S135 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1521

FEDERAL COURT OF AUSTRALIA

S135 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1521

S135 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

N2585 OF 2003

EMMETT J

16 JULY 2004

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2585 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S135 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

MICHAEL GRIFFIN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

16 JULY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A Rule 5(1) of the Federal Court Rules not apply.

2.        The application for an order nisi be refused.

3.        The applicant pay the Minister’s costs of the proceeding.

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	N2585 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S135 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

MICHAEL GRIFFIN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

16 JULY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of Bangladesh.  He arrived in Australia on 13 April 2000 and, on 16 May 2000, he lodged an application for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (‘the Act’). On 22 May 2000 a delegate of the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 2 June 2000, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 23 October 2002, the Tribunal, constituted by the third respondent, affirmed the decision not to grant a protection visa. Reasons for that decision were published on 14 November 2002.

2. On 12 December 2002, the applicant commenced a proceeding in the Court for review of the decision of the Tribunal.  On 13 March 2003, Branson J, for reasons that her Honour gave on that day, ordered that the application be dismissed with costs (see NAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 241).

3. On 11 April 2003, the applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi and an affidavit in support.  By the draft order nisi, the applicant claimed orders that the Minister show cause why:

   • an injunction should not be raised prohibiting the Minister from removing the applicant from Australia;
   • a writ of mandamus should not be issued to the second respondent, the Principal Member of the Tribunal, directing the Principal Member to exercise the duty under s 414 of the Act to review…