FEDERAL COURT OF AUSTRALIA Applicant M57 of 2000 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 287 MIGRATION – remittal from the High Court – application for order nisi lacking merit – no question of principle. Migration Act 1958 (Cth) ss417, 420, 424 Re Australian Nursing Federation; ex parte State of Victoria (1993) 112 ALR 177, referred to. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [2001] HCA 30, referred to. APPLICANT M57 OF 2000 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and B F KISSANE V920 OF 2003 MARSHALL J 18 MARCH 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V920 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT M57 OF 2000 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT B F KISSANE SECOND RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 18 MARCH 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for an order nisi be refused. 2. The applicant pay the respondent's costs of the application, including the costs incurred before the High Court of Australia. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V920 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT M57 OF 2000 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT B F KISSANE SECOND RESPONDENT JUDGE: MARSHALL J DATE: 18 MARCH 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant is a citizen of Sri Lanka. He is of Tamil ethnicity. He is Muslim by religion. The applicant entered Australia on 14 March 1997. On 11 April 1999 he applied to the first respondent for a protection visa. On 22 May 1999, a delegate of the first respondent refused the application. The applicant sought a review of that decision in the Refugee Review Tribunal ("the RRT"), on 6 June 1999. 2 On 18 June 1999, the applicant gave oral evidence at a hearing before the RRT, constituted by the second respondent. On 5 August 1999, in a decision published on 20 August 1999, the RRT affirmed the delegate's decision not to grant the applicant a protection visa. 3 Before the RRT, the applicant submitted that he had a well-founded fear of persecution on account of his membership of the United National Party ("the UNP") if returned to Sri Lanka. For the purpose of considering that claim the RRT took into account country information dealing with that issue. 4 Due to "financial reasons" the applicant was unable to seek judicial review of the RRT's decision. However, on 16 September 1999, he required the first respondent to exercise his discretion under s417 of the Migration Act 1958 (Cth) ("the Act") to make a more favourable decision to him in substitution for the decision of the RRT. By letter dated 12 May 2000, the first respondent refused the applicant's s417 request. 5 On 9 June 2000, in the High Court of Australia, the applicant sought an order nisi challenging the decision of the RRT and seeking an extension of time within which to apply for writs of certiorari and mandamus. Additionally, a writ of prohibition was sought: "…directed to the first Respondent to prohibit him acting upon or giving effect to the decision of the second Respondent…." 6 On 28 November 2002, Hayne J ordered, inter alia, that the application for an order nisi be remitted to the Federal Court. 7 When the matter came on for hearing this morning the Court ordered pursuant to O51A r5 (2) of the Rules of Court that it would first consider whether an order nisi should be issued, and that it would only go beyond that topic if it considered that an order nisi should issue. An order nisi will only be obtained if the applicant can demonstrate an arguable case that the RRT "has gone beyond its jurisdiction"; see Re Australian Nursing Federation; ex parte State of Victoria (1993) 112 ALR 177 at 183, per McHugh J. 8 At the outset of his submissions, counsel for the applicant, Mr Fernandez, acknowledged that "the amended application" filed on behalf of the applicant was intended to be treated as a draft amended order nisi. Mr Fernandez then abandoned any reliance on "the amended application". He formulated a new draft amended order nisi with one ground only. 9 That ground alleged that the RRT committed a jurisdictional error by relying on irrelevant material in a way that affected the exercise of its power: Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 at [82]. 10 Mr Fernandez submitted that the RRT relied on the country information without considering countervailing issues raised by the applicant's adviser. That submission only needs to be stated to observe that it cannot be thereby demonstrated that the RRT took into account irrelevant material because the country information was relevant to an issue before it. See [3] above. 11 The applicant's real complaint is about the weight given by the RRT to the country information as part of the RRT's fact-finding exercise. The RRT relied on the country information to test the applicant's claim that he had a well-founded fear of persecution on account of his membership of the UNP. The RRT considered that information in coming to the view that that membership would not cause the applicant harm if returned to Sri Lanka. The country information was relevant to the RRT's consideration of that claim. 12 The Court will order as follows: 1. The application for an order nisi be refused. 2. The applicant pay the respondent's costs of the application, including the costs incurred before the High Court of Australia. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 18 March 2004 Counsel for the Applicant: Mr T Fernandez Solicitor for the Applicant: Mano & Associates Counsel for the Respondent: Mr C Fairfield Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 18 March 2004 Date of Judgment: 18 March 2004