S253 of 2003 v Refugee Review Tribunal

[2004] FCA 907

FEDERAL COURT OF AUSTRALIA

S253 of 2003 v Refugee Review Tribunal [2004] FCA 907

S253 OF 2003 v REFUGEE REVIEW TRIBUNAL

N1057 OF 2003

EMMETT J
30 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1057 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANTS S253 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

30 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A r 5(1) of the Federal Court Rules not apply.

2.        The application for an order nisi be refused.

3.        The applicants pay the Minister’s costs of the proceeding to date.

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	N1057 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S253 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	30 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 30 May 2003 the applicants filed a draft order nisi and an affidavit in the High Court of Australia seeking constitutional writ relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) to refuse protection visas to the applicants.  The matter was subsequently remitted to this Court by the High Court.  The affidavit in support of the relief claimed in the draft order nisi takes issue with the merits of the decision of the Tribunal.

2. For example, the affidavit states that the applicants vehemently object to the manner in which the Tribunal made its decision when it found that the applicants’ village, the adjacent areas, were attacked by the LTTE.  The affidavit refers to what are described as serious misdirections by the Tribunal in its findings.  The grounds stated in the draft order nisi are that the Tribunal exceeded its jurisdiction, that it erred in law and had bad faith towards the applicants.

3. There was no evidence at all to support those grounds in the affidavit.  In the circumstances I consider that it is appropriate to refuse an order nisi.  It would be open to the applicants, if they wish, to commence some other proceeding, supported by appropriate evidence, seeking prerogative writ relief in respect of the decision of the Tribunal if they are so advised. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            12 July 2004

Solicitor for the Applicant:	Chandra Jayawardena
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 April 2004
Date of Judgment:	30 April 2004