S239 of 2003 v Refugee Review Tribunal

[2005] FCA 1584

FEDERAL COURT OF AUSTRALIA

S239 of 2003 v Refugee Review Tribunal [2005] FCA 1584

APPLICANT S239 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

NSD 1024 OF 2003

EMMETT J
9 NOVEMBER 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1024 OF 2003

BETWEEN:

APPLICANT S239 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 1024 OF 2003

BETWEEN:

APPLICANT S239 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 Bangladesh.  On 13 June 1998, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 9 July 1998, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 21 July 1998, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 30 May 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 29 May 2003, together with an affidavit affirmed on the same date. The applicant’s affidavit states that he joined the ‘class action’ in a proceeding brought in the High Court of Australia no. S89 of 1999, Muin 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.

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

   ‘(a)the respective member of the first respondent did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or the regulation to be observed in connection with the making of the decision were not observed.

   (b)the first respondent’s decision was affected by an “error of law” and “jurisdictional error” and lack of procedural fairness.

   (c)there was no evident or other material to justify in making of the decision.

   (d)I was denied natural justice in being denied a reasonable opportunity to be heard, in an unbiased environment, on his application before the second respondent.

   (e)there has been a constructive failure of jurisdiction by the second respondent’s agent Raul Mendoza as in the decision of 09/07/1998, failed to address the correct legal question committed to her by not applying herself to all the issues he was required to consider in determining the matter before her.

   (f)There was a failure of the second respondent’s agent to exercise his jurisdiction in the decision of 09/07/1998 because he did not reach a state of satisfaction bases upon a correct understanding of the law on which she acts.

   (g)The decision of the second respondent’s agent 09/07/1998 was made in breach of rules of natural justice.’

   No particulars were provided.  The applicant’s affidavit claims the Tribunal did not consider relevant information and documents, as it stated it had done in the letter inviting the applicant to attend a hearing. Furthermore, the applicant claims that the Minister led him to believe that the Tribunal had the documents when the Minister has not provided them to the Tribunal, and that, had he been aware that they were not before the Tribunal, he would have taken steps to correct the situation. However, in the Tribunal’s reasons it clearly states that it has before it the Minister’s file, the applicant’s protection visa application and written submissions in support of the application. The applicant did not provide further particulars, nor answer the Court’s request for written submissions.

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