Applicant A210 of 2003 v Refugee Review Tribunal
[2004] FCA 392
•30 MARCH 2004
FEDERAL COURT OF AUSTRALIA
Applicant A210 of 2003 v Refugee Review Tribunal [2004] FCA 392
APPLICANT A210 OF 2003 v REFUGEE REVIEW TRIBUNAL AND SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 762 OF 2003LANDER J
ADELAIDE
30 MARCH 2004
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 762 OF 2003
BETWEEN:
APPLICANT A210 OF 2003
APPLICANTAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTSECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENTJUDGE:
LANDER J
DATE OF ORDER:
30 MARCH 2004
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The applicant’s application for the issue of the constitutional writs stands dismissed.
2.The applicant to pay the Minister’s costs. There will be no order as to costs of the other respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 762 OF 2003
BETWEEN:
APPLICANT A210 OF 2003
APPLICANTAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTSECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT
JUDGE:
LANDER J
DATE:
30 MARCH 2004
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 30 May 2003 the applicant applied in the High Court of Australia for the issue of the constitutional writs directed to the Refugee Review Tribunal in relation to a decision made by that Tribunal on 24 May 1999. It can be seen that the application was made more than five years after the decision complained of. The matter, on any understanding, is well out of time.
On 25 November 2002 Gaudron J remitted the matter to this Court for hearing pursuant to s 44 of the Judiciary Act 1903 (Cth).
The matter first came before me on 3 November 2003. At that time, amongst other orders, I made the following orders:
‘3. The applicant file and serve:
a. a statement of contentions of relevant facts and law setting out:
i. if the applicant has previously sought judicial review of the Refugee Review Tribunal decision the subject of this application, the reasons why the application should not be dismissed; and
ii. if the applicant requires an extension of time within which to file this application, the reasons why an extension of time should be granted; and
iii. particulars of the grounds relied upon for this application for the issue of prerogative writs and orders sought.
b. any affidavits in support of any of the contentions in para 3(a) which the applicant intends to rely on at the hearing on or before 15 December 2003.’
I made a further order:
‘5.In the event that order 3 is not complied with, the applicant will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.’
The matter, in fact, came before me again on 18 December 2003 and, at that time, I made an order extending the time within which the applicant had to comply with par 3 of my order of 3 November 2003 until 15 March 2004. That order was upon the application of the applicant’s then solicitor. Again, at the same time, I made the further order:
‘2.In the event that order 3 of my order of 3 November 2003, as extended by paragraph 1 of these orders, is not complied with, the applicant will be called upon at the adjourned directions hearing to be held on 22 March 2004 at 9.00am to show cause why the matter should not stand dismissed.’
The matter was adjourned until 22 March 2004. The matter came on again before me on that date. Shortly before that hearing, on 18 March 2004, Jacqueline Chan, a legal secretary employed by the applicant’s solicitor, Mr Girish Patel, filed an affidavit in which she exhibited a letter written on 10 March 2004 to the applicant. The letter was in the following terms:
‘We refer to our letter of the 22nd December 2003 in which we notified you of the Court order which required us to file Statement of Contentions of Law and Facts before the 15.03.2004.
As we haven’t received any evidence requested in our above letter which would indicate that if you were to return to India now you would suffer persecution because of your previous association with the militancy.
In the circumstances, as indicated to you, in our said letter, we shall withdraw from the proceedings.
We once again remind you that the matter is listed at 9:00 am on the 22nd March 2004 for direction hearing. If you fail to attend the direction hearing, your application will be dismissed with costs.’
On 12 March 2004 the Registry of this Court wrote to the applicant advising him that the matter had been set for hearing before me at 9.00 am on Monday, 22 March 2004. He attended court on that date and asked for a further extension of time within which to comply with the order so that he might instruct solicitors. On 22 March 2004 I again extended the time within which the applicant had to comply with my orders of 3 November 2003, this time until 4.00 pm on 29 March 2004. I adjourned the further directions hearing until today at 9.15 am.
The applicant has not appeared this morning. He has been called in the precincts of the court. The applicant has now failed to comply with the orders made by me on 3 November 2003, 18 December 2003 and 22 March 2004.
Ms Reed, who appeared for the Minister for Immigration and Multicultural and Indigenous Affairs, has asked that the matter be dismissed. For that submission, she relies on the applicant’s failure to comply with my orders and his failure to attend at the adjourned hearing this morning. It seems to me that the applicant has had more than adequate opportunity to prosecute his proceedings, if he in fact intended to prosecute the proceedings. He has had since 3 November 2003 to comply with the orders made on that date. He has not complied with any orders that the Court has made. He has not attended today. In my opinion, he has evidenced an intention not to proceed with his application.
In those circumstances, I make the following orders:
1. The applicant’s application for the issue of the constitutional writs stands dismissed.
2.The applicant to pay the Minister’s costs. There will be no order as to costs of the other respondent.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 15 April 2004
Counsel for the Applicant: The Applicant did not appear Counsel for the First and Second Respondents: E Reed Solicitor for the First and Second Respondents: Australian Government Solicitor Date of Hearing: 30 March 2004 Date of Judgment: 30 March 2004
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