S132, in the matter of an application for a Writ of Prohibition and a Writ of Certiorari against Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1708

FEDERAL COURT OF AUSTRALIA

S132, in the matter of an application for a Writ of Prohibition and a Writ of Certiorari against Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1708

S132 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND L. HARDY MEMBER OF THE REFUGEE REVIEW TRIBUNAL

N1467 of 2004

MADGWICK J
2 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1467 of 2004

IN THE MATTER OF:

BETWEEN:

AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND INJUNCTIONS

S132
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

L. HARDY MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

2 NOVEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with costs, assessed in the sum of $3,000.

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	N1467 of 2004

IN THE MATTER OF:

BETWEEN:

AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND INJUNCTIONS

S132
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

L. HARDY MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	MADGWICK J
DATE:	2 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This matter comes before the Court by way of an order of remitter made by Heydon J in the High Court of Australia on 23 August 2004.  In the High Court, the applicant had been seeking the issue of an order nisi.  The draft order nisi contemplated that a writ of certiorari should issue to remove into the High Court, there to be quashed, a decision adverse to the applicant made on 13 November 2001 by the Refugee Review Tribunal (‘the Tribunal’).  The order nisi also contemplated the issue of a writ of mandamus directing the Tribunal to rehear and determine the applicant’s case according to law.

2. The grounds alleged various jurisdictional errors by the Tribunal and are couched in terms of great generality.  The matter has a long history which one ought to be able to call remarkable, but it is perhaps not so remarkable as it should be. 

3. The applicant came to Australia on 12 January 1999.  Two days later he lodged an application for a protection visa and on 15 March 1999 a delegate of the respondent Minister refused to grant such a visa.  The applicant promptly sought review of that decision by the Tribunal.  Matters were considerably delayed in the Tribunal, a rehearing being necessitated by the resignation of the Tribunal member who first set out to hear the applicant’s case.  Ultimately, the Tribunal affirmed the respondent delegate’s decision on 13 November 2001. 

4. The applicant then applied to this Court for judicial review of the Tribunal’s decision. The…