FEDERAL COURT OF AUSTRALIA S322 of 2003 v Refugee Review Tribunal [2005] FCA 1582 APPLICANT S322 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS NSD 2757 OF 2003 EMMETT J 9 NOVEMBER 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2757 OF 2003 BETWEEN: APPLICANT S322 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD 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 2757 OF 2003 BETWEEN: APPLICANT S322 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: EMMETT J DATE: 9 NOVEMBER 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicants are husband and wife and are citizens of the Republic of Korea. On 13 August 1997, the applicants lodged applications for protection visas under the Migration Act 1958 (Cth) ('the Act'). On 20 November 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 22 December 1997, the applicants applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 25 February 1999, the Tribunal affirmed the delegate's decision. 2 The applicant husband commenced a proceeding in the High Court of Australia in both his and his wife's name by filing an affidavit sworn on 18 June 2003, exhibited to which is a draft order nisi. The matter was remitted to this Court pursuant to an order of the High Court following the decision of Muin v The Refugee Review Tribunal [2002] HCA 30. 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: 'i. the Tribunal failed to afford the Applicant/Prosecutor natural justice because the Applicant/Prosecutor had not been given an opportunity (or at least an adequate opportunity) to prepare and present favourable material at hearing or an adequate opportunity to respond to unfavourable material.' No particulars were provided. The applicant's affidavit asserts that '…there are grounds for concluding that not all of the part B documents were sent by the [Minister] to the [Tribunal] and not all of the part B documents were considered by the [Tribunal] for the purposes of deciding my application.' 5 However, the Tribunal makes specific reference to the documents included in Part B of the delegate's decision. 6 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 six (6) 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