S528 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1390

FEDERAL COURT OF AUSTRALIA

S528 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1390

APPLICANT S528 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

NSD552 OF 2004

EMMETT J
28 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD552 OF 2004

BETWEEN:

APPLICANT S528 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

28 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A rule 5(1) not apply to the proceeding.

2.        The application for orders nisi be refused.

3.        The applicant pay the costs of the first respondent in the sum of $1,200.

4.The first respondent forward to the applicant at his last known address written notice of these orders and of the terms of Order 35 Rule 7.

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	NSD552 OF 2004

BETWEEN:

APPLICANT S528 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	28 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 20 June 1999.  On 23 June 1999, he lodged an application for a Protection (Class AZ) Visa under the Migration Act 1958 (‘the Act’).  On 25 June 1999, a delegate of the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant a protection visa and, on 20 July 1999, the applicant applied to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for review of the delegate’s decision.  On 21 May 2002, the Tribunal affirmed the decision not to grant a protection visa.  The applicant was notified of the decision on or shortly after 12 June 2002. 

2. On 2 October 2003, the applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi and an affidavit. By the draft order nisi, the applicant claimed Constitutional writ relief in respect of the decision of the Tribunal and of the Minister’s delegate.  On 13 February 2004, Gleeson CJ ordered that the further proceedings in the application, including any application for enlargement of time, be remitted to the Federal Court of Australia.

3. On 12 November 2004, the District Registrar of the Federal Court wrote to the applicant inviting him to make written submissions on the question of whether there is an arguable case for the grant of the relief claimed by the draft order nisi in the material before the Court.

4. There has been no response to that letter from the District Registrar.  Further, there is evidence before the Court that the applicant in fact left Australia on 15 August 2005.  By letter of 18 August 2005, the Minister’s solicitors requested the Court to refuse an order nisi and make an order that the applicant pay the Minister’s costs.  In the circumstances, it is appropriate to accede to that request.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            28 September 2005

No appearance for the Applicant
Solicitor for the Respondent:	Clayton Utz
Date of Judgment:	28 September 2005