Applicant S1152 of 2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 512

FEDERAL COURT OF AUSTRALIA

Applicant S1152 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 512

APPLICANT S1152 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 5 OF 2006

EMMETT J

3 MAY 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 5 OF 2006

BETWEEN:

APPLICANT S1152 OF 2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion filed on 8 March 2006 be dismissed. 

2.The matter be listed for hearing at 10:15am on Monday, 8 May 2006.

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 5 OF 2006

BETWEEN:

APPLICANT S1152 OF 2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	3 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application to vacate the hearing of an appeal fixed for Monday, 8 May 2006.  The notice of appeal was filed on 3 January 2006.  The appeal was first listed for directions before Tamberlin J on 17 February 2006.  On that day, Tamberlin J gave leave for any amended notice of appeal to be filed and served by 10 March 2006 and listed the appeal for hearing before himself on 19 April 2006.  His Honour also gave directions for the preparation of appeal papers and for written submissions.

2. On 8 March 2006, the appellant filed a notice of motion seeking orders that the hearing of the appeal be re-fixed after July 2006, so that the appellant would be able to obtain the services of a lawyer under the pro bono scheme of the Law Society of New South Wales or to organise funds to retain a lawyer to assist and appear for him in court.  Tamberlin J apparently directed that that motion be listed for hearing on 19 April 2006 with the appeal.

3. However, it appears that, following the filing of the notice of motion, the hearing for 19 April 2006 was vacated by Moore J in his capacity as appeals list judge.  The hearing of the motion was also vacated and the appeal was fixed for hearing before a Full Court on 8 May 2006.  By letter dated 6 April 2006 addressed to a Post Office box number, which is the appellant's address for service in his notice of appeal, the appellant was notified that the appeal had been listed for hearing before a Full Court on 8 May 2006.

4. On 1 May 2006, the appellant attended at the Registry of the Court with a letter of the same date, in which he said as follows:

   ‘I am the applicant in the above application and this is an appeal from the Chief Federal Magistrate Pasco’s [sic] judgment. This case was assigned to a single Judge in the Federal Court and I filed a Motion and an affidavit on the 8 March 2006 after obtaining leave from court to re-fix the hearing date after July 2006 and also to extend the date in July 2006 to submit my amended application to enable me to obtain the services of a lawyer after I am able to get the finances obtained from Sri Lanka. 

   Despite these arrangements suddenly I am told that my above appeal has been fixed for hearing before a full Federal Court Bench on the 8 May 2006.  I am worried over these developments particularly with out the assistance of a lawyer, and kindly request you to consider these facts and advise me accordingly.’

   I directed that any application to vacate the hearing on 8 May 2006 be listed before me today. 

5. The appellant appears in person without any legal assistance, although he had the assistance of an interpreter today.  He says that he is waiting for money to come from Sri Lanka to help him retain lawyers to give advice.  He made no assertion that he had consulted the Law Society or the Bar Association in relation to their pro bono schemes.  He was unspecific concerning who it was that he was speaking to in Sri Lanka and when it was that he might receive funds to assist.

6. The appellant seeks relief in respect of a decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’), made on 14 December 2000, which was notified to the appellant on 17 January 2001.  By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refusing a protection visa to the appellant under the Migration Act 1958 (Cth). The appellant was previously a party to a proceeding in the High Court of Australia. He subsequently commenced his own proceeding which, by order of Gaudron J made on 25 November 2002, was remitted to this Court.

7. The proceeding was for Constitutional writ relief in respect of the Tribunal's decision.  On 20 February 2004, I refused orders nisi in the proceeding.  That refusal, of course, was an interlocutory order and did not preclude the appellant from commencing a further proceeding seeking substantive relief.  The appellant commenced a proceeding in the Federal Magistrate’s Court.  In that proceeding he filed an amended application on 3 September 2004, pursuant to directions given by that Court, he filed written submissions on 5 December 2005.  On 20 December 2005, Pascoe CFM ordered that that proceeding be dismissed with costs following the hearing on 19 December 2005.

8. As I have said, the proceeding presently under consideration was commenced by notice of appeal filed on 3 January 2006.  The appellant has had ample time to obtain legal assistance, if any legal assistance is to be obtained.  I should observe that, in the proceeding in the High Court and before me in February 2004, the appellant was represented by a solicitor and counsel.  No sufficient reason has been advanced, in my view, as to why the appeal should not proceed on 8 May 2006.  I therefore propose to confirm the fixture for 8 May 2006.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             8 May 2006

The Appellant appeared in person
Solicitors for the First Respondent:	Australian Government Solicitor
Date of Hearing:	3 May 2006
Date of Judgment:	3 May 2006