Applicant A215 of 2003 v Refugee Review Tribunal
[2004] FCA 377
•22 MARCH 2004
FEDERAL COURT OF AUSTRALIA
Applicant A215 of 2003 v Refugee Review Tribunal [2004] FCA 377
APPLICANT A215 OF 2003 v REFUGEE REVIEW TRIBUNAL AND SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 764 OF 2003LANDER J
ADELAIDE
22 MARCH 2004
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 764 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
APPLICANT A215 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:
22 MARCH 2004
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The applicant’s application for the issue of the constitutional writs be dismissed.
2. The applicant pay the respondents’ costs.
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 764 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
APPLICANT A215 OF 2003
APPLICANTAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTSECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENTJUDGE:
LANDER J
DATE:
22 MARCH 2004
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 30 May 2003 the applicant brought proceedings in the High Court of Australia seeking the issue of the constitutional writs directed to the Refugee Review Tribunal in relation to a decision made by that Tribunal on 26 September 1996. The matter was remitted by the High Court to this Court for hearing. The matter first came before me on 3 November 2003 when 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.
…
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 was adjourned until 22 December 2003. However, the matter came on before me again on 18 December 2003 and the applicant’s then solicitor sought an order extending the time within which the applicant had to comply with par 3 of my order of 3 November 2003 until 8 January 2004. I acceded to that request and made that order. At the same time as I made that order, I made a 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 by 8 January 2004, the applicant will be called upon at the adjourned directions hearing to be held on 19 February 2004 at 9.00am to show cause why the matter should not stand dismissed.’
The matter came on again on 19 February 2004, when I made the following further orders:
‘1.Further extend the time within which the applicant has to comply with my order of 3 November 2003 until 4 March 2004.
2.Direct Mr Patel, at the time he serves on the applicant a notice of his intention to file and serve a notice of change of solicitors, pursuant to O 45 r 7 to advise the applicant that:
2.1I have extended the time within which the applicant has to comply with paragraph 3 of my orders of 3 November 2003 until 4 March 2004; and
2.1The further hearing of the applicant’s application is adjourned until 22 March 2004 at 9.00am.’
When the matter was called on before me this morning, the applicant did not appear. He was called in the precincts of the Court, but did not appear. On 18 March, Jenny Wu, who is a part-time secretary employed by the applicant’s former solicitor, filed an affidavit, sworn on 17 March 2004, in which she exhibited a letter sent to the applicant on 1 March 2004. That letter was in the following terms.
‘We refer to (sic) you to our letter of the 8th January 2004 in which we sought evidence from you indicating that there was a real chance of persecution if you returned to India, as you have failed to provide such evidence we have on the 19th February 2004 withdrawn from the case.
We herewith enclose a copy of the court order, which has extended the time for you to file statement of contentions of law and fact to the 04.03.04. The case is adjourned to the 22nd March 2004 at 9 am.
Please note that your application will be dismissed if you fail to appear on the 22nd March 2004.’
I am informed that on 16 March my associate also wrote to the applicant advising him that the matter would be heard this morning.
The applicant has failed to comply with orders made by me on 3 November 2003, 18 December 2003 and 19 February 2004. He has not appeared this morning. Ms Reed has asked that the applicant’s proceedings be dismissed. There seems to me to be no reason why the proceedings should not be dismissed. The applicant has failed to comply with a number of court orders. He has apparently failed to instruct his solicitor. There is no evidence that he wishes to prosecute the proceedings. The proceedings relate to a decision of the Refugee Review Tribunal which was given nearly eight years ago. In the circumstances, therefore, there will be an order that the applicant’s application for the issue of the constitutional writs is dismissed. The applicant to pay the respondents’ costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 1 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: 22 March 2004 Date of Judgment: 22 March 2004
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