distinguishable will be followed unless it is thought to be clearly wrong:  see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. That principle provides the short answer to the present application.

2. The issue raised in the application is now well worn in first instance decisions of the Court. It is whether, notwithstanding the time limit…