S210 of 2003 v Refugee Review Tribunal [2005] FCA 1579 (9 November 2005)

Last Updated: 10 November 2005

FEDERAL COURT OF AUSTRALIA

S210 of 2003 v Refugee Review Tribunal [2005] FCA 1579

APPLICANT S210 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS
NSD1014 OF 2003




EMMETT J
9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1014 OF 2003

BETWEEN:	APPLICANT S210 OF 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	9 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Order 51A rule 5(1) not apply to the proceeding.

2. The application for orders 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 1014 OF 2003

BETWEEN:	APPLICANT S210 OF 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT
JUDGE:	EMMETT J
DATE:	9 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of Bangladesh. On 3 February 1997, the applicant applied to the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). The application was refused on 29 May 1997 and on 10 June 1997, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the decision. By its decision of 26 March 2001 (‘the Decision’), the Tribunal affirmed the Minister’s decision not to grant a protection visa to the applicant.

2 On 22 May 2003, the applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi and an affidavit affirmed on that date. In his affidavit, the applicant recounted that he was a person named in the schedule to the statement of claim in proceeding brought in the High Court of Australia no. S89 of 1999, Muin v Refugee Review Tribunal [2002] HCA 30. The matter was remitted to this Court pursuant to an order of the High Court following that decision.

3 On 12 November 2004, the District Registrar of the Federal Court wrote to the applicant inviting him to make written submissions on the question of whether there is an arguable case for the grant of the relief claimed by the draft order nisi in the material before the Court. There has been no response to that letter. In the circumstances, it is appropriate that the application for an Order nisi be dealt with without any oral hearing or argument and for Order 51A rule 5(1) of the Federal Court Rules to be dispensed with (see Applicant s195 of 2003 v Refugee Review Tribunal [2005] FCA 1571).

4 The grounds upon which relief was claimed in the draft order nisi were as follows:

‘(a) error of jurisdiction in making the decision dated 26 March 2001 by the first respondent;
(b) denial of natural justice due to the failure to accord the applicant procedural fairness by the first respondent in determining his review application dated 10 June 1997.’

No particulars were provided. The applicant’s affidavit reiterates the complaints and asserts that the Tribunal’s failure to draw to the applicant’s attention to adverse country information before the Tribunal. However, the Tribunal’s reasons state that the conclusion that the applicant was not a person to whom Australia owed protection obligations was reached on the basis of the Tribunal’s inability to accept the applicant’s claims and was not based on adverse country information.

5 On an application such as this, for orders requiring the respondents to show cause why final relief should not be granted, the purpose of any affidavit in support is to provide material showing that there is at least an arguable case for the grant of the final relief claimed. However, the material must be more than mere pleading or assertion of the right to such relief. The material must contain some evidence of facts that would support the grant of the relief claimed. In the context of the relief claimed by the present applicant, there should be material that would show that it is at least arguable that the Tribunal fell into jurisdictional error in making the Decision, such that orders would be made to quash the Decision and to restrain the Minister from acting on the Decision. The material presently before the Court does not disclose an arguable case, in that sense.

I certify that the preceding five (5) 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