S502 of 2003 v Refugee Review Tribunal

[2005] FMCA 1674

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S502 of 2003 v REFUGEE REVIEW TRIBUNAL & ANOR [2005] FMCA 1674

MIGRATION – Application for orders nisi in respect of a decision of the Refugee Review Tribunal – application remitted from the High Court – application late, following earlier proceedings in the Federal Court and disclosing no arguable case – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
High Court Rules
Migration Act 1958 (Cth), s.417

Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491

Applicants: APPLICANTS S502 OF 2003

First Respondent:

Second Respondent:

REFUGEE REVIEW TRIBUNAL

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2339 of 2005

Judgment of: Driver FM

Hearing date: 15 November 2005

Delivered at: Sydney

Delivered on: 15 November 2005

REPRESENTATION

The first and second applicants appeared in person and on behalf of the third and fourth applicants

Solicitors for the Respondent: Ms J Bautista
Sparke Helmore

INTERLOCUTORY ORDERS

1. For the purposes of Division 11.2 of the Federal Magistrates Court Rules 2001 (Cth), the first applicant is appointed as litigation guardian of the fourth applicant, and the first applicant is relieved of the obligation of filing an affidavit of consent or of notifying the respondent of his appointment.

1. The application for orders nisi is refused.

1. The first and second applicants are to pay the second respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2339 of 2005

APPLICANTS S502 OF 2003

Applicants

And

REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for orders nisi that was instituted in the High Court of Australia on 15 September 2003.  The application is supported by an affidavit by the first applicant made on 9 September 2003 and filed on the same day as the application.  The parties consented on 8 October 2003 to the application being remitted to the Federal Court and the remittal occurred by order of Kirby J on 12 January 2004.  On 5 August 2005, Emmett J transferred the proceeding to this Court.  The matter came before Registrar McIllhatton in this Court for directions on 23 September 2005.  She ordered, by consent, that the applicant file and serve any further affidavit evidence on or before 1 November 2005 and any written submissions by the same date.  She listed the matter before me today.

1. During the hearing the first applicant was appointed litigation guardian of the fourth applicant pursuant to division 11.2 of the Federal Magistrates Court Rules 2001 (Cth) and I relieved the first applicant of the obligation under those rules to give notice to the respondents or to file an affidavit of consent.

1. The first applicant appeared in person today and made some oral submissions.  I note that he had previously prepared written submissions which were filed in the Federal Court on 9 December 2004.  I inquired of the applicant why no further evidence had been filed in support of his application.  He told me that was because he had nothing further to present to the Court.  That leaves the applicant with a difficulty.  Although his application for orders nisi asserts jurisdictional error, the particulars are inadequate.  The applicant asserts procedural unfairness, but there is no evidence before the Court to potentially support that assertion apart from the decision of the Refugee Review Tribunal (“the RRT”) itself and what is asserted in the applicant's affidavit.  This is, in my view, insufficient to raise an arguable case of procedural unfairness.

1. The application also asserts a failure to take into account relevant considerations which are rather vaguely described as “compelling and compassionate circumstances” leading to major changes beyond the applicant's control.  In his oral submissions, the applicant told me that there are humanitarian concerns in his case because he came to Australia in 1997, sought protection and has remained here ever since, although he has been unable to work since 2003.  The applicant tells me that he has between 25 and 30 relatives in Australia, including a number of brothers and at least one parent.  He says that he cannot return to Sri Lanka and has received advice from the Minister's Department that he is ineligible to apply for a different class of visa in Australia.

1. I appreciate that the applicant finds himself in a difficult position and that there are humanitarian concerns by reference to his family connections to this country and the amount of time he has been here.  While I have sympathy for him, those humanitarian concerns are, however, beyond the scope of these proceedings.  In my view, the applicant has failed to raise an arguable case of a failure on the part of the RRT to take into account relevant considerations.

1. The applicant also asserts that the decision is so unreasonable that no reasonable person would have made it, but on my reading of the RRT decision and reasons that assertion cannot be sustained.  A general allegation of jurisdictional error contained in the application is not particularised.  On my reading of the decisions and reasons of the RRT, this applicant could not and does not demonstrate an arguable case of jurisdictional error.

1. I am also concerned at the procedural history in this matter. The decision of the RRT was handed down on 9 January 2001. The applicant commenced judicial review proceedings in the Federal Court on 24 January 2001 and on 1 August 2001 Moore J dismissed that application with costs. The applicant lodged an appeal with the Full Federal Court on 17 August 2001 and discontinued that appeal on 14 February 2002. The present proceeding was instituted in the High Court on 15 September 2003, apparently after the Minister had declined to consider intervention under s.417 of the Migration Act 1958 (Cth).

1. In my view, the earlier proceedings in the Federal Court which were dismissed and discontinued and the approach to the Minister seeking intervention is no sufficient justification for the excessive delay in commencing the present proceedings in the High Court.  The High Court Rules as they applied at the time of the filing of the application in the High Court are in my view relevant.  Order 55 rule 30 imposed a time limit of two months on applications for mandamus and Order 55 rule 17 imposed a six month time limit on applications for certiorari.  That time can be enlarged but the High Court has made clear its reluctance to enlarge time beyond a period of 12 months[1].  The delay in the present case is much longer than that.

   [1] Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491

1. Ms Bautista submits that even if an arguable case had been demonstrated the Court should in its discretion decline to provide relief having regard to the unsatisfactory procedural history.  I think there is force in that submission.  I cannot see an arguable case and in any event there would be strong grounds for the Court to refuse relief in the exercise of discretion.  The humanitarian considerations that are raised in this case are matters for the Minister and her Department to consider.

1. I will order that the application be dismissed.

1. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $1,500 for work undertaken in all three courts that have dealt with this matter.  I agree that the sum sought is reasonable.  I will order that the first and second applicants pay the second respondent's costs and disbursements of and incidental to the application, fixed in the sum of $1,500.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  21 November 2005