NABO v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 707

FEDERAL COURT OF AUSTRALIA

NABO v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 707

APPLICANT NABO of 2002 v MINISTER FOR IMMIGRATION
& MULTICULTURAL & INDIGENOUS AFFAIRS

N 62 of 2002

WHITLAM J
21 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 62 of 2002

BETWEEN:	APPLICANT NABO OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	21 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The respondent’s objection to competency is upheld.

2.The application is dismissed.

3.The applicant is to pay the 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	N 62 of 2002

BETWEEN:	APPLICANT NABO OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	21 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 29 January 2002 the applicant filed what purported to be an application for an order of review in respect of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister refusing to grant the applicant a protection visa.  The Tribunal’s decision was handed down on 19 December 2001.

2. The Minister objected to the competency of the proceeding as the decision which the applicant sought to make the subject of the purported application was a privative clause decision under s 474 of the Migration Act 1958 (“the Act”).  It was therefore not subject to judicial review in this Court.

3. Counsel for the Minister accepted that an application could be made to the Court under s 39B of the Judiciary Act 1903. However no such application was before the Court. Even had there been an application to amend the proceeding in order to bring an application under s 39B, an objection would have been pursued because such a proceeding would be out of time and contrary to the requirements of s 477 of the Act.

4. Although the applicant wished to communicate with the Court through a Georgian interpreter, it was not possible to get a Georgian interpreter for the hearing.  However, I am satisfied that the applicant understood sufficiently the proceedings with the assistance of a Russian interpreter.  It appears from an examination of the papers in the so-called "green book" that the application for a protection visa was prosecuted with the assistance of Russian interpreters, not Georgian interpreters.  Furthermore, the fundamental point on which the application was dismissed was a simple one relating to its timing.

5. Accordingly the objection to competency is upheld and the application is dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             3 June 2002

The applicant appeared in person.

Counsel for the respondent:	S B Lloyd
Solicitors for the respondent:	Sparke Helmore
Date of hearing:	21 May 2002
Date of judgment:	21 May 2002