NARV v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1289

FEDERAL COURT OF AUSTRALIA

NARV v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1289

NARV, NARW and NARX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N848 of 2002

WILCOX J
15 OCTOBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N848 of 2002

BETWEEN:	NARV, NARW and NARX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	15 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the costs of the respondent.

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	N848 of 2002

BETWEEN:	NARV, NARW and NARX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	15 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application to review a decision by the Refugee Review Tribunal (“the Tribunal”) affirming decisions to refuse the grant of protection visas to the three applicants, they being husband, wife and an infant child born to them since their arrival in Australia.

2. The Tribunal’s decision, in respect of each application, was made after 2 October 2001.  This has the consequence that the legislative amendments that took effect on that day apply to the applicants’ application for review. 

3. The male applicant has appeared on behalf of himself, his wife and his child.  He provided to me a written submission setting out the case he wished to advance to the Court.  After shortly summarising the factual position, the written submission raises an issue as to whether the Tribunal breached the rules of procedural fairness in connection with its conduct of the hearing.  The written submission argues that the Tribunal gathered independent material, without notice to the applicants, and took it into account, to their disadvantage, in deciding not to accept the case they put before the Tribunal.

4. I think there is room for debate as to whether the Tribunal did take the course suggested, or otherwise infringe the usual tenets of procedural fairness.  But it seems pointless to reach a conclusion about that matter.  It is now established, by a decision of a Full Court of this Court, that procedural fairness is not a ground of review currently available:  see NAAV v Minister for Immigration and Indigenous Affairs (2002) FCAFC 228. The view adopted by the majority of the five member Court that determined that case was that the rules concerning procedural fairness, which had previously been upheld in the High Court of Australia, for example in cases such as in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 no longer applied.

5. I am bound by the majority decision of the Full Court.  The consequence is that I have to rule that any lack of procedural fairness does not advance the applicants’ case.  In that situation, I see no point in going into the detail of the allegations in order to form a view as to whether there is any merit of the complaint of lack of procedural fairness.  I am compelled by the terms of s 474, as applied by the majority of the Full Court, to reject the only ground of challenge advanced by the applicants.

6. It follows that the application must be dismissed.  The order of the Court will be that the application is dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            15 October 2002

Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 October 2002