FEDERAL COURT OF AUSTRALIA

S1689 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 198

MIGRATION – no point of principle

S1689 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1864 OF 2004

MOORE J

17 FEBRUARY 2005

SYDNEY

THE COURT ORDERS THAT:

1.      That the application filed on 14 December 2004 be dismissed.

2.      That the applicant pay the costs of the respondent.

3.      Costs be fixed at $650.

THE COURT DIRECTS THAT:

4.      That no further application be permitted to be filed challenging the decision of the Refugee Review Tribunal handed down on 1 June 2000 without leave of the court.

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

REASONS FOR JUDGMENT

(Ex Tempore – Revised)

1                     This is an application for an extension of time to seek leave to appeal against orders of Emmett J made 20 February 2004 refusing an application for an order nisi and ordering that O 51A r 5(1) of the Federal Court Rules not apply.

2                     The applicant, who is a citizen of Bangladesh, arrived in Australia on 4 May 1998.  He lodged an application for a protection visa (class AZ) with the Department of Immigration and Multicultural Affairs on 16 June 1998.  On 30 June 1998 a delegate of the Minister for Immigration and Multicultural and Affairs ("the Minister") refused to grant the visa.  On 29 July 1998 the applicant applied for review of that decision to the Refugee Review Tribunal ("the Tribunal").  The Tribunal affirmed the decision of the delegate not to grant the visa on 1 June 2000.

Procedural History

3                     In 1999 proceedings in the matter of Nancy Lie v Refugee Review Tribunal & Ors, S89 of 1999were commenced in the High Court.  The applicant was joined to these proceedings as a member of the class Ms Lie sought to represent.  On 8 August the High Court handed down its judgment in that matter: Muin v Refugee Review Tribunal [2002] HCA 30 (also dealing with the matter of Muin v the Refugee Review Tribunal & Ors, S36 of 1999).  On 25 November 2002 the High Court granted leave to any person named in the Schedule to the statement of claim in that matter to file an application in the High Court seeking an order nisi in relation to the decision of Tribunal concerning that person.

4                     On 29 May 2003 the applicant filed a draft order nisi in the High Court along with a supporting affidavit.  The only ground in the draft order nisi on which the constitutional writs were sought was that the Tribunal had failed to accord the applicant procedural fairness.  His application for an order nisi was one of approximately 650 filed that day and remitted instanter to the Federal Court pursuant to an order of Gaudron J of 25 November 2002. 

The judgment below

5                     Emmett J delivered ex tempore reasons on 20 February 2004 and made the orders referred to at [1].  It was one of a number of matters dealt with in his Honour's lead judgment Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289.  In that matter, Emmett J explained that the applications were virtually identical in terms, consisting of an affidavit by a solicitor, Mr Joel, annexing copies of the reasons of the delegate and the Tribunal and a draft order nisi.  His Honour noted that the ground for relief in each case was simply "The first respondent failed to accord the prosecutor procedural fairness" and the form of the order was that the Tribunal and the Minister show cause why, in respect of the Tribunal's decision, prerogative relief should not be granted and an order that there be an enlargement of time to permit the relevant applicant to commence proceedings for that relief.  No further particulars were given in any of the affidavits or draft orders nisi. 

6                     His Honour discussed the function of an affidavit supporting an application for an order nisi (at [20]–[23]):

The affidavit is the document upon which a Justice of the High Court would determine whether the applicant had established that there were arguable grounds for the granting of an order nisi.  To obtain an order nisi, an applicant must show that he or she has at least an arguable case that the Tribunal, whose proceedings are called into question, has erred in a manner that would justify final relief by way of an order absolute.  Therefore, the affidavit should set out concisely the factual background to the proceedings, the issues that arose between the parties before the Tribunal, the grounds of complaint in respect of the decision and the reasons why those grounds are sufficient to justify the granting of an order nisi. 

Under O 55 there are time limits within which proceedings are to be brought.  In the case of a claim for a writ of certiorari, the limit is six months from the making of a decision.  In the case of a claim for a writ of mandamus, the period is two months from the date of the refusal to hear the matter.

It is patent that the material filed in this proceeding and each of the other similar proceedings does not demonstrate an arguable case for the grant of any relief.  There is a bald assertion that the Tribunal failed to accord the applicant procedural fairness, coupled with the reference to either the Lie or the Muin proceeding in which generalised assertions are made, but in respect of which no particulars are furnished.  It is fair to say that counsel for the applicants in all of the proceedings currently before the Court, did not contend that this Court would entertain an application for an order nisi on the basis of the material filed in any of the proceedings. 

The order made by Gaudron J, to which I have referred, clearly contemplated the making of an application for an extension of time within which to file an application for an order nisi, supported by an affidavit that showed at least an arguable case.  Indeed, as I have said, an extension was obtained so that the applicant would be in a position to file an application for an order nisi that showed an arguable case.  In fact, none of the applications as lodged, exhibits an arguable case. 

7                     His Honour found there would be no prejudice to applicant S1174 by the refusal of an order nisi.  His Honour concluded that an order refusing an order nisi would not found any bar or estoppel against appropriate relief if grounds were established.  His Honour was also assured by the Minister that she would not make any submission in any future proceeding that there was no satisfactory explanation for the applicant's delay from the time when the applicant was joined as a representative party in the High Court to the time of the refusal of the order nisi.  The order nisi was refused.  On the basis of the similarity of the affidavits and orders nisi filed in the other proceedings before the Court to those of the applicant S1174, his Honour made the same orders in relation to the other proceedings before him, of which this was one.

The application for extension of time for leave to appeal

8                     On 14 December 2004 the applicant filed an application for extension of time to file and serve a notice of appeal, accompanied by a supporting affidavit and draft notice of appeal.  In his affidavit he states that his lateness is because he did not know the appeal procedure.  His affidavit is in handwriting and is difficult to decipher.  The draft notice of appeal sets out 7 "grounds" of appeal:

-                The Single judge of the Federal Court in his Honors Judgment delivered on the 20 February 2004 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39B of the Judiciary Act 1903.

-                The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).  Catchwords - …

-                The Honorable trial judge erred in considering the real state of affairs of the applicant, the applicant feared harm.  And also the present ruling government fail to protect politicians life, which is a worldwide concern today.  Honorable Trial judge did not take it into consideration.

-                S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia.  Honorable trial judge did not consider this in favour of me.

-                The applicant will face persecution if he returns to his country of origin as there are significant level of violation of human rights, this was not considered by honourable judge.

-                Recent High Court judgement: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003)

-                Recent Federal Court of Australia judgement: SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 (14 February 2003)

9                     The applicant did not appear today.  The solicitor representing the Minister asked that I dismiss the application for want of appearance.  In the circumstances, I am prepared to make that order.  I also order costs fixed in the sum of $650, and direct that no further application be accepted other than with the leave of the court.

Associate:

Dated:              9 March 2005