S365 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1611

FEDERAL COURT OF AUSTRALIA

S365 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1611

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

APPLICANT S365 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 2567 OF 2003

EMMETT J
9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2567 OF 2003

BETWEEN:

APPLICANT S365 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 2567 OF 2003

BETWEEN:

APPLICANT S365 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 29 April 1998 the Refugee Review Tribunal (‘the RRT’) affirmed the 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 that application is an affidavit by the applicant annexing a copy of the delegate’s decision and 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 the finding of want of procedural fairness which flowed from the agreed facts in Muin.

6. The submission also asserts that the RRT’s decision ‘overwhelmingly depended’ on a Department of Foreign Affairs & Trade (‘DFAT’) report and that the RRT relied upon this ‘controversial’ report as the foundation for its decision without paying any attention to ‘additional evidences’ supplied by the applicant.  There is no evidence to support any of these assertions.  The RRT’s decision does not contain any reference to a DFAT report, but it does discuss a statutory declaration and press clippings lodged with the RRT on behalf of the applicant by his adviser on 16 April 1998.  The protection visa application failed because the RRT was not satisfied that a person having the low political profile which it attributed to the applicant would be of interest to anyone in Bangladesh which he had left in 1991, and because the RRT found that he had fabricated his claims.

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:             9 November 2005

Date of judgment:  9 November 2005