S351 of 2003 v Refugee Review Tribunal

[2004] FCA 903

FEDERAL COURT OF AUSTRALIA

S351 of 2003 v Refugee Review Tribunal [2004] FCA 903

S351 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

N2482 OF 2003

EMMETT J
30 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2482 OF 2003

BETWEEN:

S351 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

30 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A rule 5(1) of the Federal Court Rules does not apply. 

2.        The application for an order nisi be refused. 

3.The adult applicants to pay the costs of the second and third respondents.

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	N2482 OF 2003

BETWEEN:

S351 OF 2003

APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

30 APRIL 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. On 20 June 2003 a proceeding was commenced in the High Court by filing a draft order nisi and three affidavits in support of the order nisi.  The order nisi sought constitutional writ relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) refusing protection visas to the applicants.  The affidavits assert that the applicants provided additional information to the Tribunal in the form of a statutory declaration.  The affidavits assert that the statutory declaration was not complete and that had the deponent been asked about the issues by the Tribunal he would have been able to provide further evidence to the Tribunal in relation to the reasons why he claimed to be entitled to a protection visa.

2. The applicant husband claims he could also have provided further significant material in relation to affairs in Colombia where the applicants are citizens.  The Tribunal, in its reasons, records the fact that a substantial statutory declaration was provided on behalf of the applicants and that the Tribunal considered that in some detail.  The Tribunal also referred to the evidence given at the hearing conducted by the Tribunal.  The reasons of the Tribunal indicate that the applicant husband gave evidence about the reasons for his fears for returning to Colombia.

3. The Tribunal did not accept part of the applicant husband’s evidence in that regard.  Another affidavit asserts that the principal applicant’s wife was not interviewed by the Tribunal in relation to any evidence that she could give as to the harm she feared upon return to Colombia.  The Tribunal’s findings refer to evidence from the applicant's wife as to her fears.  It is impossible from the affidavits that have been filed to discern any reasonable case upon which it could be said that the Tribunal failed to afford the applicants natural justice because they were not given the opportunity or an adequate opportunity to prepare and present favourable material or an adequate opportunity to respond to unfavourable material.

4. One of the grounds suggested by the solicitor for the applicants is that there was material relating to Colombia that was available to the Tribunal but which is not referred to in the Tribunal’s reasons.  Much of the material referred to by the solicitor in his affidavit was, in fact, brought into existence after the Tribunal’s decision.  It cannot have any bearing on whether or not there was a denial of procedural fairness.  There is nothing in the affidavits to indicate that any of the material in any document that existed prior to the Tribunal’s decision would have changed the outcome.

5. I am not persuaded that the material submitted by applicants thus far discloses an arguable case for prerogative writ relief in relation to the decision of the Tribunal.  The applicants’ solicitor asked for further time to put on further evidence.  The only justification for that extension of time is that this is the first return day of the proceeding.  There was no explanation as to why the affidavits and other evidence could not have been prepared in the ten or more months since the proceeding was commenced in the High Court.  Refusal of order nisi would not, of itself, deprive the applicants of the right to take appropriate proceedings for relief, if any is available.  However, I am not persuaded on the material presently before the Court that there is an arguable case for constitutional writ relief.  Accordingly, I propose to refuse an order nisi. 

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:            12 July 2004

Solicitor for the Applicant:	Taylor & Scott
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 April 2004
Date of Judgment:	30 April 2004