Applicant A222 of 2003 v Refugee Review Tribunal

[2004] FCA 378

FEDERAL COURT OF AUSTRALIA

Applicant A222 of 2003 v Refugee Review Tribunal [2004] FCA 378

APPLICANT A222 OF 2003 v REFUGEE REVIEW TRIBUNAL AND SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 771 OF 2003

LANDER J
ADELAIDE
22 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 771 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT A222 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

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 is dismissed.

2.        The applicant to 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 771 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT A222 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	LANDER J
DATE:	22 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 30 May 2003 the applicant brought proceedings in the High Court of Australia seeking the issue of the constitutional writs.  Those proceedings were remitted to this Court for hearing.  On 3 November 2003 I made the following orders, amongst other orders:

   ‘3.       The applicant file and serve:

   (a)a statement of contentions and 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.’

2. I adjourned the directions hearing until 22 December 2003.  At the same time I made the following 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.’

3. The matter came on again on 18 December 2003 and, at that stage, at the request of the applicant's then solicitor, I extended the time within which the applicant had to comply with par 3 of my orders of 3 November 2003 until 8 January 2004.  Again, I made an order in the following terms:

   ‘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 9.00 am to show cause why the matter should not stand dismissed.’

4. The matter was called on yet again on 19 February 2004.  At that time, again at the request of the applicant's then solicitor, I extended the time to comply with my order of 3 November 2003 until 4 March 2004.

5. On 18 March 2004 an affidavit sworn on 17 March 2004 by the secretary of the applicant's former solicitor, Mr Patel, was filed.  Exhibited to that affidavit is a letter from Patel and Co to the applicant, which relevantly stated:

   ‘We refer to (sic) you to our letter of 8^th January 2004 in which we sought evidence from you indicating that there was a real chance of persecution if you return to India, as you failed to provide such evidence we have on the 19^th February 2004 withdrawn from the case.’

6. When the matter was called on this morning, a representative of the solicitor sought leave to file a Notice of Ceasing to Act.  A Notice had been filed on 1 March 2004, but it probably did not comply with O 45 r 7.  There being no objection, I gave leave for the solicitor to withdraw.

7. The applicant has sought a further extension of time within which to comply with the orders made by me on 3 November 2003.  This would be the third extension if I were to grant it.  Nothing has been put to me to justify any further extension of time.  The applicant says he wishes to obtain the advice of a solicitor.  He was not able to tell me whether or not he received Mr Patel's letter of 1 March 2004 and he has not given any reason why any other solicitor has not been approached in the meantime.

8. In the circumstances, I am not persuaded to further extend time for the applicant to comply with my orders.  In those circumstances, 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 eight (8) 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 appeared in person
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