S293 of 2003 v Refugee Review Tribunal

[2005] FCA 1544

FEDERAL COURT OF AUSTRALIA

S293 of 2003 v Refugee Review Tribunal [2005] FCA 1544

APPLICANT S293 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

NSD 2447 OF 2003

EMMETT J
26 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2447 OF 2003

BETWEEN:

APPLICANT S293 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:

26 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed pursuant to O 35A r 3(1)(a) of the Federal Court Rules.

2.        The applicant pay the second and third respondent’s costs.

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	NSD2447 OF 2003

BETWEEN:

APPLICANT S293 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:	26 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 11 April 1995.  On 2 May 1995 he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 13 February 1996 a delegate of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa and on 8 March 1996 the applicant applied to the first respondent, the Refugee Review Tribunal, for review of the delegate’s decision. On 10 February 1997 the Tribunal affirmed the decision not to grant a protection visa.

2. On 13 June 2003 the applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi and an affidavit affirmed on the same day.  By the draft order nisi the applicant claimed constitutional write relief in respect of the decision of the Tribunal and of the Minister’s delegate. In his affidavit the applicant recounted that he was a person named in the schedule of the statement of claim in proceeding brought in the High Court of Australia, S89 of 1999, Lie 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 and the material before the Court.  There was no response to that letter from the District Registrar.  Further, there is evidence before the court that the applicant in fact left Australia on 9 August 2005. 

4. The Minister’s solicitors request the Court to refuse an order nisi and make an order that the applicant pay the Minister’s costs.  The applicant was notified by letter addressed to his address for service that the matter would be dealt with in Court today.  When the matter was called on there was no appearance for the applicant. 

5. In the circumstances, it is appropriate to accede to the Minister’s request.

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:            1 November 2005

No appearance for the Applicant
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 October 2005
Date of Judgment:	26 October 2005