Dranichnikov v Minister for Immigration and Multicultural Affairs
[2003] HCA 26(Judgment by: Hayne J)
Dranichnikov
vMinister for Immigration and Multicultural Affairs
Judges:
Gleeson CJ
Gummow J
Kirby J
Hayne JCallinan J
Legislative References:
Migration Act 1958 (Cth) - s 476
Judiciary Act 1903 (Cth) - The Act
Administrative Decisions (Judicial Review) Act 1977 - The Act
Migration Legislation Amendment (Judicial Review) Act 2001 - The Act
Judgment date: 8 May 2003
Canberra
Judgment by:
Hayne J
[95] I agree that, for the reasons given by Gummow and Callinan JJ, the Refugee Review Tribunal failed to exercise its jurisdiction, and did not give the applicant natural justice in conducting its review, because it did not consider the claim which the applicant was then making, and had earlier made, for protection. I also agree that certiorari, mandamus and prohibition should issue and that the first respondent should pay the applicant's costs of that application.
[96] It must be taken to follow from Abebe v Commonwealth [65] that there is no necessary disconformity between making those orders and not disturbing the orders of the Federal Court dismissing both his application for review by that court of the tribunal's decision and his appeal against that dismissal. Yet not to disturb those orders will leave, undisturbed, orders requiring the applicant to pay the respondent's costs of the proceedings in that court, both at first instance and on appeal.
[97] In the circumstances of this matter, in which it is not clear whether the complaint made by the applicant was properly a ground for review under the then applicable, but now repealed, provisions of the Migration Act 1958 (Cth), but it is clear that it does ground the relief earlier mentioned, the application for special leave to appeal from the orders of the Full Court of the Federal Court should be dismissed. Neither the interests of justice in the particular case, nor more generally, warrant a grant of special leave. There should be no order as to the costs of that application for special leave.