Applicant S126 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1415

FEDERAL COURT OF AUSTRALIA

Applicant S126 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1415

APPLICANT S126 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 832 of 2004

WILCOX J
27 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 832 of 2004

BETWEEN:	APPLICANT S126 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	27 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to Order 51A rule 5(2) of the Federal Court Rules, Order 51A rule 5(1) not apply to this case.

2.        The application for an order nisi be refused.

3.The applicant pay the 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	NSD 832 of 2004

BETWEEN:	APPLICANT S126 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	27 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for an order nisi in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’), which was handed down on 10 March 2003. 

2. The present proceeding was commenced on 5 April 2004 by the applicant filing an application for prerogative relief in the High Court of Australia.  The Chief Justice of the High Court remitted the matter to this Court.  It was allocated to the docket of Lindgren J. 

3. At a directions hearing before Lindgren J on 8 September 2004, the applicant appeared in person, assisted by an Urdu interpreter.  The applicant comes from Pakistan. Apparently Urdu is his first language.  On that occasion, Lindgren J directed, amongst other things, that the applicant file and serve an amended application, giving complete particulars of each ground of review relied upon by him.  This document was to be filed and served by 6 October 2004.  No such document was filed. 

4. Lindgren J also fixed the matter for hearing today.  At that time, I think, his Honour envisaged that he would hear the matter.  However, because of his commitment to a very lengthy native title case, it was arranged that the matter be listed for hearing before me.  My associate contacted the applicant by telephone and advised him the matter would proceed for hearing, as arranged, but that it would be listed before me rather than Lindgren J. 

5. When the matter was called for hearing this morning, there was no appearance on behalf of the applicant.  I was about to make an order dismissing the application, when Mr Kumar, solicitor, appeared on his behalf.  Mr Kumar told me that he had been approached by the applicant at 7.00pm last night and asked to appear today.  Apparently he received a copy of the Tribunal’s reasons this morning.  Mr Kumar said he has not had an opportunity to read the reasons carefully.  Mr Kumar asked for an adjournment.

6. I am not prepared to grant an adjournment in this case.  The proceeding was commenced by the applicant himself, over five months ago.  The applicant was in court for directions six weeks ago, when the hearing was set down for today.  He was apprised of the necessity of considering his case and filing an amended application.  He had four weeks to do that.  He did nothing along those lines.  It seems that it was only at the very last moment that he sought legal assistance. 

7. This Court allocates hearing dates on the basis that the Court will do everything possible to meet the allocated date, even, as in this case, to the point of changing the judge hearing the matter.  The corollary of the Court’s commitment to the specified date is that the parties are expected to be ready for a hearing on that date, except in cases of unexpected and unavoidable difficulty.  There is nothing to indicate such a difficulty in this case.  The only inference I can draw from the history of the matter is that the applicant neglected to do anything about getting legal representation until late on the day before the hearing.  That is not good enough.

8. I invited Mr Kumar to indicate to me some possible basis on which it might be argued that the Tribunal fell into jurisdictional error.  As I informed Mr Kumar, I did this against the possibility that, notwithstanding all the matters I had mentioned, I might be disposed to give the applicant an opportunity of putting together an argument if there was a real legal issue in the case, perhaps on conditions as to costs.  However, Mr Kumar frankly said that it seemed there was no jurisdictional error and he was unable to comment on what argument there might be. 

9. If I granted an adjournment, the effect of this would be to increase the costs incurred by the respondent.  The probability of recovery of those costs has not been investigated, but there must be a doubt about that matter.  I do not think that it is fair to impose this burden on the respondent and I do not think it is right for the Court to burden itself with allocating two different hearing dates to a person who does not take the trouble to look after his own interests and, in any event, would seem not to have any case.  Accordingly, I am not prepared to grant an adjournment. 

10. The appropriate course is for me to order, pursuant to Order 51A rule 5(2) of the Federal Court Rules, that Order 51A rule 5(1) shall not apply to this application.  I refuse the application for an order nisi and order that the applicant pay the respondent's costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             8 November 2004

Solicitor for the Applicant:	Mr N R Kumar
Counsel for the Respondent:	Mr A J McInerney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	27 October 2004
Date of Judgment:	27 October 2004