S1797 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1592

FEDERAL COURT OF AUSTRALIA

S1797 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1592

S1797 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

NSD2748 OF 2003

EMMETT J
9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2748 OF 2003

BETWEEN:

S1797 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
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 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	NSD2748 OF 2003

BETWEEN:

S1797 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

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

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China.  On 23 December 1998, the applicant lodged an application for a Protection Visa under the Migration Act 1958 (Cth) (‘the Act’). On 25 February 1999, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 6 April 1999, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the decision. On 18 August 1999, the Tribunal affirmed the delegate’s decision (‘the Tribunal’s Decision’).

2. The applicant commenced a proceeding in the High Court of Australia, by filing a draft order nisi on 5 June 2003, together with an affidavit sworn on that date seeking relief in respect of the Tribunal’s Decision.  The matter was remitted to this Court pursuant to an order of the High Court following the decision of Muin v Refugee Review Tribunal [2002] HCA 30.

3. On 12 November 2004, the District Registrar of the Federal 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.  There has been no response to that letter. For the reasons set out in Applicant S195 v Refugee Review Tribunal [2005] FCA 1571, it is appropriate for this matter to be dealt with on the papers and for Order 51A rule 5(1) of the Federal Court Rules to be dispensed with.

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

   ‘a.the decision of the third respondent involved jurisdictional error in that it failed to accord procedural fairness to the prosecutor/applicant.

   Particulars

   (1)The second respondent advised the prosecutor/applicant that it had looked at all the papers relating to his application, including the Part B documents, when it had not.

   (2)The prosecutor/applicant was thereby misled into thinking that it was unnecessary for him to draw the information in the Part B documents that favoured his application to the attention of the third respondent.  Had the prosecutor/applicant not been misled in that regard, he would have taken steps to correct that situation. 

   (3)Particulars of the relevant documents will be supplied. 

   b.the decision of the third respondent involved jurisdictional error in that it failed to accord procedural fairness to the prosecutor/applicant.

   Particulars

   The third respondent failed to provide the prosecutor/applicant a reasonable opportunity to respond to material that the third respondent took into consideration in reaching its conclusion.

   Particulars of the relevant documents will be supplied.’

5. The applicant alleges in the affidavit:

   ‘(a)     the impugned decision is manifestly invalid; and

   (b)     the Applicant’s life is demonstrably at risk.’

   He does not elaborate, and makes no further allegations. 

6. 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 a 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 Tribunal’s Decision, such that orders would be made to quash the Decision and to restrain the Minister from acting on the Decision. The material presently before the Court does not disclose an arguable case, in that sense.  

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             9 November 2005

Date of Judgment: 9 November 2005