S263 of 2003 v Refugee Review Tribunal

[2005] FCA 1676

FEDERAL COURT OF AUSTRALIA

S263 of 2003 v Refugee Review Tribunal [2005] FCA 1676

APPLICANT S263 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

NSD2489 OF 2003

EMMETT J
23 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2489 OF 2005

BETWEEN:

APPLICANT S263 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:

23 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	NSD2489 OF 2003

BETWEEN:

APPLICANT S263 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:	23 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka. On 30 June 1997, the applicant lodged an application for a Protection (Class AZ) Visa under the Migration Act 1958 (Cth) (‘the Act’). On 11 September 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 14 October 1997, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 27 October 1999, the Tribunal affirmed the decision, and the applicant sought review in the Federal Court. On 19 June 2000, the Federal Court ordered, by consent, that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for reconsideration according to law. On 27 November 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 2 June 2003, together with an affidavit affirmed on 2 June 2003. The matter was remitted to this Court pursuant to an order of the High Court following the decision of Muin v The 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. For the reasons set out in Applicant S195 v Refugee Review Tribunal [2005] FCA 1571, it is appropriate for this matter to be dealt with on the papers and for Order 51A rule 5(1) of the Federal Court Rules to be dispensed with.

4. The ground upon which relief was claimed in the draft order nisi, filed 2 June 2003, was as follows: 

   ‘(i)The Tribunal failed to afford the Applicant/Prosecutor natural justice because the Applicant/Prosecutor had not been given an opportunity (or at least an adequate opportunity) to prepare and present favourable material at hearing or an adequate opportunity to respond to unfavourable material.’

   No particulars were provided. 

5. The applicant also asserts, in his affidavit sworn 2 June 2003, the following:

   ‘8.       In or about 3 August 2000 I received from the First Respondent a letter dated 3 August 2000 (“the letter”).  The letter commenced: -

   “The Tribunal has looked at all the material relating to your application”…

   9.As a result of that letter I believed that the First Respondent (meaning the Member of the First Respondent deciding the review application) had read the part B documents and that it was not necessary for me to lodge them again with the First Respondent.  If I had known that the First Respondent had not read all of the part B documents I would have taken steps to ensure that some or all of those of the part B documents which were favourable to my case (“the favourable part B documents”) were lodged with the First Respondent for consideration by it in respect of the review application. 

   10.I assert that there are grounds for concluding that not all of the part B documents were sent by the said Department to the First Respondent and not all of the part B documents were considered by the First Respondent for the purposes of deciding my application. 

   11.…Of the 34 part B documents listed in the protection visa decision record I have found reference to only four part B documents in the review decision.  I have found no reference in the review decision to the following part B documents:

   [30 documents listed].’

6. The allegation contained in the affidavit is prima facie capable of attracting relief under the second limb of the ‘Muin and Lie’ ratio decidendi, that is, a misleading of the applicant into thinking that favourable country information had been considered by the Tribunal when in fact it had not.  However, it is no more than an allegation without particulars.  None of the country information is identified.

7. 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 of 25 October 1996, 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 seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            23 November 2005

Date of Judgment:  23 November 2005