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
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.
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.
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.
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.
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.
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.
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.
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
Details
AGLC
S363 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1612
Case
[2005] FCA 1612
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, S363 of 2003 brought proceedings against the Minister for Immigration and Multicultural and Indigenous Affairs. The applicant, a non-citizen, sought judicial review of a decision made by the Minister that he was not a person to whom Australia owed protection obligations. The dispute centred on the interpretation and application of relevant legislative provisions concerning the grant of protection visas.
The court was tasked with determining whether the Minister's decision was legally sound and whether there were grounds to grant the relief sought by the applicant. Key issues included the correct interpretation of statutory language and the application of the principle of non-refoulement under international law. The court needed to assess the evidence and arguments presented to ascertain whether the Minister's decision was lawful and whether the applicant was entitled to a protection visa.
After considering the submissions and evidence, the court found that the Minister's decision was well-founded and that there were no errors in law. The court held that the statutory provisions were correctly applied, and that the applicant's circumstances did not warrant the grant of a protection visa. The court further determined that the application for an order nisi was not appropriate in the circumstances. Consequently, the court refused the application for the order nisi and dismissed the case.
Orders
Orders of the court
1. Subrule (1) of Order 51A rule 5 of the Federal Court Rules does not apply to this application.