Applicant S1835 of 2003 v Refugee Review Tribunal

[2005] FCA 1699

FEDERAL COURT OF AUSTRALIA

Applicant S1835 of 2003 v Refugee Review Tribunal [2005] FCA 1699

APPLICANT S1835 OF 2003 v REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 2032 of 2005

MADGWICK J
8 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2032 OF 2005

BETWEEN:

APPLICANT S1835 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

8 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal is refused with costs assessed in the sum of $700.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2032 OF 2005

BETWEEN:

APPLICANT S1835 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	8 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. This is an application for leave to appeal from an interlocutory judgment of her Honour Branson J given on 20 October 2005.  The application mistakenly suggests that leave to appeal is required because the applicant was out of time to appeal against her Honour’s judgment.  That is not correct.  Application for leave to appeal in fact was filed within the time limit for seeking leave to appeal from her Honour’s judgment but leave is still required because it was an interlocutory judgment.

2. The matter before her Honour, as her Honour recounted, was an application originally filed in the High Court on 1 July 2003 for an order nisi seeking in effect constitutional writs in respect of a 1994 decision of the Refugee Review Tribunal.  However, the applicant, under the then state of the law, was able to make a second application for refugee status.  That application was refused by a delegate of the Minister and in turn was the subject of a second completely independent review by the Tribunal resulting in a decision delivered on 17 October 1996.  Her Honour said:

   ‘It is, in my view, a complete answer to the applicant’s application for the issue of an order nisi that he made a subsequent application for a protection visa that was considered and refused by a delegate of the Minister and that the Tribunal subsequently entertained his application for review of the decision of the delegate.  Nonetheless, I propose to give brief consideration to the two decisions of the Tribunal.’

3. Her Honour proceeded to find no basis in a claim of a denial of procedural fairness in relation to the first Tribunal decision.  Her Honour then, without formally regarding the proceedings as amended to raise an attack on the 1996 Tribunal decision, nevertheless considered it and expressed the opinion, in effect, that the material before the court was insufficient to suggest any jurisdictional error.

4. It seems that the applicant had complained to her Honour that at least as her Honour understood it, the Tribunal had given the applicant ‘only one day to submit additional material’ and that he was ‘unable properly to answer questions that were put to him at the hearing as he was suffering depression as a result of his wife’s recent death’. 

5. The Tribunal member certainly accepted that the applicant was emotionally distressed on account of the then recent death of his wife, but despite what seems to have been an evident degree of sympathy for the applicant, nevertheless refused him an adjournment on the basis that he could adequately present his oral case.  It further appears that the Tribunal gave the applicant some further time to put in written material, which he did.  The applicant’s memory today (in fairness to him I should say unaided by reference to any document) is that the Tribunal allowed him ‘only a few days’.

6. I say no more about the 1996 decision.  It seems to me that the status of her Honour’s remarks was merely that her Honour was trying to assure the applicant that, at least in her Honour’s view, the applicant had no basis in what had occurred before the Tribunal for seeking to overturn the second decision and force a re-hearing of his claims. 

7. In any case, the first basis identified by her Honour for refusing relief in relation to the first Tribunal hearing, which was the only matter before her Honour, was quite unarguably correct in my view, and there is no arguable case now presented that her Honour’s decision was erroneous. In these circumstances leave should not be granted because her Honour’s decision is not attended by sufficient doubt. Leave to appeal will be refused with costs.

8. I add that I have advised the applicant that he might possibly profit from getting some expert advice about his position.

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

Associate:

Dated:            24 November 2005

Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 November 2005
Date of Judgment:	8 November 2005