S69 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 904

FEDERAL COURT OF AUSTRALIA

S69 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 904

S69 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N2599 OF 2003

EMMETT J
30 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2599 OF 2003

BETWEEN:

S69 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

ELIZABETH JENSEN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

30 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A rule 5(1) of the Federal Court rules does not apply.

2.        The application for an order nisi be refused.

3.        The adult applicants pay the Minister’s costs of the proceeding.

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	N2599 OF 2003

BETWEEN:

S69 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

ELIZABETH JENSEN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	30 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 27 February 2003 the applicant filed an affidavit in the High Court of Australia to which there was annexed a draft order nisi seeking constitutional writ relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 12 March 1998 affirming a decision of the Minister not to grant protection visas to the applicants.  The affidavit does not disclose any facts that would constitute grounds of review other than an assertion that there was a breach of the rules of natural justice, an error of law, failure to observe procedures required by law, the improper exercise of power and the absence of evidence to justify the making of the decision.

2. On 25 August 2003 Haydon J ordered that the matter be remitted to this Court.  The matter was listed for call over today.  On 29 April 2004 the applicant filed a document entitled Amended Application which specifies totally different grounds of review.  No leave was given to file the document called an Amended Application.  The Minister asks that the Court refuse an order nisi on the basis of the material that was remitted to this Court by the High Court.  The refusal of an order nisi at this stage would not preclude the applicants from commencing an appropriately formulated proceeding for relief if they have a case for such relief.

3. No application had previously been filed to this Court, hence the document entitled Amended Application is a complete misnomer.  The solicitor for the applicants contends that the grounds specified in the so-called Amended Application are available without any further evidence.  Be that as it may, the matter which is before the Court on remitter is the application for an order nisi.  I consider that the application should be refused.  That, of course, would not preclude the applicants from commencing proceedings, as I have said, seeking such relief as they are entitled.

4. It may well be, of course, that the delays that have occurred may mitigate against the grant of relief.  That, however, would be a matter for the Court if such an application were to be made. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            12 July 2004

Solicitor for the Applicant:	Silva Solicitors
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 April 2004
Date of Judgment:	30 April 2004