Applicant S1104 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 654

FEDERAL COURT OF AUSTRALIA

Applicant S1104 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 654

APPLICANT S1104 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD182 OF 2005

BENNETT J
13 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD182 OF 2005

BETWEEN:	APPLICANT S1104 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	13 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an adjournment is refused.

2.The notice of motion filed 29 April 2005 is dismissed with costs.

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	NSD182 OF 2005

BETWEEN:	APPLICANT S1104 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BENNETT J
DATE:	13 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application brought by notice of motion filed 29 April 2005, seeking the following orders:

   1.The decision of His Honour Hely J on 6 April 2005 be set aside and application to appeal be allowed.

   2.        The applicant be allowed to argue his case in full.

   3.The decision of the Federal Magistrate made on 17 December 2004 be set aside.

   4.The purported decision of the Refugee Review Tribunal in relation to this matter be quashed and declared invalid.

   5.        Costs; and

   6.        Any further order.

2. It is appropriate to set out a chronology of this matter, the details of which I was informed by Mr Crockett, who appears for the respondent.  The applicant, who appears before me today in person assisted by an interpreter, has not suggested that any of these events are incorrect.

   ·     The applicant arrived in Australia on 30 January 1999 and applied for a protection visa on 12 March 1999.

   ·     That application was refused by a delegate of the respondent (‘the delegate’) on 26 March 1999.

   ·     On 27 April 1999, the applicant applied for a review of that decision to the Refugee Review Tribunal (‘the Tribunal’).

   ·     On 19 April 2000, the Tribunal, in a decision handed down on 3 May 2000, affirmed the decision to the delegate.  That decision was challenged in this Court on 8 March 2001 by a notice of motion which was dismissed by Stone J.

   · Her Honour carefully considered the reasons for the decision of the Tribunal and the grounds raised by the applicant for review of that decision. Her Honour's conclusion is set out in [15] of her Honour's reasons ([2001] FCA 312). It is of interest to note that when the matter came on for hearing before her Honour, the applicant applied to vacate that hearing on the basis of his expectation that he would be able to obtain legal advice. That application was refused.

   ·     The applicant then became part of the “Muin and Lie” class action (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601). After those proceedings were discontinued on 22 January 2004, he applied on 17 March 2004 under s 39(B) of the Judiciary Act 1903 (Cth) to the Federal Magistrates Court, again to review the Tribunal’s decision.

   ·     That matter was placed in a non-compliance list by Federal Magistrate Barnes for failure on the part of the applicant to file an amended application as directed.  On 17 December 2004, after the non-appearance of the applicant, the application was dismissed.

   ·     On 9 February 2000, the applicant applied to this Court for leave to appeal the decision of Barnes FM.

   ·     In support of that application was an affidavit sworn 10 January 2005.  That affidavit did not set out any basis whatsoever for any error on the part of the Tribunal or the Federal Magistrate, nor did it provide any basis as to why an appeal from the decision of the Federal Magistrate would have any prospects of success.

   ·     The application for leave to appeal from Barnes FM’s decision came before Hely J on 6 April 2005.

   ·     Hely J noted that, on 4 April 2005, the solicitor for the respondent received a communication from the applicant purporting to annex a medical certificate which was not, in fact, annexed.  His Honour said that insofar as that facsimile transmission was a request for an adjournment of the hearing, the application for an adjournment was refused.  After noting the contents of the affidavit to which I have referred and the fact of the applicant's non-appearance before the Federal Magistrates Court, his Honour dismissed the application with costs.

3. The matter now comes before me.  On 11 May 2005, the applicant filed a document entitled, ‘Applicant's written statement’.  Annexed to that statement is a medical certificate for the period of 4 April 2005 to 7 April 2005 which certifies that during that period the applicant was ‘not fit for work/school’.

4. When I asked the applicant what he wished to say in support of the notice of motion, the applicant said that he wanted to have a solicitor to represent him.  To the extent that that constituted an application for an adjournment, I refused the adjournment.  I asked the applicant if he had anything else to say in support of the notice of motion.  He said that he did not.

5. There has been no satisfactory explanation or reason advanced for setting aside the decision of Hely J, nor has there been anything said at all as to how the applicant would have an arguable case on appeal.  I can see none.  Accordingly, the notice of motion is dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             24 May 2005

The applicant appeared in person assisted by an interpreter

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 May 2005
Date of Judgment:	13 May 2005