Applicant S335 of 2003 v Refugee Review Tribunal [2005] FCA 1439

BACKGROUND 2 On 31 March 1998 the Refugee Review Tribunal affirmed a decision of a delegate of the respondent Minister, not to grant a protection visa to the applicant and to other members of his family. 3 The Applicant applied in the High Court of Australia for a constitutional writ in respect that decision and the matter was remitted to this Court. It was that matter which was the subject of his Honour's orders. 4 The primary judge dealt with the matter on the papers and had before him written submissions from the parties. The applicant's written submissions, apart from making several statements of fact, appears to have complained of only one irregularity touching the procedure before the Tribunal. This was that he was denied procedural fairness and natural justice by not being given a fair opportunity to respond to country information on which the Tribunal relied (para 13 of applicant's submissions dated 9 December 2004). 5 However, the Tribunal's reasons for decision stated (at 6-7): The Tribunal presented a range of country information to the applicants, including material included in this decision and a full copy of the United States Department of State Report on Human Rights in Fiji for 1997. The Tribunal gave the applicant's adviser until Friday 27 March to submit any further comments on that information. At the date of decision no further information had been received. The Tribunal's decision was dated 31 March 1998. 6 The primary judge delivered short reasons for his judgment. They stated: '1. I have considered the papers filed in this case including the applicant's submissions. Having considered the decision of the Refugee Review Tribunal I do not think that any of the grounds referred to by the applicant is fairly arguable in this case. Accordingly, it would be inappropriate to grant an order nisi. 2. I propose to order that subrule (1) of Order 51A rule 5 not apply to this case and that the application for an order nisi be refused.' 7 The formal orders made by his Honour were that: '1. Subrule (1) of Order 51A rule 5 not apply to this application. 2. The application for an order nisi be refused.' Order 51A rule 5 of the Federal Court rules provides as follows: '1. Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge: (a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and (b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute. 2. In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.' 8 The fact that his Honour ordered that subrule (1) of order 51A rule 5 not apply makes it clear that he was not hearing the parties on the question whether, if an order nisi were made, it should be made absolute. Rather, he was dealing only with the interlocutory question of whether an order nisi should be made. 9 Leave to appeal from that interlocutory decision is, of course, required.