FEDERAL COURT OF AUSTRALIA A52 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 184 A52 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR NSD 2359 of 2005 GRAHAM J 13 FEBRUARY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2359 OF 2005 BETWEEN: A52 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: GRAHAM J DATE OF ORDER: 13 FEBRUARY 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be added as a Second Respondent. 2. The time for filing the Applicant's application for leave to appeal be extended up to and including 29 November 2005. 3. The application for leave to appeal be dismissed. 4. The Applicant pay the First Respondent's costs fixed in the agreed sum of $950. 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 2359 OF 2005 BETWEEN: A52 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: GRAHAM J DATE: 13 FEBRUARY 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The application presently before the Court is an application filed 29 November 2005 by the Applicant, who is known for the purposes of these proceedings, as Applicant A52 of 2003, seeking leave to appeal from the judgment of Emmett J given on 9 November 2005, on an application for issue of an order nisi for constitutional writ relief in respect of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 6 December 2002. 2 The Applicant was born, so it would seem, in India, on 13 January 1960. Before the Tribunal, he gave evidence of what has been referred to as a terrorist incident in 1986 in the form of a bus hijacking. The Applicant moved to live in New Zealand in 1994 and lived there until late November 1998. He then returned to India where he lived and worked until he returned to New Zealand in December 1999. 3 He remained in New Zealand until he came to Australia in April 2002. On 11 April 2002, or thereabouts, the Applicant applied for a Protection Visa. That application was refused by a delegate of the Minister on 27 June 2002. Thereupon, the Applicant applied for a review of that decision by the Tribunal. A hearing took place on 26 November 2002 and, as mentioned previously, the Tribunal affirmed the delegate's decision not to grant the Applicant a Protection Visa on 6 December 2002. 4 Thereafter, an application was filed, so it would seem, in the High Court of Australia on 20 June 2003, by the Applicant's then solicitor seeking the grant of an order nisi. The grounds upon which the constitutional writ relief were sought were specified in the draft order nisi as follows: '(a) a breach of the rules of natural justice occurred in connection with the making of the Decision; (b) the Decision involved an error of law, whether or not the error appears on the record of the Decision; (c) procedures that were required by law to be observed in connection with the making of the Decision were not observed; (d) the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (e) that there was no evidence or other material to justify the making of the Decision; (f) the Decision was otherwise contrary to law.' 5 The application for the grant of an order nisi was supported by an affidavit of the Applicant's then solicitor sworn, so it would seem, on 31 January 2003. 6 In his reasons for judgment Emmett J referred to the absence of any affidavit providing material demonstrating at least an arguable case for the grant of final relief. His Honour observed that the material must be more than a 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. 7 His Honour observed that in the context of the relief claimed by the present Applicant, there should be material that would show that it was at least arguable that the Tribunal fell into jurisdictional error in making its decision, such that orders would be made to quash the decision and to restrain the Minister from acting on the decision. His Honour observed that the material presently before the Court did not disclose an arguable case in that sense. 8 The Applicant has failed to file a draft notice of appeal as part of his application for leave to appeal. However, his current solicitor, Mr Jayawardena, has indicated that if leave to appeal was granted, his client would seek to rely upon the same grounds as were specified in the draft order nisi to which I have referred. Mr Jayawardena has submitted that the test to be applied in determining whether or not leave to appeal should be granted is whether there was an arguable case that the Tribunal fell into error. With respect, that is not the test on an application for leave to appeal. 9 For a grant of leave to appeal to be made, it is necessary for the Applicant to establish that the decision of Emmett J was attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave to appeal were refused. 10 I would observe that the application for leave to appeal was filed out of time in accordance with Order 52 Rule 10(2A)(b) of the Federal Court Rules. Ms Rayment, a solicitor, who appears for the Respondent Minister, has indicated that whilst the Minister formally opposes an extension of time within which to bring the present application, she would understand that the Court may extend the time in the circumstances of this case, where, when the application was originally filed, the Applicant was unrepresented. 11 In support of the application for leave to appeal, the Applicant filed an affidavit sworn 24 November 2005, which does nothing other than restate the case that he sought to make before the Tribunal. He has also filed an affidavit sworn 2 January 2006, which was filed on 6 February, which again retells the story he presented to the Tribunal. 12 Mr Jayawardena, when addressing the Court on the application for leave, readily acknowledged that Emmett J 'made the right decision on the papers' when he considered the application for an order nisi, there having been no material provided which indicated any error on the part of the Tribunal along the lines foreshadowed in the specified grounds. 13 In the circumstances, it is extremely difficult to understand how it can be said that the decision of Emmett J was attended with sufficient doubt to warrant its reconsideration. Ms Rayment submitted that no error in Emmett J's judgment had been disclosed and that was the end of the matter. 14 In my opinion, Ms Rayment's submission is correct and it follows that leave to appeal should not be granted. I would also observe, without going into any detail, that the Tribunal was not satisfied that the Applicant's fear of harm from one identified as LS and/or his associates, was either well-founded or for a Convention reason. On my reading of the Tribunal's findings and reasons, no jurisdictional error is apparent. 15 What, in effect, the Applicant is seeking is a second chance to have a hearing before the Tribunal and a further determination of his case on the merits. Given that Emmett J's decision was not attended with sufficient doubt to warrant its reconsideration nothing more need be said about the matter. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham . Associate: Dated: 6 March 2006 Solicitor for the Applicant: C Jayawardena Solicitor for the Respondent: B Rayment of Sparke Helmore Lawyers Date of Hearing: 13 February 2006 Date of Judgment: 13 February 2006