M1027/03 v Refugee Review Tribunal

FEDERAL COURT OF AUSTRALIA

M1027/03 v Refugee Review Tribunal [2004] FCA 733

M1027/2003  v  GRAEME BREWER sitting as the REFUGEE REVIEW TRIBUNAL,
COMMONWEALTH OF AUSTRALIA and SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 470 of 2004

RYAN J

8 JUNE 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 470 of 2004

BETWEEN:

M1027/2003
Applicant

AND:

GRAEME BREWER sitting as the REFUGEE REVIEW TRIBUNAL
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Third Respondent

JUDGE:

RYAN J

DATE OF ORDER:

8 JUNE 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the respondents’ costs of the application, to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 470 of 2004

BETWEEN:

M1027/2003
Applicant

AND:

GRAEME BREWER sitting as the REFUGEE REVIEW TRIBUNAL
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Third Respondent

JUDGE:	RYAN J
DATE:	8 JUNE 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court an application for leave to appeal from an order made by Heerey J on 22 March 2004.  His Honour then refused to grant an order nisi on an application by the applicant for the issue of prerogative writs arising out of a decision by the first respondent (“the Tribunal”) on 19 November 1999, affirming a decision of a delegate of the third respondent (“the Minister”) to refuse the applicant a protection visa.  The present application had been instituted in the High Court on 30 May 2003 and was remitted to this Court by order of the High Court at some time between that date and early September 2003.

2. Heerey J, in his reasons for judgment on 22 March 2004, noted that, as long ago as 30 June 1997, the applicant had applied for a protection visa which, on 30 July 1997, had been refused by a delegate of the Minister. That refusal was affirmed by the Tribunal, as recited above, on 19 November 1999. Thereafter, the applicant commenced proceedings in this Court under what was then Pt 8 of the Migration Act 1958 (Cth). That application was dismissed by Weinberg J on 2 May 2001. It was more than two years later that the applicant sought prerogative writs in the High Court.

3. Heerey J also noted that the applicant’s application to the High Court had been as a member of the class proceeding considered by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 (“Muin”).  In that case the Minister's delegate had relied on some 31 items of evidence, which became known as the Part B documents.  After the applicant had applied to the Tribunal for review of the delegate's refusal to grant him a protection visa,…