FEDERAL COURT OF AUSTRALIA

Applicant S1005 of 2003 v Refugee Review Tribunal [2004] FCA 1793

MIGRATION – application for interlocutory orders refusing order nisi be set aside and constitutional writs in respect of a decision of the Refugee Review Tribunal to affirm the decision of the Minister’s delegate not to grant a protection visa – application dismissed.

Migration Act 1958 (Cth)

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601

S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872

APPLICANT S1005 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

N2711 OF 2003

EMMETT J

3 AUGUST 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The notice of motion filed on 6 May 2004 be dismissed. 

2.         The applicant on the motion pay the second respondent’s costs of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     I have before me an application by notice of motion seeking orders that orders made on 30 April 2004 refusing orders nisi be set aside.  The applicant is an Iranian who arrived in Australia in 1995.  On 14 March 1996 he applied for a protection visa under the Migration Act 1958 (Cth) (‘the Act’).  That application was rejected on 30 July 1996.  An application for review of the decision to reject the application was made to the Refugee Review Tribunal (‘the Tribunal’) on 26 August 1996.  On 25 May 1998 the Tribunal affirmed the decision not to grant a protection visa. 

2                     The applicant says that he then appealed unsuccessfully to the Federal Court.  However, no particulars of that proceeding are before this Court.  Nevertheless, at some stage thereafter the applicant became a party to proceeding number S89 of 1999 in the High Court Lie v The Refugee Review Tribunal and Ors (see: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601).  Pursuant to orders made by Gaudron J on 25 November 2002 the applicant commenced a proceeding in his own right in the High Court on 20 May 2003.  That proceeding was commenced by way of an affidavit sworn on 19 May 2003 by Mr Ejaz Khan, solicitor, to which there were annexed a draft order nisi, the reasons for the decision of the Tribunal and particulars of the applicant.

3                     In accordance with the orders of Gaudron J, the proceeding was immediately remitted to this Court.  The proceeding, commenced together with a number of other matters by Ward Maxwell & Co, solicitors, was called over before me on 30 April 2004.  On that day, for reasons that I then gave, I ordered that O 51A r 5(1) of the Federal Court rules not apply and refused the application for an order nisi (S1775 of 2003 v Refugee Review Tribunal [2004] FCA 872). 

4                     By his notice of motion filed on 6 May 2004, the applicant seeks an order that those orders be set aside and that in lieu thereof constitutional writs be granted in respect of the decision of the Tribunal.  The orders made on 30 April 2004 were clearly interlocutory.  Accordingly, under O 35 r 7(2)(c), it would be open for the Court to make the orders claimed.  However, there would only be utility in making such orders if there was at least an arguable case for the grant of constitutional writ relief. 

5                     The applicant is presently unrepresented and appears in person.  He said in his affidavit in support of the present application that he thought he was being legally represented on 30 April 2004 but that he learned afterwards that his lawyer made no arguments on his behalf.  In his affidavit sworn on 14 May 2004 he said that the orders that I made should be set aside because of errors in finding that:

·        the Tribunal decision was not affected by jurisdictional error;

·        the Tribunal did not breach the rules of natural justice; and

·        the Tribunal did not have an obligation to give notice of adverse findings.

6                     The affidavit indicates that some assistance was received from the Asylum Seeker Resource Centre in making those assertions.  It seems that the person who rendered that assistance may have no comprehension of the nature of the proceeding and apparently has not read my reasons for making the orders of 30 April 2004.  When invited to address the Court in support of his application, the applicant simply said that his case has strong merit.  The applicant sought consideration from the Court as he was unrepresented and unable to present his case adequately.  He stated that he felt this hearing was his last hope.  As I will explain that also seems to be a misapprehension.

7                     The orders made on 30 April 2004 were not concerned with the merits of the applicant’s case.  His application for an order nisi was dismissed because no arguable grounds were disclosed by the material before me.  That position has not changed.  It would therefore be open to the applicant to commence a proceeding, either in the Federal Magistrates Court or in this Court, seeking appropriate relief in respect of the decision of the Tribunal.  However, such a proceeding would be pointless unless the applicant is able to demonstrate some grounds upon which relief could be granted. 

8                     In the proceeding commenced in the High Court, which was subsequently remitted to this Court, the grounds stated were as follows. 

‘1.        The decision of the Tribunal was beyond its jurisdiction.

 2.        There was a denial of procedural fairness in that the Tribunal took into account matters adverse to the applicant without notice to him.

 3.        The Tribunal breached the rules of natural justice in connection with the decision.

 4.        The procedure that was required by law to be observed in order to make the decision was not observed.

 5.        The making of the decision was an improper exercise of the powers conferred by the Migration Act.’

9                     Those grounds were supported by nothing other than Mr Ejaz Khan’s affidavit of 19 May 2003.  In that affidavit Mr Khan said as follows:

‘7.        The prosecutor contends that the First Respondent took into account written submissions by the Secretary of the Department of Immigration and Multicultural Affairs and Indigenous Affairs made pursuant to section 423(2) of the Act.

 8.        The section 423 submissions were received by the First Respondent and the First Respondent did not bring the said submissions to the attention of the Prosecutor and the Prosecutor was not accorded an opportunity to comment on them.

 9.        Accordingly the Prosecutor was denied procedural fairness in the making of the first respondent’s decision of 25 May 1998.’

10                  There is nothing in the reasons of the Tribunal to suggest that any submissions were made by the Secretary pursuant to s 423 of the Migration Act.  The Tribunal indicated in its reasons that it did not find the applicant’s evidence to be convincing.  It was not satisfied that the applicant was of any interest to the Iranian authorities by reasons of his political activities, as he claimed.

11                  As indicated in my initial reasons, the reason for refusing an order nisi is that the material disclosed no arguable case that would support the granting of relief.  Nothing further has been advanced on behalf of the applicant to counter that view.  It follows, therefore, that the present application should be dismissed.  The Minister did not ask for her costs for the earlier proceeding.  However, she asks for her costs of this application.  I see no reason why that application should be refused. 

Associate:

Dated:              15 March 2005