NAPL v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 94

FEDERAL COURT OF AUSTRALIA

NAPL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 94

Migration Act 1958 (Cth), s 474

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 followed

NAPL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1140 OF 2002

RYAN, FINKELSTEIN and DOWNES JJ
20 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1140 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAPL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	RYAN, FINKELSTEIN AND DOWNES JJ
DATE OF ORDER:	20 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS:

1.   Appeal allowed.

2.   The Orders of Wilcox J set aside.

3.   A writ of certiorari issue to quash the decision of the Refugee Review Tribunal dated 31 May 2002.

4.   The matter be remitted to the Refugee Review to be determined according to law.

5.   No order as to the costs of the appeal or of the proceedings before Wilcox J.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1140 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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

JUDGES:	RYAN, FINKELSTEIN AND DOWNES JJ
DATE:	20 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant is an Indian national of Tamil extraction who claims to be entitled to the grant of an Australian Protection Visa.  His application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs and by the Refugee Review Tribunal.  Wilcox J,  in this court, dismissed an application for review of the decision of the Refugee Review Tribunal.

2. Wilcox J accepted a submission put on behalf of the applicant that the Refugee Review Tribunal had failed to deal with the applicant's claim that he was at risk of persecution by the Liberation Tigers of Tamil Elam ("LTTE"). He concluded that this failure amounted to jurisdictional error. He further concluded that, were it not for the provisions of s 474 of the Migration Act 1958, he would have upheld the applicant's claim.

3. Wilcox J gave his decision on 9 October 2002.  The decision was accordingly given before the decision of the High Court of Australia Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (“S157”).

4. In this appeal the respondent Minister does not challenge the finding by Wilcox J that there had been an error of law on the part of the Refugee Review Tribunal nor his further finding that that error amounted to jurisdictional error.

5. As a result of the decision of the High Court in S157 jurisdictional errors are capable of justifying judicial review notwithstanding the provisions of s 474 of the Migration Act 1958.  The parties accept that this is a case in which the jurisdictional error found to exist by Wilcox J does attract judicial review.  We make that finding.

6. In the result the matter must be remitted to the Refugee Review Tribunal for further consideration because of its failure to deal with the applicant's claim that he was at risk of persecution by the LTTE.  The appeal will be allowed, the decision of Wilcox J of 9 October 2002 set aside as well as the decision of the Refugee Review Tribunal of 31 May 2002 and the matter will be remitted to the Refugee Review Tribunal for reconsideration in accordance with law.  The parties are agreed that there should be no order as to costs.

   I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Finkelstein and Downes.

   Associate:

   Dated:                 20 May 2003