Applicant M206 of 2003 v O'Brien

[2003] FCA 1620

FEDERAL COURT OF AUSTRALIA

Applicant M206 of 2003 v O’Brien [2003] FCA 1620

APPLICANT M206 OF 2003 v MARGARET O’BRIEN (AS THE REFUGEE REVIEW TRIBUNAL WHICH DETERMINED V95/08353) & ORS

V794 OF 2003

EMMETT J
19 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	V794 OF 2003

BETWEEN:

APPLICANT M206 OF 2003
APPLICANT

AND:

MARGARET O’BRIEN (AS THE REFUGEE REVIEW TRIBUNAL WHICH DETERMINED V95/08353)
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

19 DECEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant pay the respondents’ costs;

3. the respondents inform the applicant, in writing, as soon as practicable, of the terms of these orders and of the provisions of O 35 r 7(2)(a).

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	V794 OF 2003

BETWEEN:

APPLICANT M206 OF 2003
APPLICANT

AND:

MARGARET O’BRIEN (AS THE REFUGEE REVIEW TRIBUNAL WHICH DETERMINED V95/08353)
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

19 DECEMBER 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The applicant in this matter is a national of the Philippines, who arrived in Australia on 20 June 1993.  On 8 June 1994, she lodged an application for refugee status and protection entry permits under the Migration Act 1958 (Cth). From 1 September 1994, the application was dealt with as an application for a protection visa. On 27 June 1995, a delegate of the third respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. The applicant then sought a review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 10 March 1997, the Tribunal affirmed the decision not to grant a protection visa.

2. The basis of the applicant’s claims to be entitled to a protection visa was that she feared persecution or death if she returned to the Philippines due to the unstable and deteriorating political system, injustice, murders, civil war, corruption and bribery and inhumane actions of the authorities.  The Tribunal considered that the concerns about political stability, civil war, crime and corruption did not of themselves give rise to a well-founded fear of persecution for a Convention reason. 

3. In July 2000, the applicant became a party to a class action in the High Court.  Earlier this year, the applicant filed an application in the High Court for prerogative writ relief in relation to the Tribunal’s decision.  That matter was remitted to the Victoria District Registry of the Court.  On 16 October 2003, Marshall J directed the applicant to file and serve, on or before 24 November 2003, a statement of contentions of relevant facts and law and any affidavits on which she intended to rely.  The matter was then listed for directions on 28 November 2003. 

4. On 25 November 2003, the applicant’s then solicitors filed a notice of ceasing to act.  On the same day, the Minister’s solicitor wrote to the applicant drawing attention to the fact that there had been a failure to comply with the directions and indicating that, unless the direction was complied with by 27 November 2003, there would be an application for summary dismissal at the directions hearing on 28 November 2003.  At that directions hearing, the matter was transferred to the New South Wales District Registry. 

5. On 15 December 2003, my associate wrote, by express post, to the applicant informing her that the matter would be listed for directions today at 9.30 am.  When the matter was called today, there was no appearance for the applicant.  The Minister therefore sought summary dismissal of the application for failure to comply with the directions of 16 October 2003. 

6. The draft order nisi filed in the High Court is based on the decisions of the High Court in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601. Neither of those cases can have any possible application to the circumstances of the applicant and, on the face of it, the application is doomed to failure.

7. In the circumstances, I consider that it is appropriate to accede to the Minister’s request.   

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             23 January 2004

Counsel for the Applicant:	No appearance
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	19 December 2003
Date of Judgment:	19 December 2003