S315 of 2003 v Refugee Review Tribunal

[2005] FCA 1677

FEDERAL COURT OF AUSTRALIA

S315 of 2003 v Refugee Review Tribunal [2005] FCA 1677

APPLICANT S315 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

NSD 2456 OF 2003

EMMETT J
23 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD N2456 OF 2003

BETWEEN:

APPLICANT S315 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

THE COMMONWEALTH
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	S315 OF 2005

BETWEEN:

APPLICANT S315 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

THE COMMONWEALTH
THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	23 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan.  On 14 September 1994, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 22 May 1995, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 12 June 1995, the applicant applied to the Refugee Review tribunal (‘the Tribunal’) for review of the delegate’s decision. On 25 October 1996, 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 18 June 2003, together with an affidavit sworn on 17 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 (‘Muin’). 

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 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 was as follows:

   ‘a)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.’

5. No particulars were provided.  The applicant’s affidavit does not provide any particulars nor allege anything further.

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 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 six (6) 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