S244 of 2003 v Refugee Review Tribunal

[2005] FCA 1462

FEDERAL COURT OF AUSTRALIA

S244 of 2003 v Refugee Review Tribunal [2005] FCA 1462

S244 of 2003 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1616 of 2005

BRANSON J
6 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1616 of 2005

BETWEEN:

S244 of 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

6 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed.

2.        The applicant pay the respondents’ costs fixed in the sum of $500.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1616 of 2005

BETWEEN:

S244 of 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	BRANSON J
DATE:	6 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By an order dated 1 September 2005 Sackville J ordered that the applicant’s application for orders nisi for constitutional writs in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) be dismissed with costs.  The applicant now seeks leave to appeal from that interlocutory judgment.

2. The decision of the Tribunal was handed down on 9 January 2001.  The judgment of Sackville J is dated 1 September 2005.  The applicant has this morning sought an adjournment of this hearing.  She has told the Court that she has an appointment to see a barrister concerning this matter on 19 October 2005.  I have not considered it appropriate to grant the adjournment sought.

3. The application is extraordinary in nature in that it seeks leave to appeal from a judgment refusing an application for the issue of orders nisi.  A long period of time has passed since the decision of the Tribunal.  Approximately five weeks have passed since the publication of the judgment of Sackville J.  The applicant has in my view had more than adequate opportunity to seek legal advice. 

4. It is unnecessary for me on this application to give consideration to whether, were it shown that the judgment of Sackville J is, or might be, affected by error, it would be appropriate to grant leave to appeal from the judgment.  It cannot reasonably be suggested that any error affects the interlocutory judgment of his Honour.

5. The affidavit sworn by the applicant in support of this application identifies the following proposed grounds of appeal:

   ‘(a)The primary judge erred in finding that I did not have an arguable case.

   (b)The primary judge erred in finding that I was not denied procedural fairness by the First Respondent.

   (c)The primary judge failed to make a finding as to whether or not I was denied natural justice by the Respondent.

   (d)The primary judge failed to make a finding on the issue raised by me as to the requirement of procedural fairness as stated in the case Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 LAJR (sic) 889; 179 ALR 238.’

6. As the primary judge identified in his reasons for judgment, the Tribunal wrote to the applicant advising her that it had considered all of the papers relating to her application for a protection visa but was unable to make a decision in her favour on that material alone.  The applicant was invited to attend a hearing.  She chose not to reply to the Tribunal’s letter and did not attend the Tribunal hearing.  In the circumstances the applicant was given an opportunity to give evidence to the Tribunal and to answer questions that the Tribunal wished to ask her.  She chose not to take the opportunity.  As his Honour pointed out, she did not make out an arguable case of a denial of procedural fairness or, as it is alternatively described, natural justice.

7. Nothing in Ex Parte Miah (2001) 179 ALR 238, on which the applicant placed reliance, suggests to the contrary.

8. The application is dismissed.  I fix the respondents’ costs in the sum of $500.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             14 October 2005

The Applicant appeared in person.
Counsel for the First and Second Respondent:	A Markus
Solicitor for the First and Second Respondent:	Australian Government Solicitor
Date of Hearing:	6 October 2005
Date of Judgment:	6 October 2005