NACH v MIMIA

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACH v MINISTER FOR IMMIGRATION [2002] FMCA 110

MIGRATION – Appeal from a decision of the Refugee Review Tribunal – jurisdictional error – whether Tribunal made jurisdictional error in not accepting the applicant's explanations – the approach taken in relation to application of the privative clause under section 474(1) of the Migration Act 1958 (Cth) – decision of Refugee Review Tribunal confirmed.

Migration Act 1958 (Cth) section 36(2), ss. 61(1), 474
Judiciary Act 1903 (Cth) section 39B

R v Hickman; ex parte Fox v Clinton (1945) 70 CLR 598
SAAD v Minister for Immigration and Multicultural Affairs (2002)FCA 206
SBAE v Minister for Immigration and Multicultural and Indigenous Affairs (2002)FCA 479
VACC v MIMIA (2002) FCA 573
WABB v MIMIA (2002) FMCA 94

Applicant: NACH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: WZ91 of 2002

Delivered on: 19 June 2002

Delivered at: Melbourne

Hearing Date: 7 June 2002

Judgment of: Bryant CFM

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Solicitors for the Applicant: In Person
NACH
C/- Port Headland IRPC
PO Box 3777
Port Headland  WA  6721

Counsel for the Respondent: Mr MacLiver

Solicitors for the Respondent: Mr D Blades 
Australian Government Solicitor
GPO Box U1994
Perth  WA  6845

ORDERS

1. That the Application be dismissed

2. That the Applicant pay the Respondents costs pursuant to the Federal Magistrates Court Rules Part 21.10.

IT IS CERTIFIED

1. THAT pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance as Counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

WZ 91 of 2002

NACH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant who is an Iranian citizen arrived in Australia by boat on the 25 March 2001.  He lodged an application for a protection (Class XA) Visa under the Migration Act 1958 (“The Act”). The delegate of the Minister for Immigration and Multicultural Affairs (the Minister) refused to grant a protection visa and the applicant subsequently applied for a review of that decision by the Refugee Review Tribunal (“RRT”). The RRT affirmed the decision of the Minister’s Delegate refusing to grant the applicant a Protection Visa. The relief sought by the applicant includes an order setting aside the RRT’s decision and remitting the application to the Tribunal to be determined “according to law”.

2. The grounds stated in the application are:-

   a)The decision involved an error in law;

   b)There was no jurisdiction to make the decision;

   c)The Migration Act did not permit the making of the decision

3. On the 23 April the applicant was ordered to file and serve:

   a)An amended application giving particulars of the grounds for relief under the Judiciary Act 1993 or a statement setting out why he considers the decision of the Tribunal should be overturned.

   b)Any affidavits upon which he intends to rely at the hearing of this matter.

4. At the Hearing the applicant was unrepresented.  In accordance with the…