Applicant S191 of 2005 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1824

FEDERAL COURT OF AUSTRALIA

Applicant S191 of 2005 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1824

APPLICANT S191 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2283 of 2005

WILCOX J
8 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2283 of 2005

BETWEEN:

APPLICANT S191 OF 2003
APPLICANT

AND:

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

8 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal against a decision of Emmett J be dismissed with costs fixed at $700.00.

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	NSD 2283 of 2005

BETWEEN:

APPLICANT S191 OF 2003
APPLICANT

AND:

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	WILCOX J
DATE:	8 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for leave to appeal against a decision made by Emmett J on 9 November 2005 refusing an application for orders nisi for prerogative relief. 

2. The applicant is a citizen of Indonesia.  She came to Australia in December 1990 and has apparently remained here since that time.  She told me today about the work she has been doing and how she has integrated into the Australian community.  She claimed she would suffer considerable hardship if now forced to return to Indonesia.  I understand these statements.  However, I would be justified in granting leave to appeal against the decision of Emmett J only if I was satisfied that he was arguably incorrect in holding that no arguable ground of jurisdictional error appeared in the case.

3. It appears that, in about 1992, the applicant made an application for the predecessor of what is now called a protection visa.  That application was refused by a delegate of the Minister.  A review of the decision was sought and the application for review came before the Refugee Review Tribunal (‘the Tribunal’) in 1995.

4. On 21 March 1995, the Tribunal handed down a decision in which it affirmed the delegate’s decision to refuse to grant the applicant a visa.  The applicant made no attempt to challenge the Tribunal's decision until 1998, when she was joined in a class action in the High Court of Australia involving thousands of people.

5. The High Court subsequently ordered the class members to make individual applications for order nisi.  Pursuant to that direction, in May 2003 the applicant filed in the High Court an application for an order nisi.  The draft order nisi set out six grounds.  The grounds were simply a list of grounds of review generally available in administrative law.  No particulars were supplied.

6. The application was remitted to this Court.  The New South Wales District Registrar then wrote to the applicant inviting her to make written submissions on the question whether there is an arguable case for the grant of the relief claimed by the draft order nisi.  The applicant did not respond to that letter. 

7. The matter came before Emmett J.  In dismissing the application for an order nisi,  he said:

   ‘On an application such as this, for orders requiring the respondents to show cause why final relief should not be granted, the purpose of any affidavit in support is to provide material showing that there is at least an arguable case for the grant of the final relief claimed.  However, the material must be more than mere pleading or assertion of the right to such relief.  The material must contain some evidence of facts that would support the grant of the relief claimed.  In the context of the relief claimed by the present applicant, there should be material that would show that it is at least arguable that the Tribunal fell into jurisdictional error in making the Decision, such that orders would be made to quash the Decision and to restrain the Minister from acting on the Decision.  The material presently before the Court does not disclose an arguable case, in that sense.’

   I agree. 

8. I asked the applicant today whether she could tell me what was intended to be raised by the grounds set out in the draft order nisi.  She said she was unable to do this; the grounds had been supplied to her by a friend.  I asked the applicant whether she could tell me any ground upon which she suggested the Tribunal had made a mistake about the law or failed to follow proper procedures.  She said she could not do this, but she was dissatisfied with the decision.

9. I have read the Tribunal's decision for myself.  I am unable to detect any jurisdictional error.  In my opinion, Emmett J dealt with the matter in a proper way and there is no basis for granting leave to appeal against his Honour's decision.  The application for leave to appeal against the decision of Emmett J will be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            14 December 2005

The Applicant appeared in person.
Solicitor for the First Respondent:	Mr A Markus of Australian Government Solicitor
The Second Respondent filed a submitting appearance.
Date of Hearing:	8 December 2005
Date of Judgment:	8 December 2005