S1811 of 2003 v Refugee Review Tribunal

[2004] FCA 866

FEDERAL COURT OF AUSTRALIA

S1811 of 2003 v Refugee Review Tribunal [2004] FCA 866

S1811 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

N2406 OF 2003

EMMETT J
30 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2406 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S1811 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

30 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A rule 5(1) of the Federal Court Rules does not apply. 

2.        The application for an order nisi be refused. 

3.        The applicant to pay the Minister’s costs of the proceeding.

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	N2406 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S1811 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	30 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was commenced by the filing of an affidavit and a draft order nisi in the High Court of Australia on 12 June 2003.  The proceeding was subsequently remitted to this Court by the High Court.  The applicant was originally represented by Brett Slater, solicitors, who have now withdrawn.  However, Mr Jayawardena has today appeared for the applicant indicating that he was instructed to do so as recently as yesterday.  Mr Jayawardena has asked for leave to file further evidence in support of the application.

2. In the light of the recency of his instructions, he is unable to indicate precisely what further evidence would be adduced.  There is no indication from the applicant as to why the evidence had not been filed before today.  The affidavit as filed in the High Court does not, of itself, indicate grounds or evidence disclosing an arguable case for prerogative writ relief in respect of the decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) not to grant a protection visa to the applicant.

3. In the circumstances, it appears to me to be appropriate to refuse the application for further time to file evidence.  If the applicant is so minded, a proper application can be made to this Court, or to the Federal Magistrates Court, seeking relief supported by appropriate evidence. 

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:	Chandra Jayawardena
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 April 2004
Date of Judgment:	30 April 2004