S197 of 2003 v Refugee Review Tribunal

[2005] FCA 1603

FEDERAL COURT OF AUSTRALIA

S197 of 2003 v Refugee Review Tribunal [2005] FCA 1603

APPLICANT S197 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

NSD972 OF 2003

EMMETT J
9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 972 OF 2003

BETWEEN:

APPLICANT S197 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
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 972 OF 2003

BETWEEN:

APPLICANT S197 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

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

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka.  On 11 February 1999, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 12 March 1999, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 29 March 1999, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 29 March 2000, 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 20 May 2003, together with an affidavit sworn on 19 May 2003. In her affidavit, the applicant states she was a party to the class action in a proceeding in the High Court of Australia. The matter was remitted to this court pursuant to an order of the High Court following the decision of Lie 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. 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 Applicant s195 of 2003 v Refugee Review Tribunal [2005] FCA 1571).

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

   ‘1.The Applicant was denied natural justice and procedural fairness to be observed by the Tribunal with respect to its review of the delegate’s decision and in reaching its ultimate decision.’

   After providing a chronology of the applicant’s review process, the particulars provided are as follows:

   ‘(5)The applicant believes as a result of advice she received from her previous solicitor when she joined the class action that the facts relied on in the class action are similar to the facts of her case.

   (a)The Applicant believes that she has been denied natural justice and she relies on the High Court decision in Muin and Lie as she was accepted as a member of the class action.

   (6)The Tribunal did not at any time bring to the notice or attention of the Applicant any of the evidence it relied on in drawing a number of its critical adverse findings and conclusions against the Applicant and the Tribunal did not give the Applicant a fair opportunity to comment and explain why, such adverse inference or conclusion which the Tribunal was leaning towards was not justified.

   (7)The course of inquiry and investigation followed at the hearing by the Tribunal was unfair in so far as the Tribunal did not bring to the attention of the Applicant the substance and the nature of the specific evidence that the Tribunal intended to rely on and in fact did rely on in drawing adverse inferences against the Applicant and in reaching its ultimate conclusion that the Applicant is not a person to whom Australia has protection obligation.’

   The applicant’s affidavit merely reiterates those complaints and does not develop them further. In its reasons the Tribunal concludes that the applicant does not have a well-founded fear of persecution for a Convention reason based on her own claims and evidence.

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