S222 of 2003 v Refugee Review Tribunal

[2005] FCA 1600

FEDERAL COURT OF AUSTRALIA

S222 of 2003 v Refugee Review Tribunal [2005] FCA 1600

APPLICANT S222 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

NSD1021 OF 2003

EMMETT J
9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1021 OF 2003

BETWEEN:

APPLICANT S222 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:

9 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A rule 5(1) not apply.

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 1021 OF 2003

BETWEEN:

APPLICANT S222 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:	9 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  On 14 July 1999, he applied to one of the respondents, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). The application was refused on 12 October 1999 and on 9 November 1999, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the decision. By its decision of 23 May 2000 (‘the Decision’), the Tribunal affirmed the Minister’s decision not to grant a protection visa to the applicant.

2. On 26 May 2003, the applicant commenced a proceeding in the High Court of Australia by filing a draft Order nisi and an affidavit affirmed 26 May 2003.  In his affidavit, the applicant recounted that he was a person named in the schedule to the statement of claim in proceeding brought in the High Court of Australia no. S89 of 1999, Lie v Refugee Review Tribunal [2002] HCA 30. The matter was remitted to this Court pursuant to an order of the High Court following that decision. In the circumstances, it is appropriate that the application for an Order nisi be dealt with without any oral hearing or argument (see Applicant s195 of 2003 v Refugee Review Tribunal [2005] FCA 1571).

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

   ‘(a)error of jurisdiction in making the decision of 23 May 2000 by the Tribunal;

   (b)denial of natural justice due to the failure to accord the applicant procedural fairness by the Tribunal in determining the application for review of the delegate’s decision.’

   No particulars of the grounds were provided in either the affidavit or in the draft order nisi.

4. The affidavit asserts grounds of complaint in respect of the decision of the Tribunal as follows:

   ‘aThe Tribunal erred in law amounting to jurisdictional error in finding that it is…