Alshams v Minister for Immigration and Multicultural Affairs

[2001] FCA 680

FEDERAL COURT OF AUSTRALIA

Alshams v Minister for Immigration and Multicultural Affairs
[2001] FCA 680

MAQSOOD ATAUL KABIR ALSHAMS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1123 of 2000

WILCOX J
11 JULY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1123 of 2000

BETWEEN:	MAQSOOD ATAUL KABIR ALSHAMS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	11 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion be dismissed.

2.The applicant pay the costs of the respondent of the motion.

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	N1123 of 2000

BETWEEN:	MAQSOOD ATAUL KABIR ALSHAMS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	11 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application, by way of notice of motion, filed by the applicant in a proceeding brought against the Minister for Immigration and Multicultural Affairs and the Secretary of the Department of Immigration and Multicultural Affairs. 

2. The notice of motion, which was filed on 4 July 2001, seeks, in effect, an order setting aside an order made by me on 31 January 2001 dismissing the principal proceeding.  I took that course because Mr Alshams did not then appear.

3. Mr Alshams was aware of the hearing date.  He says today that he had a back pain on 31 January.  He claims to have faxed to the Court a medical certificate that is now before the Court.  It is dated 29 January 2001 and is apparently signed by Dr Theo Rothaneous of the Waterloo Medical Centre at Waterloo.  The certificate states that the writer has examined Mr Alshams, apparently that day, and offers the opinion that Mr Alshams was suffering from “back pain” and would be unfit for work from 29 January until 1 February. 

4. Mr Alshams claims to have faxed the certificate to 9230 8889.  That number is connected to the fax machine in my chambers.  The certificate was certainly not received on that machine.  At the time my associate made inquiries as to whether there had been any contact by Mr Alshams with anybody in the Registry.  My associate and my secretary check the fax machine on a regular basis.  Mr Alshams may have intended to transmit the certificate but have failed to do so, perhaps because he misdirected it.  Whatever the situation, nothing was heard from him; accordingly, I dismissed the application. 

5. Mr Alshams filed a notice of appeal against my order.  The appeal came before a Full Court on 23 May 2001.  The Full Court held the course taken by me, in dismissing the application, was a proper course and dismissed the appeal.  However, the presiding Judge, Lee J, pointed out to Mr Alshams that a dismissal under those circumstances was not final and it was open to him to apply to me to set aside my order. 

6. Mr Alshams contacted my associate.  He was informed this should be done by notice of motion.  He filed a notice of motion and the matter is back in court today. 

7. I indicated to Mr Alshams that I am not impressed with his explanation for non-attendance on 31 January.  A medical certificate simply referring to “back pain” and inability to work for three days is not a very persuasive basis for claiming inability to come to court.  However, I also indicated to Mr Alshams that I would be minded to exercise my discretion in his favour if he could indicate to me that there was substance in his principal claim. 

8. The principal claim depends upon the Administrative Decision (Judicial Review) Act 1977.  The application invokes five grounds of review specified under that Act.  Unfortunately for Mr Alshams, there seems to be nothing to support any of them. 

9. The history of the matter, briefly, is that Mr Alshams is of Bangladeshi origin.  At some stage after arrival in Australia, he was taken into detention.  He was held in detention for a period of 475 days, from 8 January 1999 to 27 April 2000.  During that time, he made an application for a protection visa which was refused by the delegate of the Minister.  He sought review of that decision by the Refugee Review Tribunal.  That application failed.  He sought judicial review of the Tribunal’s decision in this Court.  His case was heard by Mansfield J.  The application for judicial review was dismissed.  Mr Alshams then unsuccessfully appealed to a Full Court against Mansfield J’s decision.  I understand he currently has an application, before the High Court of Australia, for special leave to appeal against the Full Court decision. 

10. In the meantime, on 27 April 2000, Mr Alshams was released from immigration detention.  He was released on a bridging visa which was made subject to condition 8507 contained in the Migration Regulations 1994.  That condition requires the holder of a bridging visa, within the period specified by the Minister for the purpose, to pay, or make an arrangement that is satisfactory to the Minister to pay, the costs of the holder's detention.  In the case of Mr Alshams, that cost was assessed at $63,753.  Mr Alshams was forbidden to work during the period he held the bridging visa.  Not surprisingly, he is not able to pay $63,753.  It seems no action has been taken to enforce the condition; he remains at large pursuant to the bridging visa.  However, Mr Alshams applied to the Department for waiver of the debt or, alternatively, to be allowed to pay by instalments of $10 per month.  This application was considered and rejected.  The rejection of that application is the subject matter of the current proceeding under the Administrative Decisions (Judicial Review) Act. 

11. I have read the Minute setting out the decision to refuse the application to pay by instalments.  It is clear from the Minute that the decision maker, and those who advised him, were well aware that Mr Alshams was in no position to pay the full amount or, indeed, any significant amount whatever.  However, it was pointed out that if the application to pay $10 per month was accepted, this would bind the Commonwealth even if there was an improvement in Mr Alshams’ financial position.

12. It seems there is a rule, provided by an administrative circular requiring that a person who pays a debt by instalments is to provide a lump sum initial payment of $2000.  It was calculated that, assuming this requirement was satisfied, and I interpolate there is no reason to believe Mr Alshams would have been able to satisfy the requirement, and that no interest was charged, it would take 514 years to pay the debt at the rate of $10 per month.  Under the circumstances, it is not surprising that the application was refused. 

13. There is a tension, an element of incongruity – some people might use a stronger word – about imposing a condition for payment of a lump sum of many tens of thousands of dollars as a condition of a bridging visa granted to a person who is known to have little or no assets and is forbidden to work.  Why this standard condition was developed, I do not know, but that is the condition provided by the Migration Regulations. 

14. The current case questions the legal validity, on various grounds, of the decision to refuse the application to pay by instalments.  I do not see any basis for challenging the validity of that decision.  When I pointed this out to Mr Alshams, he sought an adjournment of the present hearing so he could get legal advice.  I am not prepared to adopt that course. 

15. It seems to me the whole case is somewhat academic.  If Mr Alshams is eventually unsuccessful in his litigation over the grant of a protection visa, it may be expected that action will be taken to remove him from Australia; that will probably be the end of the matter, so far as the debt is concerned.  I understand from Mr Beech-Jones, counsel for the respondent, that the usual practice, where an applicant for refugee status is ultimately successful, is that detention fees are waived.

16. Any decision, by or on behalf of the Minister, to cancel the bridging visa on the ground that Mr Alshams has not fulfilled the condition of payment might be a decision vulnerable to attack upon the basis that it is so unreasonable that no reasonable person would come to that decision.  Mr Beech-Jones accepts this may be so.  However, he rightly points out that this is not a matter currently before the Court. 

17. I do not think I would be justified in granting a further adjournment of this case, involving further expenditure of Court time and costs by the Minister on what seems to be an academic point.  I further have in mind that Mr Alshams has had every opportunity of getting whatever legal advice he wishes.  He should have done this before 31 January if, as he says, he genuinely intended to come to Court on that day.  Failing that, he certainly should have done it between the time he was before the Full Court, on 23 May, and today.  It is not right indefinitely to give people further time to get legal advice when costs, almost certainly irrecoverable costs, are thereby imposed on other parties.

18. I order that the notice of motion filed on 4 July 2001 be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:
Dated:             27 July 2001

The Applicant appeared in person.
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 July 2001