FEDERAL COURT OF AUSTRALIA S268 of 2003 v Refugee Review Tribunal [2004] FCA 905 S268 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR N1068 OF 2003 S269 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR N1069 OF 2003 EMMETT J 30 APRIL 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA N1068 OF 2003 BETWEEN: S268 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 30 APRIL 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Order 51A r 5(1) of the Federal Court Rules not apply. 2. The application for an order nisi be refused. 3. The adult applicants pay the Minister's costs. 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 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA N1069 OF 2003 BETWEEN: S269 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 30 APRIL 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Order 51A r 5(1) of the Federal Court Rules not apply. 2. The Order nisi be refused. 3. Applicant to pay the Minister's costs. 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 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA N1068 OF 2003 BETWEEN: S268 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT N1069 OF 2003 BETWEEN: S269 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: EMMETT J DATE: 30 APRIL 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Proceeding number 1068 and proceeding number 1069 of 2003 were commenced in the High Court of Australia on 4 June 2003 by the filing of an affidavit and draft order nisi. Each draft order nisi is in identical terms and claims prerogative writ relief on the ground that the Refugee Review Tribunal ('the Tribunal') failed to accord the applicant procedural fairness in the making of a decision, affirming a decision of the Minister of Immigration and Multicultural and Indigenous Affairs ('the Minister') to refuse a protection visa to the applicants. 2 Each proceeding is supported by an affidavit, which does no more than annex the reasons for decision of the Minister's delegate and the Tribunal to an assertion that the applicant became a party to Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601 in the High Court. Otherwise, the affidavits do not disclose any facts that would support the grant of any relief as claimed in the orders nisi. Both matters were remitted to this Court by the High Court. The Minister invites the Court to refuse an order nisi at this stage. Counsel for the applicants asks the Court to give directions for the further preparation of the proceedings and calls on a notice to produce addressed to the Minister. 3 Counsel for the applicants contended that there would be prejudice to the applicants if an order nisi was refused at this stage. The first ground of alleged prejudice is that the Minister may seek to rely on some issue estoppel or res judicata if a further proceeding with the Minister, either in this Court or the Federal Magistrates Court, were to seek similar relief. The solicitor for the Minister has indicated that the Minister would not take such a point, and indeed as a matter of law it is apparent in my view that such a point would be unavailable if the Minister sought to take it. 4 The second ground of prejudice is that the Minister may rely on delay in the commencement of the proceeding. However, that is a problem for the applicant as it currently stands. The applicant would, of course, be able to refer to the fact that it commenced the proceedings in the High Court, although nothing has happened since the commencement of the proceeding in the High Court. Whether or not the Minister is entitled to rely on the absence of any activity on the part of the applicants during that period would be a matter for further argument. 5 However, that matter would be capable of being raised, irrespective of whether these proceedings continue or whether fresh proceedings are commenced. I consider that it would be open to the applicants to commence another proceeding if they are able to establish facts that would justify the grant of relief. Whether or not the Minister would have discretionary answers is a matter to be argued at the appropriate time. I consider that it is appropriate to accede to the Minister's application to refuse an order nisi at this stage. 6 The Minister asks for her costs of the proceeding. It is many months since these applications were commenced in the High Court of Australia. On 27 April the Minister's solicitors wrote to the applicant's solicitors indicating that she proposed to ask for the refusal of orders nisi. In the circumstances it seems to me to be appropriate that the applicants should pay the Minister's costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 12 July 2004 Solicitor for the Applicant: Buttar Caldwell & Co Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 April 2004 Date of Judgment: 30 April 2004