FEDERAL COURT OF AUSTRALIA S195 of 2003 v Refugee Review Tribunal [2005] FCA 1571 APPLICANT S195 OF 2003 v REFUGEE REVIEW TRIBUNAL NSD 971 OF 2003 EMMETT J 9 NOVEMBER 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 971 OF 2003 BETWEEN: APPLICANT S195 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 9 NOVEMBER 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Order 51A rule 5(1) not apply. 2. The application for orders nisi be refused. 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 NSD 971 OF 2003 BETWEEN: APPLICANT S195 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: EMMETT J DATE: 9 NOVEMBER 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a citizen of Bangladesh. On 28 April 1995, the applicant applied to the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') for a protection visa under the Migration Act 1958 (Cth) ('the Act'). The application was refused on 23 October 1995 and on 24 November 1995, the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the decision. By its decision of 25 March 1997 ('the Decision'), the Tribunal affirmed the Minister's decision not to grant a protection visa to the applicant. 2 On 29 May 2003, the applicant commenced a proceeding in the High Court of Australia by filing a draft Order nisi and an affidavit affirmed on 19 May 2003. By doing so, the applicant applied for an order by the High Court that would call upon the respondents to show cause why writs of mandamus, prohibition and certiorari should not issue to them in respect of the Decision. 3 In his affidavit, the applicant recounted that he was a person named in the schedule to the statement of claim in proceeding brought in the High Court of Australia no. S89 of 1999, Lie v Refugee Review Tribunal [2002] HCA 30 ('the Class Action'). 4 The grounds upon which relief was claimed in the draft order nisi were as follows: "a) the respective member of the first respondent did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulation to be observed in connection with the making of the decision were not observed. b) the first respondent's decision was affected by an 'error of law' and 'jurisdictional error' and lack of procedural fairness c) there was no evident or other material to justify in making of the decision. d) the appellant was denied natural justice in being denied a reasonable opportunity to be heard, in an unbiased environment, on his application before the second respondent. e) There has been a constructive failure of jurisdiction by the second respondent's agent Keith Dixon as in the decision of 23 October 1995, failed to address the correct legal question committed to her by not applying herself to all the issues she was required to consider in determining the matter before her. f) There was a faire of the second respondent's agent to exercise his jurisdiction in the decision of 23 October 1995 because she did not reach a state of satisfaction bases upon a correct understanding of the law on which she acts. g) The decision of the second respondent's agent 23 October 1995 was made in breach of rules of natural justice." 5 No particulars of the grounds were provided in the affidavit or in the draft order nisi. The affidavit asserts grounds of complaint in respect of the decision of the Tribunal as follows: 6. On 8 August 2002 the court has decided [the Class Action] on our favour as the tribunal failed to accord plaintiff procedural fairness. In their invitation letter, for hearing, the tribunal has mentioned that they have looked at all the material relating to my P.V application to the Onshore Refugee, which I now think was not true. I believe the first defendant was seriously influenced by prejudice otherwise the decision from them would have been different. 7. … 8. The second defendant in fact did not send any information and documents, in relation to my claim, mentioned in Part B (Evidence Before Me) to the first defendant any time before or during making decision on my claim on 23/10/1995. 9. I claim that there was a failure to accord procedural fairness, insofar as it is based upon the material so far referred to, involves a factual issue. Prior to the decision from the first respondent I thought that the first respondent had the Part B documents and, in consequence, did not take steps to bring to its attention those parts of the documents or other similar material which favored my claim. 10. I was misled, by the first defendant, into thinking that it was unnecessary for me to draw the information in the Part B documents that favored my appeal application to the attention of the Tribunal and that, had I not been misled in that regard, I would have taken steps to correct that situation." 6 The applicant is not represented by any legal adviser and the draft order nisi and affidavit were filed in the High Court by the applicant personally. The proceeding commenced in the High Court was subsequently remitted to the Federal Court of Australia. At the time of the remitter of the proceeding, the High Court also remitted over 1,000 other proceedings commenced by persons who had nominally been parties to the Class Action. In those other proceedings, similar relief was claimed in respect of other decisions of the Tribunal refusing the grant of protection visas. 7 The information presently available to the Court indicates that the vast majority of the persons whose application were remitted with this application have either very limited or no knowledge of English. Accordingly, as a matter of practice, an oral hearing of the applications for orders nisi would require the provision of an interpreter at public expense. On the other hand, there appears to be no reason why the question of the grant of orders as contemplated by the draft order nisi could not be dealt with by written submissions. Dealing with an application such as this on the basis of written submissions has the considerable advantage of saving costs and expenses that, if the application is ultimately unsuccessful, would be borne by the applicant. In the circumstances, it is appropriate that the application for an order nisi be dealt with without any oral hearing or argument (see Milat v The Queen [2004] HCA 17). 8 Accordingly, on 12 November 2004, the New South Wales District Registrar wrote to the applicant. Enclosed with the letter was a sheet containing the following message in 12 languages: 'Interpreting and translating services The Australian Government's interpreting service can supply telephone or on site interpreting. It is available 24 hours a day, 7 days a week, and is accessible from anywhere in Australia for the cost of a local call. 131450 Translating web pages and short sentences The following websites translate free short sentences of your choice and web pages into certain languages: http://www.freetranslation.com/ http://babel.altavista.com/translate.dyn http://www.google.com/language_tools?hl=en' The letter relevantly said as follows: 'As a result of an order by the High Court, your application was transferred to the Federal Court of Australia. The Federal Court must consider whether there is an arguable case for the Court to make an Order nisi. If the Court decides that there is no arguable case, your application for an Order nisi will be refused. The Court proposes to consider whether there is an arguable case on the basis of the written material that you have given to the Court and without any oral hearing. The lawyer for the Minister will not be giving any information to the Court. Before the Court makes a decision you may make such written submissions in the English language as you wish o the question of whether the Court should make an Order nisi. Any submissions must be lodged with the Registry of the Court no later than 10 December 2004.' The letter was addressed to the applicant at the address shown in the draft order nisi. There has been no response to that letter. 9 On an application such as this, for orders requiring the respondents to show cause why final relief should not be granted, the purpose of any affidavit in support is to provide material showing that there is at least an arguable case for the grant of the final relief claimed. However, the material must be more than mere pleading or assertion of the right to such relief. The material must contain some evidence of facts that would support the grant of the relief claimed. In the context of the relief claimed by the present applicant, there should be material that would show that it is at least arguable that the Tribunal fell into jurisdictional error in making the Decision, such that orders would be made to quash the Decision and to restrain the Minister from acting on the Decision. The material presently before the Court does not disclose an arguable case, in that sense. 10 The refusal of the orders presently sought would not constitute a final determination of any question between the applicant and the respondents named in the draft order nisi. Accordingly, the refusal of such orders would not give rise to any issue estoppel or res judicata as between the applicant and the respondents. If the applicant wished to pursue any claim for relief in respect of the Decision, the appropriate course would be to commence a fresh proceeding in the Federal Magistrates Court, supported by admissible evidence demonstrating an entitlement to relief. 11 Order 51A rule 5(1) of the Federal Court Rules provides that, where an application for an order nisi is remitted by the High Court to the Federal Court, the Federal Court will, at the same time, hear the parties on whether, if the Order nisi were made, it should be made absolute. However, under rule 5(2) the Court may, in a particular case, order that rule 5(1) does not apply. It is appropriate to make an order under rule 5(2) in this case and Orders to show cause should be refused. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 9 November 2005 Date of Judgment: 9 November 2005