Rishmawi, Hannah v The Honourable Philip Maxwell Ruddock, MP, Minister for Immigration & Multicultural Affairs

[1997] FCA 830

FEDERAL COURT OF AUSTRALIA

MIGRATION - Appeal from decision of Refugee Review Tribunal - appeal dismissed as incompetent

Dai Xing Yao v. The Minister for Immigration and Ethnic Affairs (VG388 of 1994; unreported 18 September 1996) Foll

HANNAH RISHMAWI v THE HONOURABLE PHILIP MAXWELL RUDDOCK, MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No QG 82 of 1996
Cooper J
Brisbane
15 August 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
QUEENSLAND DISTRICT REGISTRY	)  QG82 of 1996
)
GENERAL DIVISION	)

BETWEEN:	HANNAH RISHMAWI Applicant
AND:	THE HONOURABLE PHILIP  MAXWELL RUDDOCK, MP,  MINISTER FOR IMMIGRATION  AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	COOPER J
PLACE:	BRISBANE
DATED:	15 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed as incompetent.

1. The applicant pay the respondent’s costs of the appeal and notice of motion to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
QUEENSLAND DISTRICT REGISTRY	)   QG82 of 1996
)
GENERAL DIVISION	)

BETWEEN:	HANNAH RISHMAWI Applicant
AND:	THE HONOURABLE PHILIP  MAXWELL RUDDOCK, MP,  MINISTER FOR IMMIGRATION  AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	COOPER J
PLACE:	BRISBANE
DATED:	15 AUGUST 1997

REASONS FOR JUDGMENT

This matter is related to the Application for an Order of Review of the decision of the Refugee Review Tribunal in QG83/96. In these proceedings the applicant seeks to appeal from the decision of the Tribunal that the applicant was not a person to whom Australia had obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

The respondent by notice of motion seeks to have the appeal dismissed as incompetent and seeks an order for costs. The notice of motion was heard on the return of the appeal and on the hearing of the application in QG83 of 1996.

The respondent submits that the decision is judicially reviewable pursuant to s475 of the Migration Act 1958 (Cth) and is therefore not appealable to this Court. The submission of the respondent is in accordance with the decision of a Full Court of this Court (Black CJ, Davies and Sunberg JJ) in Dai Xing Yao v. The Minister for Immigration and Ethnic Affairs (VG388 of 1994; unreported 18 September 1996).

The applicant did not seek to press a right of appeal and submits that the appeal had been lodged along with the application for an order to review out of an abundance of caution in order to protect the applicant’s right to challenge the decision of the Tribunal.

The appeal will be dismissed as incompetent.

The respondent seeks the costs of the appeal and notice of motion. There is no reason why the costs of the appeal, which should be minimal having regard to the need to prepare and argue the substantive issues in QG83 of 1996, and of the notice of motion should not follow the event.

The Court orders that :-

1. The appeal be dismissed as incompetent.

1. The applicant pay the respondent’s costs of the appeal and notice of motion to be taxed if not agreed.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper

Associate:

Dated:            15 August 1997

Counsel for the Applicant:	J A Logan
Solicitor for the Applicant:	Walsh Halligan Douglas
Counsel for the Respondent:	C E Holmes
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 November 1996