S254 of 2003 v Refugee Review Tribunal

[2005] FCA 1610

FEDERAL COURT OF AUSTRALIA

S254 of 2003 v Refugee Review Tribunal [2005] FCA 1610

APPLICANT S254 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

NSD 1058 OF 2003

EMMETT J
9 NOVEMBER 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1058 OF 2003

BETWEEN:

APPLICANT S254 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 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 1058 OF 2003

BETWEEN:

APPLICANT S254 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 the Philippines.  On 8 August 1996, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 21 January 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 21 February 1997, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 11 July 1997, 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 30 May 2003, together with an affidavit sworn on 27 May 2003. The matter was remitted to this Court pursuant to an order of the High Court following the decision of Muin 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 draft order nisi lists no grounds upon which relief is claimed. The applicant’s affidavit asserts that:

   ‘8.Had I known during the process of evaluation by the Tribunal that it failed to look at and evaluate all the relevant and important evidence, I would have immediately produced or pointed out relevant information which would have supported my application for review.’

5. The Tribunal’s wrote to the applicant on 25 June 1997, inviting the applicant to attend a hearing because it was unable to reach a favourable decision on the papers alone. The Tribunal’s reasons recount that neither the applicant nor her advisor replied to that letter and the Tribunal was obliged to reach its conclusion on the papers alone. The letter unequivocally explains the outcome of the applicant’s matter if she did not attend the hearing.

6. 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 six (6) 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