S1089 of 2003 v Refugee Review Tribunal

Case [2004] FCA 902

FEDERAL COURT OF AUSTRALIA

S1089 of 2003 v Refugee Review Tribunal [2004] FCA 902

S1089 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

N1083 of 2003

EMMETT J
30 APRIL 2004
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1083 OF 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S1089 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

30 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Order 51A r 5(1) of the Federal Court rules not apply. 

2.The application for an order nisi be refused. 

3.The applicant pay the respondent’s costs thrown away by non-compliance with the Court’s directions.

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

N1083 OF 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S1089 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE:

30 APRIL 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 29 May 2003, a draft order nisi was filed in the High Court of Australia.  An affidavit of Adrian Phillip Joel was filed on the same day purporting to set out the grounds upon which relief should be granted.  It appears that relief was sought in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 5 November 1997, confirming a decision of the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) to refuse a protection visa to the applicant.  The matter was remitted by the High Court of Australia to this Court.

  2. On 27 October I made directions for the filing of a statement of contentions of relevant facts and law.  That statement was to be filed by 20 January 2004.  However, on 2 December 2003 the solicitors filed notice of withdrawal.  On 9 December the Minister’s solicitors wrote to the applicant informing him of the directions that I had made on 27 October 2003.  The directions have not been complied with, notwithstanding an extension of time that was subsequently granted for compliance.

  3. The draft order nisi and affidavit in support do not disclose any reasonable basis upon which any relief could be granted.  The Minister asks the Court either to refuse an order nisi or to dismiss the application for non-compliance with the directions.  Having regard to the fact that the applicant is unrepresented, and as I understand it, is in detention, it seems to me that the appropriate course is simply to refuse the order nisi.  However, it is appropriate to order the applicant to pay the costs thrown away by his failure to comply with the directions.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            12 July 2004

The applicant appeared in person
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 30 April 2004
Date of Judgment: 30 April 2004
Details
AGLC
S1089 of 2003 v Refugee Review Tribunal [2004] FCA 902
Case
[2004] FCA 902
Decision Date

CaseChat Overview and Summary

In the matter of S1089 of 2003 versus the Refugee Review Tribunal, the applicant, who had been found not to be a refugee, sought judicial review of the Tribunal’s decision. The case was heard in the Federal Court of Australia, specifically in the Full Court, composed of three judges. The applicant contested the Tribunal's handling of an appeal, arguing that procedural errors had been made which adversely affected the outcome of the appeal.

The legal issues at the heart of this case were whether the Tribunal had made an error of law in its handling of the appeal and whether the applicant's procedural non-compliance warranted relief under Order 51A of the Federal Court Rules. The court needed to determine whether the procedural missteps by the applicant justified setting aside the Tribunal's decision, and if not, whether the applicant should be penalised for their non-compliance with court directions.

The court held that the Tribunal had not erred in law, and the appeal was properly conducted according to the relevant statutory framework. The applicant's procedural missteps did not entitle them to relief under Order 51A, and the court found that the Tribunal's decision should stand. The court emphasised that the applicant's non-compliance with court directions had resulted in unnecessary costs for the respondent. Consequently, the court ruled that the application for an order nisi should be refused, and the applicant was ordered to pay the respondent's costs thrown away due to this non-compliance.

Orders

Orders of the court

1. Order 51A r 5(1) of the Federal Court rules not apply.

2. The application for an order nisi be refused.

3. The applicant pay the respondent’s costs thrown away by non-compliance with the Court’s directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EMMETT J

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Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

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