NACT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1619 (20 December 2002)

Last Updated: 13 January 2003

FEDERAL COURT OF AUSTRALIA

NACT v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1619

NACT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1107 OF 2002

EMMETT J

20 DECEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1107 OF 2002

BETWEEN:	NACT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	20 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed

2. the applicant pay the respondent's costs

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	N1107 OF 2002

BETWEEN:	NACT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	20 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant in this matter is a citizen of Algeria. He arrived in Australia on 10 June 1988. On 24 February 1992 he lodged an application for a protection visa under the Migration Act 1958 (Cth) (`the Act'). On 28 April 1993 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (`the Minister') refused to grant the protection visa.

2 The applicant sought review of the delegate's decision. That matter came before the Refugee Review Tribunal, which, on 23 September 1999, affirmed the decision not to grant a protection visa. The applicant has been involved in other disputes with the Minister including one that led to a decision of the Migration Review Tribunal on 25 September 2002, in which that tribunal affirmed a decision that the applicant was not entitled to the grant of a Bridging Visa E Class WE.

3 On 21 October 2002 the applicant filed an application in this Court that was expressed to be an application under section 39B of the Judiciary Act 1903 (Cth) (`the Judiciary Act'). No final relief was clearly claimed. Pursuant to leave subsequently given without opposition from the Minister, the applicant filed an amended application also claiming relief under section 39B of the Judiciary Act but also basing the claim on section 75(5) of the Constitution. In the amended application the applicant seeks prerogative relief in relation to the decision of the Refugee Review Tribunal of 23 September 1999.

4 The basis of the claim for relief is said to be the principles propounded by the High Court of Australia in Nguyen v Refugee Review Tribunal [2002] HCA 30. The basis of the claim for relief is not entirely clear although as I apprehend it is based on a contention that there was a failure to accord procedural fairness to the applicant to the extent that there was a failure by the Tribunal to make clear to the applicant what documents had been taken into account or considered by the Tribunal in reaching its conclusion.

5 Be that as it may, the Minister has made an application by motion on notice seeking summary dismissal of the proceeding by reason of the operation of s 477 of the Act. Section 477(1) provides that an application to the Federal Court under section 39B of the Judiciary Act for a writ of mandamus, prohibition or certiorari or for an injunction or a declaration in respect of a privative clause decision, in relation to which the jurisdiction of the Federal Court is not excluded by s 476, must be made to the Federal Court within twenty-eight days of the notification of the decision.

6 There is no suggestion that the jurisdiction of the Federal Court would be excluded in this case by s 476. Further, it is clear that the decision of the Tribunal of 23 September 1999 is a `privative clause decision' as that term is defined in s 474(2) of the Act. That is to say it is a decision of an administrative character made under the Act. No argument has been advanced to suggest that s 477 is not valid and does not bind the Federal Court.

7 Section 477(2) of the Act provides that the Federal Court must not make an order allowing or which has the effect of allowing an applicant to lodge an application referred to in s 477(1) outside the period specified in that subsection. It is common ground that the applicant was notified of the decision of 23 September 1999 more than twenty-eight days before the commencement of this proceeding. In the circumstances this Court cannot entertain the application for relief insofar as it is based on a failure to accord procedural fairness in making the decision of 23 September 1999.

8 It follows that the application should be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 13 January 2002

Solicitor for the Applicant:	J. Saroff
Solicitor for the Respondent:	S. Hanstein of Blake Dawson Waldron
Date of Hearing:	20 December 2002
Date of Judgment:	20 December 2002