S191 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1606

FEDERAL COURT OF AUSTRALIA

S191 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1606

S191 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD968 OF 2003

EMMETT J
9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 968 OF 2003

BETWEEN:

APPLICANT S191 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	NSD 968 OF 2003

BETWEEN:

APPLICANT S191 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 Indonesia.  On 10 November 1992, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 23 December 1992, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 29 January 1993, the applicant applied to the Refugee Status Review Committee for review of that decision and on 1 July 1993 that application was transferred to the Refugee Review Tribunal (‘the Tribunal’). On 21 March 1995, the Tribunal affirmed the delegate’s decision.

2. The applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi on 21 May 2003, together with an affidavit sworn on 19 May 2003. The matter was remitted to this Court pursuant to an order of the High Court following the decision of Lie v The 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. In the circumstances, it is appropriate that the application for an Order nisi be dealt with without any oral hearing or argument and for Order 51A rule 5(1) of the Federal Court Rules to be dispensed with (see s195 of 2003 v Refugee Review Tribunal [2005[ FCA 1571).

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

   ‘(a)a breach of the rules of natural justice occurred in connection with the making of the Decision.

   (b)the Decision involved an error of law, whether or not the error appears on the record of the Decision.

   (c)procedures that were required by law to be observed in connection with the making of the Decision were not observed.

   (d)the making of the Decision was an improper exercise eof the power conferred by the enactment in pursuance of which it was purported to be made.

   (e)that there was no evidence or other material to justify the making of the Decision.

   (f)       the Decision was otherwise contrary to law.’

   No particulars were provided.  The applicant’s affidavit merely reiterates these complaints and does not develop them further. 

5. 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 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 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 five (5) 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