FEDERAL COURT OF AUSTRALIA S132, in the matter of an application for a Writ of Prohibition and a Writ of Certiorari against Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1708 S132 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND L. HARDY MEMBER OF THE REFUGEE REVIEW TRIBUNAL N1467 of 2004 MADGWICK J 2 NOVEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1467 of 2004 IN THE MATTER OF: AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND INJUNCTIONS BETWEEN: S132 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT L. HARDY MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: MADGWICK J DATE OF ORDER: 2 NOVEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed with costs, assessed in the sum of $3,000. 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 N1467 of 2004 IN THE MATTER OF: AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND INJUNCTIONS BETWEEN: S132 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT L. HARDY MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: MADGWICK J DATE: 2 NOVEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT HIS HONOUR: 1 This matter comes before the Court by way of an order of remitter made by Heydon J in the High Court of Australia on 23 August 2004. In the High Court, the applicant had been seeking the issue of an order nisi. The draft order nisi contemplated that a writ of certiorari should issue to remove into the High Court, there to be quashed, a decision adverse to the applicant made on 13 November 2001 by the Refugee Review Tribunal ('the Tribunal'). The order nisi also contemplated the issue of a writ of mandamus directing the Tribunal to rehear and determine the applicant's case according to law. 2 The grounds alleged various jurisdictional errors by the Tribunal and are couched in terms of great generality. The matter has a long history which one ought to be able to call remarkable, but it is perhaps not so remarkable as it should be. 3 The applicant came to Australia on 12 January 1999. Two days later he lodged an application for a protection visa and on 15 March 1999 a delegate of the respondent Minister refused to grant such a visa. The applicant promptly sought review of that decision by the Tribunal. Matters were considerably delayed in the Tribunal, a rehearing being necessitated by the resignation of the Tribunal member who first set out to hear the applicant's case. Ultimately, the Tribunal affirmed the respondent delegate's decision on 13 November 2001. 4 The applicant then applied to this Court for judicial review of the Tribunal's decision. The grounds of application to this Court were broad ranging but under the then current view of the effect of s 474 of the Migration Act 1958 (Cth) ('the Act'), Allsop J dealt with the matter. The only basis for review was whether the Tribunal had reached its decision in a bona fide way, within the meaning of R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 and NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 298; [2002] FCAFC 228. 5 Justice Allsop, however, considered questions of actual bias and denial of natural justice, in particular on account of a supposed inability by the applicant to communicate adequately with the Tribunal and the non-acceptance of some of his documentation by the Tribunal. His Honour read the transcript of matters before the Tribunal, listened to a tape recording of the hearing and concluded that it could not be said that there was in law no hearing nor that the Tribunal had not acted bona fide in conducting the hearing, notwithstanding some alleged degree of difficulty with interpretation. His Honour considered many of the applicant's complaints to be simply matters of fact, which could not be agitated in the Court. His Honour dismissed the application with costs on 26 August 2002. 6 The applicant appealed from the judgment of Allsop J. However, the appeal was dismissed by a Full Court on 5 March 2003 for his non-appearance. Eight days later, on 13 March 2003, the applicant sought to undo that dismissal. For reasons which included that '… it is apparent to the Court that the appellant is unable to describe any viable basis for impugning the reasons for judgment of the primary judge', the Court dismissed the application to set aside its earlier order for dismissal and the applicant's appeal. 7 The applicant then, on 15 April 2003, sought special leave to appeal to the High Court of Australia. On 12 March 2004, that application was dismissed. The Court said: 'We find no error of principle disclosed [in the decision of the Full Court or the Federal Court] and no prospects of success in any appeal to this Court.' 8 Undaunted, the applicant on 8 April 2004 filed his application for an order nisi. An accompanying affidavit complained of a breach of the rules of natural justice, without giving any particulars, and complained of factual and evidentiary errors allegedly made by the Tribunal as well as rehearsing his claim to fear persecution if returned to Bangladesh, his country of nationality. Another document not explaining the delays but showing he was aware of the need to explain them, adds nothing relevantly to the matter. 9 In my opinion, no arguable case of jurisdictional error is shown by the Tribunal. Moreover, in view of the long and unsatisfactory delays, I think that no arguable case for the Court exercising its discretion in relation to matters so old has been shown. Finally, considerations of Anshun estoppel would dictate beyond the possibility of any reasonable argument the denial of any relief now to the applicant. It follows that the application for an order nisi should be dismissed. 10 The application is dismissed with costs, which I assess in the sum of $3,000. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 23 December 2004 Solicitor for the Applicant: The applicant appeared in person Solicitor for the Respondent: Clayton Utz Date of Hearing: 2 November 2004 Date of Judgment: 2 November 2004