Applicant S527 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1293

FEDERAL COURT OF AUSTRALIA

Applicant S527 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1293

APPLICANT S527 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS

N 710 of 2004

WHITLAM J
2 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 710 of 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S527 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER
OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

J C BLOUNT
MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

2 SEPTEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for an order nisi is refused with costs.

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	N 710 of 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S527 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

J C BLOUNT
MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	WHITLAM J
DATE:	2 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The proceeding was commenced in the High Court on 2 October 2003 as an application for an order nisi for constitutional writs.  The first respondent (‘the Minister’) administers the Migration Act 1958 (‘the Act’), and the second and third respondents are members of the Refugee Review Tribunal (‘the Tribunal’) established under Pt 7 of the Act. The second and third respondents have notified the High Court that they submit to any order save as to costs. On 16 February 2004 Heydon J ordered that the application, including any application for the enlargement of time, be remitted to this Court.

2. The matter was listed for a directions hearing today.  However, the Minister has given notice to the applicant of her intention to move today to have the application for an order nisi refused on the basis that it does not disclose any arguable case.  I directed that that Minister’s motion for summary disposal be heard forthwith.

3. The background to the matter is straightforward.  The applicant is an Indian national.  He arrived in Australia on 18 November 1999 and applied for a protection visa on 16 December 1999.  That application was refused by a delegate of the Minister on 4 February 2000.  That decision was affirmed by the Tribunal on 11 December 2001.  The applicant applied to this Court for a review of the Tribunal’s decision on 1 February 2002.  However, two days before the date appointed for the first directions hearing, on 18 March 2002, the applicant filed a notice discontinuing that proceeding.

4. The grounds stated in the draft order nisi are:

   ‘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 4 February 2000, 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 4 February 2000 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 4 February 2000 was made in breach of rules of natural justice.’

5. The affidavit in support of the application is complete gibberish.  It does not contain a hint of any jurisdictional error on the part of the Tribunal.  The grounds are apparently as hopeless in substance as they are opaque in expression.  The applicant declined to make any oral submissions.  An arguable case is required to obtain an order nisi for constitutional writs: Re Australian Nursing Federation; Ex parte Victoria (1993) 67 ALJR 377 at 382. The applicant has failed to make out such a case, and the application will accordingly be refused with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             6 October 2004

The applicant appeared in person.

Ms A J Houlton from Sparke Helmore, solicitors, appeared for the first respondent.

Date of hearing:	2 September 2004
Date of judgment:	2 September 2004