S1555 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant has filed an application seeking leave to appeal and an extension of time to file a notice of appeal from a judgment of a Judge of this Court. His Honour's reasons are to be found at [2004] FCA 289.

Background 2 The applicant is a citizen of Pakistan who arrived in Australia on 19 April 1989. On 5 August 1994, he lodged an application for the grant of refugee status with the Department of Immigration and Multicultural Affairs. On 16 October 1996, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the applicant a protection visa and on 24 October 1996 the applicant sought review of that decision in the Refugee Review Tribunal ('Tribunal'). 3 It is sufficient to note that the applicant, a Mohajir, claimed to fear persecution from Pakistani authorities on account of his membership of a political movement, the Mohajir Quami Movement. The Tribunal found that this fear was not well-founded and affirmed the decision of the delegate. 4 In 1999, proceedings were commenced in the High Court of Australia by Mrs Lie, as prosecutor, against the Tribunal and the respondent ('High Court proceedings'). The applicant was joined to the High Court proceedings as a member of the class Mrs Lie sought to represent. On 8 August 2002, the High Court handed down judgment in Lie v Refugee Review Tribunal (2002) 190 ALR 601. While Mrs Lie represented a large number of people in the High Court proceedings, the judgment of the High Court was based on agreed facts and was limited to Mrs Lie. 5 On 25 November 2002, Gaudron J granted leave to those persons named in the schedule to the statement of claim filed in the High Court proceedings, of which the applicant was one such person, to file an application in the High Court seeking an order nisi in relation to the relevant decision of the Tribunal. Her Honour further ordered that, pursuant to s 44 of the Judiciary Act 1903 (Cth), any application filed pursuant to the above leave be remitted instanter to this Court in accordance with the usual terms of the remitter. 6 The applicant filed an application for an order nisi in the High Court on 29 May 2003. Pursuant to the orders of Gaudron J, the application was immediately remitted to this Court. The applicant's application, and those of a significant number of other persons named in the schedule to the statement of claim in the High Court proceedings, came before Emmett J for directions on 20 February 2004. The large group of applicants before his Honour on this date were represented by counsel. While it is unclear whether counsel had specific instructions to continue to act for the applicant at this time, for convenience I shall refer to counsel as 'counsel for the applicant'. His Honour described the applications before him at [17]-[18] of his judgment: 'The applications that were filed in May and June, which were remitted to this Court, are in virtually identical terms. In the present case, they consist of an affidavit by Mr Joel [solicitor for the applicants] annexing copies of the reasons of the delegate and the reasons of the Tribunal in relation to the applicant, coupled with a draft order nisi. Mr Joel's affidavits in each matter also state whether or not the particular applicant was a represented party in the Lie proceeding or the Muin proceeding. The form of draft order nisi filed in each case is in the form of an order that the Tribunal and the Minister show cause why, in respect of the Tribunal's decision, prerogative writ relief should not be granted, together with an order that there be an enlargement of time to permit the relevant applicant to commence proceedings for that relief. The ground for the relief are simply: 'The first respondent [the Tribunal] failed to accord the prosecutor procedural fairness.' No further particulars are given in the affidavits or in the draft orders nisi of the alleged denial of procedural fairness.' 7 His Honour continued at [20]-22] of his reasons: '…To obtain an order nisi, an applicant must show that he or she has at least an arguable case that the Tribunal, whose proceedings are called into question, has erred in a manner that would justify final relief by way of an order absolute. Therefore, the affidavit should set out concisely the factual background to the proceedings, the issues that arose between the parties before the Tribunal, the grounds of complaint in respect of the decision and the reasons why those grounds are sufficient to justify the granting of an order nisi. … It is patent that the material filed in this proceeding and each of the other similar proceedings does not demonstrate an arguable case for the grant of any relief. There is a bald assertion that the Tribunal failed to accord the applicant procedural fairness, coupled with the reference to either the Lie or the Muin proceeding in which generalised assertions are made, but in respect of which no particulars are furnished. It is fair to say that counsel for the applicants in all of the proceedings currently before the Court, did not contend that this Court would entertain an application for an order nisi on the basis of the material filed in any of the proceedings.' 8 At the same directions hearing before Emmett J, counsel for the applicant also sought orders requiring the respondent to provide discovery of certain documents. Emmett J refused this application stating at [25] that: 'In effect, the applicant is seeking an indulgence, both from the Court and from the Minister, to enable him to formulate an arguable case for relief. In the absence of any submission as to why the Minister should be ordered by the Court to furnish documents to which the applicant has no entitlement, I do not consider it appropriate to make the direction sought by the applicant.' 9 His Honour held that there was no good reason advanced why he should compel the respondent to provide the documents sought. As it was common ground that, in the absence of the requested documents, no arguable case could be demonstrated, Emmett J ordered that in each case the order nisi should be refused.