S263 of 2003 v Refugee Review Tribunal [2005] FCA 1676

FEDERAL COURT OF AUSTRALIA

S263 of 2003 v Refugee Review Tribunal [2005] FCA 1676 APPLICANT S263 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS NSD2489 OF 2003 EMMETT J 23 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2489 OF 2005

BETWEEN: APPLICANT S263 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: 23 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 NSD2489 OF 2003

BETWEEN: APPLICANT S263 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: 23 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Sri Lanka. On 30 June 1997, the applicant lodged an application for a Protection (Class AZ) Visa under the Migration Act 1958 (Cth) ('the Act'). On 11 September 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 14 October 1997, the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 27 October 1999, the Tribunal affirmed the decision, and the applicant sought review in the Federal Court. On 19 June 2000, the Federal Court ordered, by consent, that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for reconsideration according to law. On 27 November 2000, the Tribunal affirmed the delegate's decision. 2 The applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi on 2 June 2003, together with an affidavit affirmed on 2 June 2003. 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. For the reasons set out in Applicant S195 v Refugee Review Tribunal [2005] FCA 1571, it is appropriate for this matter to be dealt with on the papers and for Order 51A rule 5(1) of the Federal Court Rules to be dispensed with. 4 The ground upon which relief was claimed in the draft order nisi, filed 2 June 2003, was 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. 5 The applicant also asserts, in his affidavit sworn 2 June 2003, the following: '8. In or about 3 August 2000 I received from the First Respondent a letter dated 3 August 2000 ("the letter"). The letter commenced: -