S253 of 2003 v Refugee Review Tribunal [2004] FCA 907

FEDERAL COURT OF AUSTRALIA

S253 of 2003 v Refugee Review Tribunal [2004] FCA 907 S253 OF 2003 v REFUGEE REVIEW TRIBUNAL N1057 OF 2003 EMMETT J 30 APRIL 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1057 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: APPLICANTS S253 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 applicants pay the Minister's costs of the proceeding to date. 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 N1057 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: S253 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 On 30 May 2003 the applicants filed a draft order nisi and an affidavit in the High Court of Australia seeking constitutional writ relief in respect of a decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') to refuse protection visas to the applicants. The matter was subsequently remitted to this Court by the High Court. The affidavit in support of the relief claimed in the draft order nisi takes issue with the merits of the decision of the Tribunal. 2 For example, the affidavit states that the applicants vehemently object to the manner in which the Tribunal made its decision when it found that the applicants' village, the adjacent areas, were attacked by the LTTE. The affidavit refers to what are described as serious misdirections by the Tribunal in its findings. The grounds stated in the draft order nisi are that the Tribunal exceeded its jurisdiction, that it erred in law and had bad faith towards the applicants. 3 There was no evidence at all to support those grounds in the affidavit. In the circumstances I consider that it is appropriate to refuse an order nisi. It would be open to the applicants, if they wish, to commence some other proceeding, supported by appropriate evidence, seeking prerogative writ relief in respect of the decision of the Tribunal if they are so advised.