A97 of 2002 v Minister for Immigration
[2004] FMCA 190
•16 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A97 OF 2002 v MINISTER FOR IMMIGRATION & ORS | [2004] FMCA 190 |
| MIGRATION – Application for adjournment – matter had already been before High Court and Federal Court – delay by applicant. |
| Applicant: | APPLICANT A97 OF 2002 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | ERAINE GROTTE, REFUGEE REVIEW TRIBUNAL |
| Third Respondent: | PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL |
| File No: | AZ 48 of 2004 |
| Delivered on: | 16 March 2004 |
| Delivered at: | Adelaide |
| Hearing date: | 16 March 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms C White |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ 48 of 2004
| APPLICANT A97 of 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| ERAINE GROTTE, REFUGEE REVIEW TRIBUNAL |
Second Respondent
| PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL |
Third Respondent
REASONS FOR JUDGMENT
In this matter the applicant has sought an adjournment. The application for an adjournment should be put in the context of the proceedings as a whole. Those proceedings were commenced in 2002 when the applicant was represented by a solicitor, Mr Clisby. In February 2003 certain orders were made by Hayne J in the High Court. On 4 April 2003 orders were made by Mansfield J in the Federal Court. By consent those orders were vacated on 15 April 2003. On 20 May 2003 von Doussa J made certain orders which included a requirement to the applicant to file an outline of submissions. Insofar as those submissions refer to the merits of the proceedings, that order has never been complied with.
On 11 July 2003 Selway J dismissed the proceedings on the basis that the orders of von Doussa J had not been complied with. An appeal was made against that order and eventually it was set aside by Lander J on 12 December 2003. On that day his Honour made orders that the applicant compy with the orders of von Doussa J of 20 May 2003, by 12 February 2004.
On 16 February 2004 the applicant filed a notice of motion for summary dismissal. The matter came before Lander J on 12 March 2003 and his Honour made orders transferring the matter to this court and listed it for hearing before me today. The applicant had meanwhile applied for the matter to be transferred to this court but to be heard in New South Wales. This morning the applicant reminded me of that application and I told him that I was not prepared to grant it. The case has already been referred to this court and I have come down here especially to hear it. I am aware that if the case was transferred to New South Wales it may not be heard until some time late in 2005.
Now the applicant seeks an adjournment. He has handed me a copy of a letter from Legal Aid which gave him an appointment at 11 am yesterday. He told me that he had not attended that appointment because he was on his way to South Australia. The respondent objects to the adjournment. I am not disposed to grant it. This case has been around for a very long time. The applicant has had an opportunity either to obtain legal advice or to file on his own behalf the required documents. I am quite prepared to hear the matter today without him having filed the required documents and I have no doubt that the respondent is equally happy to deal with the case without the filing of the required documents.
Although the applicant may not appreciate it, this is not a re-hearing of his claim for asylum. It is a hearing of an application for review of a decision of the Refugee Review Tribunal. In order for the applicant to succeed, he must establish to my satisfaction that a jurisdictional error has been made.
The circumstances of what occurred before the tribunal are the same now as they were in 2001. The applicant has had since the handing down of the decision on 31 October in that year to work out exactly why the tribunal fell into procedural error. He, at one stage, had the benefit of legal advice in order to do this. It really is not appropriate that any further time be given.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
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