S1123 of 2003 v Refugee Review Tribunal

[2004] FCA 867

FEDERAL COURT OF AUSTRALIA

S1123 of 2003 v Refugee Review Tribunal [2004] FCA 867

S1123 OF 2003 v REFUGEE REVIEW TRIBUNAL

N1140 OF 2003

EMMETT J
30 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1140 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S1123 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.        The motion be dismissed. 

2.        The applicant on the motion to pay the respondent’s costs of the motion.

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	N1140 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S1123 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 January 2004 a notice of discontinuance was filed.  The notice of discontinuance bears the signatures of the solicitor for the applicant, the solicitor for the respondent, and was filed by consent.  On 11 March 2004 a notice of motion was filed on behalf of the applicant seeking an order that the applicant be given leave to prosecute the application for an order of review in the Federal Court of Australia.  The proceeding itself was the result of a remitter by the High Court of an application for an order nisi in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) to refuse a protection visa.

2. The draft order nisi and the affidavit in support of it filed in the High Court disclosed no cause of action.  The present notice of motion was supported by an affidavit indicating that after instructions had been given by the applicant to discontinue the matter and the agreement of the Minister’s solicitor had been secured, the applicant changed his mind and decided that he wished to proceed with the application.  I am not satisfied that I have power to make any order sought in the notice of motion.  In any event, as a matter of discretion and in the circumstances, I would refuse to make the order for two reasons.

3. The first reason I refuse to make the order is because the notice of discontinuance was filed by consent.  The second reason is that prosecuting the application in its present form would have no utility since it would most likely fail. 

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:            5 July 2004

Solicitor for the Applicant:	Newman & Associates
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 April 2004
Date of Judgment:	30 April 2004