S363 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1612

-FEDERAL COURT OF AUSTRALIA

S363 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1612

Muin v Refugee Review Tribunal (2002) 76 ALJR 966 cited

APPLICANT S363 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

NSD 2565 OF 2003

EMMETT J

9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2565 OF 2003

BETWEEN:

APPLICANT S363 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

CHRIS KEHER
MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

9 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

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

2.        The application for an order 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 2565 OF 2003

BETWEEN:

APPLICANT S363 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

CHRIS KEHER
MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

9 NOVEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. On 15 July 1999 the Refugee Review Tribunal (‘the RRT’) affirmed a decision of the Minister’s delegate not to grant the applicant a protection visa.

2. On 20 June 2003 the applicant lodged a draft order nisi in the High Court of Australia.  The only evidence filed in support of the application for the issue of an order nisi is an affidavit by the applicant annexing copies of the decisions of the delegate and the RRT.

3. On 12 November 2004 the Federal Court notified the applicant of the transfer of the High Court proceedings to this Court, and of the Court’s intention to consider whether an arguable case for the making of an order nisi had been made out on the papers without any oral hearing.

4. On 6 December 2004 the applicant filed a document styled ‘Applicant’s Submission’ with the Court, apparently in response to the invitation contained in the letter of 12 November 2004 to make written submissions on the question of whether an order nisi should issue.

5. The document styled ‘Applicant’s Submission’ seeks to invoke the decision of the High Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 (‘Muin’) but no facts have been established by evidence which could possibly lead to a finding of want of procedural fairness which flowed from the agreed facts in Muin.

6. The applicant’s claim failed because the RRT did not accept that the applicant held a position of significance or profile in the BNP as he claimed, and that the applicant had not been truthful with the RRT about his political involvement.  The RRT’s conclusions in this respect were largely based on an assessment of the applicant’s own evidence, and his lack of knowledge of the BNP’s activities.  The RRT also concluded that the applicant had provided false documents to the RRT.

7. The applicant’s submission complains that the RRT ‘did not consider my documents’.  There is no evidence in support of this contention, and it is plain on the face of the RRT’s decision that the documents were considered.  The submission complains of want of procedural fairness, but apart from the reference to Muin, there is a lack of specificity as to the way in which the RRT’s procedures are said to be unfair.  There are assertions that the RRT member was seriously prejudiced in arriving at his decision, but there is no evidence to support those assertions, and a complaint of bias cannot be substantiated on the face of the decision itself.  Much of the submission impermissibly intrudes into the area of merits review.

8. The applicant has not shown an arguable case for the Court to make an order nisi.  I therefore propose to order that subrule (1) of Order 51A rule 5 of the Federal Court Rules does not apply to refuse the application for an order nisi.

I certify that the preceding eight (8) 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