S516 of 2003 v Refugee Review Tribunal

[2004] FCA 675

FEDERAL COURT OF AUSTRALIA

S516 of 2003 v Refugee Review Tribunal [2004] FCA 675

S516 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

N 2534 OF 2003

EMMETT J
9 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2534 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S516 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

9 FEBRUARY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A r 5(1) of the Federal Court Rules not apply.

2.        The application for an order nisi be refused.

3.        The applicant pay the Minister’s cost of the proceeding to date. 

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	N 2534 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S516 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	9 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 25 September 2003 the applicant filed a draft order nisi in the High Court supported by an affidavit sworn on 23 September 2003.  The applicant sought constitutional writ relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 18 June 1997.  The affidavit discloses no evidence of any basis upon which relief could be granted. 

2. On 3 November 2003 the solicitors for the Minister wrote to the solicitors for the applicant indicating that there appeared to be no basis for the relief claimed, suggesting that the matter be remitted to this Court and indicating that the letter would be relied upon in any future application for costs.  When the matter was called on for directions, the solicitor for the applicant indicated a desire to file an amended application disclosing some basis for relief.  I consider it more appropriate to dispose of the order nisi application.  If any further application for relief is to be filed, that can be done in a form that discloses some cause of action. 

3. Accordingly I refuse an order nisi.  In light of the foreshadowing of an application for costs, I consider it appropriate to order that the applicant pay the Minister’s costs of the proceeding to date. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            31 May 2004

Solicitor for the Applicant:	Ward Maxwell & Co
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 February 2004
Date of Judgment:	9 February 2004