NADR v Minister for Immigration and Multicultural Affairs

[2002] FCA 361

FEDERAL COURT OF AUSTRALIA

NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 361

NADR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1683 OF 2001

EMMETT J
SYDNEY
20 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1683 OF 2001

BETWEEN:	NADR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	20 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed; and

2.        the applicant 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 1683 OF 2001

BETWEEN:	NADR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	20 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  He arrived in Australia on 12 February 1999 and on 24 February 1999 he lodged an application under the Migration Act 1958 (Cth) (“the Act”) for a protection (class AZ) visa with the Department of Immigration & Multicultural Affairs. On 15 March 1999, a delegate of the respondent, the Minister for Immigration & Multicultural Affairs (“the Minister”), refused to grant a protection visa. On 14 April 1999, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the decision of the delegate.

2. On 6 November 2001, the Tribunal affirmed the decision not to grant a protection visa. By application filed on 28 December 2001, the applicant sought an order of review of the decision of the Tribunal by the Federal Court. The decision of the Tribunal is a privative clause decision within the meaning of s 474 of the Act. That is to say, it is a decision of administrative character made under the Act. Accordingly, pursuant to s 474(1), the decision:

   “(a)     is final and conclusive; and

   (b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

   (c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

3. By his amended application, the applicant claims relief under s 39B of the Judiciary Act 1903 (Cth) and contends that s 474 does not preclude the grant of relief. A provision such as s 474 is not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a provision is interpreted as meaning that no decision which is in fact given by the body concerned is to be invalidated on the ground that it had not conformed to the requirements governing its proceedings, or the exercise of its authority, or has not confined its acts within the limits laid down by the instrument, or provision giving it authority subject to certain pre-requisites. Those pre-requisites are that the decision is a bona fide attempt to exercise power, that it relates to the subject matter of the…