Applicant S335 of 2003 v Refugee Review Tribunal [2005] FCA 1439 (28 September 2005)

Last Updated: 24 October 2005

FEDERAL COURT OF AUSTRALIA

Applicant S335 of 2003 v Refugee Review Tribunal [2005] FCA 1439

APPLICANT S335 OF 2003 v REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1654 of 2005

LINDGREN J
28 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1654 OF 2005

BETWEEN:	APPLICANT S335 OF 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	28 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.
2. The applicant pay the second respondent's costs of the application for leave to appeal.
3. The amount of the costs referred to in order 2 be fixed at $600.

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 1654 OF 2005

BETWEEN:	APPLICANT S335 OF 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT

JUDGE:	LINDGREN J
DATE:	28 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 The applicant seeks leave to appeal against orders made by a judge of the court on 25 August 2005. The application was called today, but the applicant has not appeared. His non-attendance was foreshadowed in a note which he sent to the court accompanying his outline of submissions.

BACKGROUND

2 On 31 March 1998 the Refugee Review Tribunal affirmed a decision of a delegate of the respondent Minister, not to grant a protection visa to the applicant and to other members of his family.
3 The Applicant applied in the High Court of Australia for a constitutional writ in respect that decision and the matter was remitted to this Court. It was that matter which was the subject of his Honour's orders.
4 The primary judge dealt with the matter on the papers and had before him written submissions from the parties. The applicant's written submissions, apart from making several statements of fact, appears to have complained of only one irregularity touching the procedure before the Tribunal. This was that he was denied procedural fairness and natural justice by not being given a fair opportunity to respond to country information on which the Tribunal relied (para 13 of applicant’s submissions dated 9 December 2004).
5 However, the Tribunal's reasons for decision stated (at 6-7):
The Tribunal presented a range of country information to the applicants, including material included in this decision and a full copy of the United States Department of State Report on Human Rights in Fiji for 1997. The Tribunal gave the applicant’s adviser until Friday 27 March to submit any further comments on that information. At the date of decision no further information had been received.

The Tribunal’s decision was dated 31 March 1998.

6 The primary judge delivered short reasons for his judgment. They stated:

‘1. I have considered the papers filed in this case including the applicant's submissions. Having considered the decision of the Refugee Review Tribunal I do not think that any of the grounds referred to by the applicant is fairly arguable in this case. Accordingly, it would be inappropriate to grant an order nisi.

2. I propose to order that subrule (1) of Order 51A rule 5 not apply to this case and that the application for an order nisi be refused.’

7 The formal orders made by his Honour were that:
‘1. Subrule (1) of Order 51A rule 5 not apply to this application.

2. The application for an order nisi be refused.’

Order 51A rule 5 of the Federal Court rules provides as follows:

‘1. Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge:

(a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and
(b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.

2. In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.’

8 The fact that his Honour ordered that subrule (1) of order 51A rule 5 not apply makes it clear that he was not hearing the parties on the question whether, if an order nisi were made, it should be made absolute. Rather, he was dealing only with the interlocutory question of whether an order nisi should be made.
9 Leave to appeal from that interlocutory decision is, of course, required.

CONSIDERATION

10 There are no sufficient grounds to doubt the correctness of the orders made by his Honour. There was no merit in the ground of failure to accord procedural fairness.
11 In para 7 of the outline of the applicant’s submissions before me, which are much longer than those that were before his Honour, that ground is taken up again, but I have already indicated that the Tribunal allowed an opportunity to respond to the country information in question.
12 In his outline of submissions the applicant raises 12 issues and puts a supporting argument in relation to each one of them. It is only the one relating to failure to accord procedural fairness that was raised by the applicant in his earlier submissions before the primary judge. I do not think it necessary to refer to the other 11 grounds, both because they were not raised before his Honour and also because they all challenge the merits of the decision of the Tribunal.

CONCLUSION

13 For the above reasons the application for leave to appeal should be dismissed with costs which, at the second respondent’s request, I will fix at $600.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 12 October 2005

The applicant did not appear
Solicitor for the Respondent:	Kristy Alexander of Australian Government Solicitor
Date of Hearing:	28 September 2005
Date of Judgment:	28 September 2005