Applicant S12/2003 v Refugee Review Tribunal

[2003] FCA 1603

FEDERAL COURT OF AUSTRALIA

Applicant S12/2003 v Refugee Review Tribunal [2003] FCA 1603

APPLICANT S12/2003 v REFUGEE REVIEW TRIBUNAL & ANOR

N263 OF 2003

EMMETT J
27 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N263 OF 2003

BETWEEN:

APPLICANT S12/2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

27 OCTOBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.leave be granted to the second respondent to file a notice of motion in the form initialled by Emmett J;

2.        the application be dismissed;

3.        the applicant pay the second respondent’s 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	N263 OF 2003

BETWEEN:

APPLICANT S12/2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	27 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 24 December 2002, the applicant commenced a proceeding in the High Court of Australia seeking writs of mandamus, certiorari and prohibition.  On 6 February 2003, Gaudron J made orders remitting the proceeding to the Federal Court.  The matter came before me on 14 March 2003 when I made orders that the applicant file and serve a statement of claim and affidavits in support of his claims on or before 9 May 2003.  That direction was not complied with.

2. On 5 May 2003, I ordered that the directions previously made be varied to require the applicant to file and serve a statement of claim and any affidavits on which he wished to rely by the date 28 days after the first respondent, the Refugee Review Tribunal (‘the Tribunal’), provided the applicant with all relevant country information referred to in the reasons for the Tribunal’s decision of 27 July 2001.  The matter came before me for directions again on 6 June 2003 when I stood the matter over for further directions on 15 August 2003.

3. Prior to 14 July 2003, all of the country information material had been provided to the applicant.  However, on 13 August 2003, Gilbert + Tobin, the solicitors then acting for the applicant, filed a Notice of Ceasing to Act.  On 15 August 2003, I made orders standing the matter over for further directions on 5 September 2003.  When the matter came before me on that day, I ordered that the directions of 6 May 2003 be varied to require the applicant to file and serve a statement of claim and any affidavits on or before 10 October 2003.  I stood the matter over for directions today.  No statement of claim has been filed nor have any affidavits been filed. 

4. In the meantime, on 5 September 2003, the solicitor for the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), wrote to the applicant furnishing particulars of organisations who may be able to provide pro bono legal assistance.   When the matter was called on for directions today, the Minister sought summary dismissal of the proceeding on the basis that there had been failure to comply with directions given for the conduct of the proceeding.  When invited today to explain the failure, the applicant, who appeared in person, said that a friend on whom he was relying had gone to Malaysia.  There is no indication that any steps have been taken to try to obtain legal assistance from any of the pro bono sources indicated. 

5. In all the circumstances, I consider that it is appropriate to accede to the Minister’s application.  Accordingly, it follows that the application should be dismissed with costs.

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

Associate:

Dated:            22 January 2004

Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	27 October 2003
Date of Judgment:	27 October 2003