Applicant S251 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1776

FEDERAL COURT OF AUSTRALIA

Applicant S251 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1776

APPLICANT S251 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND MEMBER OF THE REFUGEE REVIEW TRIBUNAL

NSD 1055 OF 2003

MADGWICK J
7 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1055 OF 2003

BETWEEN:

APPLICANT S251 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

7 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A rule 5(1) not apply to the proceeding.

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 1055 OF 2003

BETWEEN:

APPLICANT S251 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	MADGWICK J
DATE:	7 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  On 14 August 1997, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 11 September 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 2 October 1997, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 29 April 1999, the Tribunal affirmed the delegate’s decision.

2. The applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi on 29 May 2003, together with an affidavit sworn on 28 May 2003.  The matter was remitted to this Court pursuant to an order of the High Court following the decision of Lie v Refugee Review Tribunal [2002] HCA 30.

3. On 12 November 2004, the District Registrar of this Court wrote to the applicant inviting him to make written submissions on the question of whether there is an arguable case for the grant of the relief claimed by the draft order nisi  in the material before the Court.  The applicant has submitted what he calls his ‘argument’.  In the circumstances, it is appropriate that the application for an order nisi be dealt with without any oral hearing or argument and for Order 51A rule 5(1) of the Federal Court Rules be dispensed with.  (See Applicant s195 of 2003 v Refugee Review Tribunal [2005] FCA 1571).

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

   ‘a)the third respondent did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed.

   b)the third respondent’s decision was affected by an “error of law” and “Jurisdictional error” and lack of procedural fairness.

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

   d)the applicant was denied natural justice in being denied a reasonable opportunity to be heard on his application before the first respondent.

   e)there has been a constructive failure of jurisdiction by the first respondent’s decision of 11 September 1997, failed to address the correct legal question committed to him by not applying himself to all of those issues he was required to consider in determining the matter before him.

   f)there was a failure of the first respondent’s agent to exercise his jurisdiction in the decision of 11 September 1997 because he did not reach a state of satisfaction bases upon a correct understanding of the law on which he acts.

   g)the decision of the first respondent’s agent of 11 September 1997 was made in breach of rules of natural justice.’ (Solecisms preserved.)

5. The applicant’s affidavit annexes the delegate’s decision, the Tribunal’s invitation to the applicant of 7 April 1999 to attend to give evidence and to send in any additional evidence or argument.  Otherwise the affidavit simply asserts a power in the High Court to hear the case despite the delay in approaching the Court.

6. In its reasons the Tribunal concluded that the applicant does not, on his own claims and evidence, have a well-founded fear of persecution for a Convention reason.

7. 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 affidavit before the Court does not disclose an arguable case, in that sense.

8. The applicant’s written argument contains unsubstantiated assertions of fact and, so far as it is comprehensible, makes submissions of a kind indicating that someone with some but inadequate knowledge of relevant legal principles and a word processor had had a hand in their preparation.  The document does not demonstrate that the applicant has an arguable case.

9. The application for an order nisi is refused.

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

Associate:

Dated:             7 December 2005