S323 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1581

FEDERAL COURT OF AUSTRALIA

S323 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1581

APPLICANT S323 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

NSD2398 OF 2003

EMMETT J
9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2398 OF 2003

BETWEEN:

APPLICANT S323 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND 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 2398 OF 2003

BETWEEN:

APPLICANT S323 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	9 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  On 10 August 1998, the applicant lodged an application for a protection (class AZ) visa under the Migration Act 1958 (Cth) (‘the Act’). On 21 September 1998, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 20 October 1998, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 23 August 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 18 June 2003, together with an affidavit affirmed 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 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.  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 grounds upon which relief was claimed in the draft order nisi were as follows: 

   ‘(a)the third respondent did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed.

   (b)the third respondent’s decision was affected by an ‘error of law’ and ‘jurisdictional error’ and lack of procedural fairness.

   (c)There was no evidence or other material to justify in making of the decision.

   (d)The applicant was denied natural justice in being denied a reasonable opportunity to be heard on his application before the first respondent.

   (e)There has been a constructive failure of jurisdiction by the first respondent’s decision of 21 September 1998, failed to address the correct legal question committed to him by not applying himself to all of those issues he was required to consider in determining the matter before him.

   (f)There was a failure of the first respondent’s agent to exercise jurisdiction in the decision of 21 September 1998 because he did not reach a state of satisfaction bases upon a correct understanding of the law on which he acts.

   (g)The decision of the first respondent’s agent of 21 September 1998 was made in breach of the rules of natural justice.’

   No particulars were provided.  The applicant’s affidavit does not provide any particulars or develop the grounds further. 

5. 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 five (5) 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