Applicant S1004/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 593

FEDERAL COURT OF AUSTRALIA

Applicant S1004/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 593

Migration Act 1958 (Cth)

Applicant S1004 of 2003 v Minister for Immigration [2005] FMCA 11, upheld

APPLICANT S1004/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 238 OF 2005

GYLES J
3 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 238 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1004/2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	3 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the respondent.

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	NSD 238 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1004/2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	3 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Lloyd-Jones, delivered on 28 January 2005 (Applicant S1004 of 2003 v Minister for Immigration [2005] FMCA 11). The grounds of appeal were general in nature. On 15 March last I made various orders and listed the matter for hearing today at 2.15 pm. The appellant did not appear when the matter was called, and I adjourned the matter for some 20 minutes or so to enable any mistake to be corrected. He still does not appear.

2. A brief history of the matter is that the appellant, who is a citizen of Bangladesh, arrived in Australia on 20 June 1999, and lodged an application for a protection visa.  On 15 October 1999 a delegate of the Minister refused to grant the visa and the appellant applied for a review of that decision.  The Refugee Review Tribunal, by a decision handed down on 16 May 2000, confirmed the delegate's decision and, without going into fine detail, did so because it did not accept the credibility of the appellant. 

3. According to the judgment below, the appellant had applied to this Court on 9 June 2000 for a review of the Tribunal decision, which on 6 October 2000 was dismissed by consent by order of Whitlam J, and the appellant was ordered to pay the respondent's costs.

4. It also appears that the appellant was party to the Muin and Lie class action, but withdrew from it on 19 June 2003 but commenced an individual action of that kind, which was dismissed in April 2004.

5. The learned Federal Magistrate considered both the apparent substance of any challenge to the Tribunal's exercise of jurisdiction and the arguments advanced to him on behalf of the Minister as to estoppel and abuse of process and dismissed the application.

6. All one needs say about that history, apart from noting the appellant’s flagrant disregard of the normal procedures of both the Federal Magistrates Court and this Court, is that it is a very good illustration of the way that the system as presently administered can lead to great abuse and has done so in the present case. 

7. I dismiss the appeal.  I order that the appellant pay the costs of the respondent.

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

Associate:

Dated:             13 May 2005

Counsel for the Appellant:	The Appellant did not appear
Counsel for the Respondent:	GT Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 May 2005
Date of Judgment:	3 May 2005