Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375

FEDERAL COURT OF AUSTRALIA

Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375 APPLICANT S214 OF 2003 v REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1015 OF 2003 EDMONDS J 7 APRIL 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1015 OF 2003

BETWEEN: APPLICANT S214 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: EDMONDS J

DATE OF ORDER: 7 APRIL 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs.

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 1015 OF 2003

BETWEEN: APPLICANT S 214 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: EDMONDS J

DATE: 7 APRIL 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT

Edmonds J:

Introduction 1 This is an application for an order nisi which was filed in the High Court of Australia on 23 May 2003 and subsequently remitted to this Court. At the outset of the hearing, and with the concurrence of counsel, I reconstituted the proceedings by removing the Secretary of the Department of Immigration and Multicultural Affairs as second respondent and the Commonwealth of Australia as third respondent and by joining in their place the Minister for Immigration and Multicultural and Indigenous affairs ('the Minister'). 2 Counsel for the applicant, Mr Jackson, moved on an amended application which was attached to his written submissions dated 23 December 2004. In support of that application he read an affidavit of the applicant's sister affirmed 20 December 2004 and two affidavits of the applicant affirmed 21 October 2005 and 6 December 2005. 3 Counsel for the Minister, Mr Potts, relied on the content of a book of relevant documents filed on 17 October 2005. 4 At an early stage of the hearing Mr Jackson indicated that the only issue raised by the amended application concerned an alleged denial of procedural fairness. That allegation is articulated in Ground 1 of the amended application as follows: 'The First Respondent failed to accord procedural fairness, in failing to warn the Applicant that is was considering finding that the Applicant's sister was a "party to an attempt to deceive the Tribunal" in swearing that she remembered a photo of her father in the newspaper, and generally holding that her sworn statement, which corroborated key aspects of the Applicant's case, was "an attempt to assist her brother's application for a protection visa", and its corroborative contents to be disbelieved, because "the Applicant did not seek that the Tribunal take evidence [from her]"…' 5 To put this allegation into context one must turn briefly to the events surrounding the applicant's application for a protection visa and the proceedings before the Refugee Review Tribunal ('the Tribunal').