Applicant NAKY of 2002 v Minister for Immigration and Multicultural

[2003] FCA 48

FEDERAL COURT OF AUSTRALIA

Applicant NAKY of 2002 v Minister for Immigration & Multicultural
& Indigenous Affairs [2003] FCA 48

PRACTICE AND PROCEDURE – fixing of hearing date – discretion – non-replacement of Judge – factor to be taken into consideration against government responsible for non-replacement – reasons for ordering of priorities between competing claims of litigants in docket for early hearing dates – publication of reasons only.

APPLICANT NAKY OF 2002 v MINISTER FOR IMMIGRATION
& MULTICULTURAL & INDIGENOUS AFFAIRS

N 1333 of 2002

LINDGREN J
5 FEBRUARY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1333 OF 2002

BETWEEN:	APPLICANT NAKY OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	5 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this proceeding in my docket, the occasion has arisen for the fixing of a hearing date – a step which does not ordinarily call for the giving of reasons.

2. The applicant appeals from an order of the Federal Magistrates Court dismissing his application for review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed a decision of a delegate of the respondent Minister refusing the applicant’s application for a protection visa.

3. The applicant was not represented before the Federal Magistrates Court and is not represented before me this morning (he is assisted by an interpreter).  He is not in immigration detention.

4. The appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court is to be exercised by a Full Court unless the Chief Justice considers that it is appropriate for it to be exercised by a single Judge:  Federal Court of Australia Act 1976 (Cth) subs 25(1A). I agree with the solicitor for the Minister that it is appropriate that the proceeding be heard by a single Judge, and I will recommend to the Chief Justice that the appellate jurisdiction be exercised by a single Judge in this case. As has been my practice (directed to avoiding unnecessary delay), I will proceed to fix a hearing date before me in anticipation of my recommendation being accepted by the Chief Justice. If it is not, there will be ample time for a vacation of the fixture.

5. The applicant is not represented. Often appeals of the present kind have proved to be hopeless, whether due to s 474 of the Migration Act 1958 (Cth) or other reasons, and have taken little hearing time, say half an hour, although on occasions they have taken longer, up to half a day. (Whether this will continue to be the case in the light of the High Court’s judgments delivered in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 and Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor;  Ex parte Applicants S134/2002 [2003] HCA 1 last Tuesday 4 February 2003 remains to be seen.)

6. In these circumstances, in the interests of expedition, my routine practice in allocating hearing dates has been to try to find the earliest couple hours available, if necessary between other cases, and even outside ordinary sitting hours.

7. I now abandon that practice.  Justice Katz resigned as a Judge of this Court in March 2002 and has not been replaced.  The responsibility is that of the Commonwealth Government.  The respondent Minister is member of that Government.  In fixing hearing dates, it is commonplace for the Court to take into account conduct of a party which is inconsistent with that party’s wish for an early hearing.  The Government’s conduct in not replacing Justice Katz, for which I assume the Minister does not wish to disown all responsibility, is inconsistent with his wish for an early hearing.

8. The allocation of hearing dates raises a question of priorities.  Other litigants in cases in my docket are not responsible for the non-replacement of a Judge, and should not, to the extent it can be avoided, be disadvantaged, vis-a-vis the Minister, by that non-replacement.

9. Until Justice Katz is replaced, I will take into account as one factor relevant to any desire of the Commonwealth Government or its Ministers for an early hearing date, the fact that he has not been replaced.  This does not apply to independent Commonwealth statutory authorities:  they are not responsible for the present position.

10. What I have said above relates only to cases in my docket and is not intended to represent the view of any other Judge.  I have not previously discussed the matter with any other Judge.  I note, finally, that I have invited the solicitor for the Minister to make any submissions on behalf of his client in relation to the matter raised by me on the next occasion his client seeks a hearing date.

11. I will fix the proceeding for hearing on Monday 23 June 2003 at 10.15 am.

12. [Orders were made on the basis of short minutes of orders handed up by the solicitor for the Minister.]

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             5 February 2003

The Applicant appeared in person
Solicitor for the Respondent:	Mr R White of Sparke Helmore
Date of Hearing:	5 February 2003
Date of Judgment:	5 February 2003