FEDERAL COURT OF AUSTRALIA S1758 of 2003 v Refugee Review Tribunal [2005] FCA 1580 APPLICANT S1758 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR NSD 2388 OF 2003 EMMETT J 9 NOVEMBER 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2388 OF 2003 BETWEEN: APPLICANT S1758 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 to the proceeding. 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 2388 OF 2003 BETWEEN: APPLICANT S1758 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 India. On 21 August 1996, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 27 June 1997, a delegate of the Minister for Immigration and Multicultural Affairs ('the Minister') refused the application. On 28 July 1997, the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 16 February 2000, the Tribunal affirmed the delegate's decision. 2 The applicant's solicitors, who have since ceased acting for the applicant, commenced a proceeding in the High Court of Australia by filing a draft order nisi on 30 May 2003, together with an affidavit sworn on the same day. The affidavit recounts that the applicant was a represented party in the proceeding brought in the High Court of Australia no. S89 of 1999, Muin v Refugee Review Tribunal [2002] HCA 30. The matter was remitted to this Court pursuant to an order of the High Court following that decision. 3 On 12 November 2004, the District Registrar of the Federal Court wrote to the applicant inviting him to make written submissions on the question of whether there is an arguable case for the grant of the relief claimed by the draft order nisi in the material before the Court. There has been no response to that letter. In the circumstances, it is appropriate that the application for an Order nisi be dealt with without any oral hearing or argument and for Order 51A rule 5(1) of the Federal Court Rules to be dispensed with (see Applicant s195 of 2003 v Refugee Review Tribunal [2005] FCA 1571). 4 The grounds upon which relief was claimed in the draft order nisi were as follows: '1. The decision of the First Respondent of 16 February 2000 was beyond its jurisdiction. 2. There was a denial of Procedural Fairness in that the First Respondent took into account matters adverse to the Prosecutor without notice to the Prosecutor. 3. The First Respondent breached the rules of the Natural Justice in connection with the making of the Decision. 4. The procedure that was required by law to be observed in order to make this decision was not observed. 5. The making of the decision was an improper exercise of the powers conferred by the enactment in pursuance of which it was purported to be made. 6. Proceedings in this matter be stayed pending the determination of this Order Nisi or until further ordered.' No particulars were provided. The applicant's affidavit merely adds that the Tribunal did not bring its consideration of the Minister's submissions to the applicant's attention as required by s423 of the Act. However, the affidavit does not develop this argument further. The reasons of the Tribunal do not make reference to any written submissions provided by the Minister. The Tribunal Member states that he reached the conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason because of problems he had with the applicant's credibility, which were outlined in the body of the reasons. 5 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. I certify that the preceding five (5) 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