S364 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1613

FEDERAL COURT OF AUSTRALIA

S364 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1613

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

APPLICANT S364 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

NSD 2566 OF 2003

EMMETT J
9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2566 OF 2003

BETWEEN:

APPLICANT S364 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

R MATHLIN
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 2566 OF 2003

BETWEEN:

APPLICANT S364 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

R MATHLIN
MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

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

REASONS FOR JUDGMENT

1. On 5 May 1994 the Refugee Review Tribunal (‘the RRT’) affirmed decisions of the primary decision-maker that the applicant is not a refugee under the Convention, and that the applicant be refused the grant of a Protection (Temporary) Entry Permit (After Entry).

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 that application is an affidavit by the applicant annexing a copy of the delegate’s decision, and of the RRT’s decision.

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 10 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. Much of the ‘Applicant’s Submission’ appears to have been culled from inappropriate precedents, as it refers to the position in Bangladesh and to fears of harm at the hands of the Awami League, whereas the applicant was a national of Fiji.

7. 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 seven (7) 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