Applicant S195 v Refugee Review Tribunal

FEDERAL COURT OF AUSTRALIA

S195 of 2003 v Refugee Review Tribunal [2005] FCA 1571

APPLICANT S195 OF 2003 v REFUGEE REVIEW TRIBUNAL

NSD 971 OF 2003

EMMETT J
9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 971 OF 2003

BETWEEN:

APPLICANT S195 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

9 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A rule 5(1) not apply.

2.        The application for orders nisi be refused.

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 971 OF 2003

BETWEEN:

APPLICANT S195 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	9 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  On 28 April 1995, the applicant applied to the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). The application was refused on 23 October 1995 and on 24 November 1995, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the decision. By its decision of 25 March 1997 (‘the Decision’), the Tribunal affirmed the Minister’s decision not to grant a protection visa to the applicant.

2. On 29 May 2003, the applicant commenced a proceeding in the High Court of Australia by filing a draft Order nisi and an affidavit affirmed on 19 May 2003.  By doing so, the applicant applied for an order by the High Court that would call upon the respondents to show cause why writs of mandamus, prohibition and certiorari should not issue to them in respect of the Decision. 

3. In his affidavit, the applicant recounted that he was a person named in the schedule to the statement of claim in proceeding brought in the High Court of Australia no. S89 of 1999, Lie v Refugee Review Tribunal [2002] HCA 30 (‘the Class Action’).

4. The grounds upon which relief was claimed in the draft order nisi were as follows:

   “a)      the respective member of the first respondent did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulation to be observed in connection with the making of the decision were not observed.

   b)the first respondent’s decision was affected by an ‘error of law’ and ‘jurisdictional error’ and lack of procedural fairness

   c)there was no evident or other material to justify in making of the decision.

   d)the appellant was denied natural justice in being denied a reasonable opportunity to be heard, in an unbiased environment, on his application before the second respondent.

   e)There has been a constructive failure…