Applicant S235 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1359

FEDERAL COURT OF AUSTRALIA

Applicant S235 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1359

APPLICANT S235 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

NSD2674 OF 2003

EMMETT J
28 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2674 OF 2003

BETWEEN:

APPLICANT S235 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

28 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A rule 5(1) not apply to the proceeding.

2.        The application for orders nisi be refused.

3.        The applicant pay the costs of the first respondent in the sum of $1,200.

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	NSD2674 OF 2003

BETWEEN:

APPLICANT S235 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	28 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, who claims to be a citizen of India, arrived in Australia on 28 July 2000.  On 8 August 2000, he lodged an application for a Protection (Class XA) Visa under the Migration Act 1958 (‘the Act’).  On 16 January 2001, a delegate of the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant a protection visa and, on 30 January 2001, the applicant applied to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for review of the delegate’s decision.  On 9 January 2002, the Tribunal affirmed the decision not to grant a protection visa.  The applicant was notified of the decision on or shortly after 5 February 2002. 

2. On 28 May 2003, the applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi and an affidavit. By the draft order nisi, the applicant claimed Constitutional writ relief in respect of the decision of the Tribunal and of the Minister’s delegate.  On 25 August 2003, Heydon J ordered that the further proceedings in the application, including any application for enlargement of time, be remitted to the Federal Court of Australia.

3. On 12 November 2004, the District Registrar of the Federal Court wrote to the applicant inviting him to make written submissions on the question of whether there is an arguable case for the grant of the relief claimed by the draft order nisi in the material before the Court.  On 24 November 2004, the Minister’s solicitors wrote to the applicant indicating that the Department of Immigration and Multicultural & Indigenous Affairs had provided the solicitors with information that indicated that the applicant had left Australia on 16 November 2004.  The solicitors invited the applicant to communicate with them to indicate his intentions as to the future of the proceeding. 

4. There has been no response either to the letter from the District Registrar or to the letter from the Minister’s solicitors.  Further, there is evidence before the Court that the applicant in fact left Australia on 16 November 2004.  By letter of 30 June 2005, the Minister’s solicitors requested the Court to refuse an order nisi and make an order that the applicant pay the Minister’s costs.  In the circumstances, it is appropriate to accede to that request.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             28 September 2005

No appearance for the Applicant
Solicitor for the Respondent:	Sparke Helmore
Date of Judgment:	28 September 2005