NAPL v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1263

FEDERAL COURT OF AUSTRALIA

NAPL v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1263

NAPL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N742 of 2002

WILCOX J
SYDNEY
9 OCTOBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N742 of 2002

BETWEEN:	NAPL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	9 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:-

1.        The application be dismissed.

2.        The applicant 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	N742 of 2002

BETWEEN:	NAPL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	9 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for review of a decision of the Refugee Review Tribunal. 

2. The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention on Refugees 1951, as amended by the Protocol on Refugees 1976.  Accordingly, the Tribunal affirmed a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant to the applicant a protection visa. 

3. The applicant has appeared for himself at the hearing of this application for review.  However, he has had the assistance of an interpreter and also the benefit of receiving legal advice from counsel assigned to him under the Panel Scheme administered by the Court.  The relevant counsel, Mr Ben Zipser, has gone further than he was required to go under the Panel Scheme.  He has provided a written submission setting out arguments on behalf of the applicant.  I express the appreciation of the Court for this additional assistance to the applicant. 

4. Mr Zipser has identified what he claims to be three errors made by the Tribunal in its decision about the applicant.  He accepts that s 474 of the Migration Act, as inserted in the amendments which took effect on 2 October 2001, apply to this case.  Mr Zipser also accepts that, on the interpretation of s 474 that was adopted by the majority of the Full Court of the Federal Court in NAAV v Minister of Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228, this application must fail. However, he says:

   “If this Court accepts that the RRT’s decision is infected by jurisdictional error this Court should not hand down a decision until after the High Court hands down a decision in Applicants S134/2002; Re Minister for Immigration and Multicultural and Indigenous Affairs S134/2002.”

5. The reference is to a proceeding that was recently heard by the Full High Court of Australia.  I am informed there was argument as to both the constitutional validity of s 474 of the Migration Act and its proper interpretation and application. 

6. Mr T. Reilly, counsel for the Minister, submits that,…