Applicant S368 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2004] FCA 1791

FEDERAL COURT OF AUSTRALIA

Applicant S368 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1791

APPLICANT S368 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 2570 OF 2003

APPLICANT S248 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1052 OF 2003

APPLICANT S217 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1018 OF 2003

APPLICANT S221 OF 2003 v REFUGEE REVIEW TRIBUNAL

NSD 1020 OF 2003

APPLICANT S241 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1026 OF 2003

APPLICANT S324 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD2399 OF 2003

APPLICANT S1812 OF 2003 v REFUGEE REVIEW TRIBUNAL

NSD2407 OF 2003

APPLICANT S332 OF 2003 v REFUGEE REVIEW TRIBUNAL

NSD2463 OF 2003

APPLICANT S358 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD2499 OF 2003

APPLICANT S359 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD2500 OF 2003

APPLICANT S360 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD2501 OF 2003

APPLICANT S1052 OF 2003 v REFUGEE REVIEW TRIBUNAL

NSD2689 OF 2003

EMMETT J
3 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD2570 OF 2003

BETWEEN:

APPLICANT S368 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD2570 OF 2003 THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

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

NSD1052 OF 2003

BETWEEN:

APPLICANT S248 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD1052 OF 2003 THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

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

NSD1018 OF 2003

BETWEEN:

APPLICANT S217 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD1018 OF 2003 THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

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

NSD1020 OF 2003

BETWEEN:

APPLICANT S221 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD1020 OF 2003 THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

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

NSD1026 OF 2003

BETWEEN:

APPLICANT S241 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD1026 OF 2003 THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

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

NSD2399 OF 2003

BETWEEN:

APPLICANT S324 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD2399 OF THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

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

NSD2407 OF 2003

BETWEEN:

APPLICANT S1812 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD2407 OF 2003 THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

`

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

NSD2463 OF 2003

BETWEEN:

APPLICANT S332 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD2463 OF 2003 THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

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

NSD2499 OF 2003

BETWEEN:

APPLICANT S358 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD2499 OF 2003 THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

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

NSD2500 OF 2003

BETWEEN:

APPLICANT S359 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD2500 OF 2003 THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

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

NSD2501 OF 2003

BETWEEN:

APPLICANT S360 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD2501 OF 2003 THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

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

NSD2689 OF 2003

BETWEEN:

APPLICANT S1052 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS IN PROCEEDING NSD2689 OF 2003 THAT:

1.Pursuant to Order 35A rule 3(1)(a) of the Federal Court Rules, the application be dismissed as to the whole of the relief claimed.

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

NSD2570 OF 2003

BETWEEN:

APPLICANT S368 OF 2003

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

NSD1052 OF 2003

BETWEEN:

APPLICANT S248 OF 2003

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

NSD1018 OF 2003

BETWEEN:

APPLICANT S217 OF 2003

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

NSD1020 OF 2003

BETWEEN:

APPLICANT S221 OF 2003

APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
RESPONDENT

NSD1026 OF 2003

BETWEEN:

APPLICANT S241 OF 2003

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

NSD2399 OF 2003

BETWEEN:

APPLICANT S324 OF 2003

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

NSD2407 OF 2003

BETWEEN:

APPLICANT S1812 OF 2003

APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
RESPONDENT

NSD2463 OF 2003

BETWEEN:

APPLICANT S332 OF 2003

APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
RESPONDENT

NSD2499 OF 2003

BETWEEN:

APPLICANT S358 OF 2003

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

NSD2500 OF 2003

BETWEEN:

APPLICANT S359 OF 2003

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

NSD2501 of 2003

BETWEEN:

APPLICANT S360 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

NSD2689 of 2003

BETWEEN:

APPLICANT S1052 OF 2003

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE:

EMMETT J

DATE:

3 DECEMBER 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. I have before me for directions 12 separate proceedings in which the applicant in each case seeks constitutional writ relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) to refuse a protection visa to the applicant.

  2. The proceedings were commenced in the High Court by the filing of draft orders nisi and affidavits in support.  Subsequently, each proceeding was remitted to this Court by the High Court.  Each of the applicants was notified by the Court that his or her proceeding was to be listed today for directions.  In each case there has been no appearance by the applicant.  There is good reason for that.  I have evidence before me that each of the applicants has voluntarily departed Australia.  That evidence consists of an affidavit by Ms Kristy Alexander of the Australian Government Solicitor annexing copies of the relevant movement records of the relevant applicants obtained from a database maintained by the Minister’s Department.

  3. The Minister, in the circumstances, asks for an order pursuant to O 35A r 3(1)(a) of the Federal Court Rules for dismissal of the proceeding in each case.  Order 35A r 2(1)(b) relevantly provides that, for the purposes of that order, an applicant is in default if the applicant fails to attend a directions hearing.  Rule 3(1)(a) provides that if an applicant is in default the Court may order that the proceeding be dismissed as to the whole or any part of the relief claimed.

  4. The Minister does not ask for an order for costs in the circumstances.  Accordingly, I consider that it is appropriate to concede to the Minister’s application and I will in each case make an order pursuant to O 35A r 3(1)(a) that the application be dismissed as to the whole of the relief claimed.

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:             11 February 2005

In each proceeding, the applicant did not appear:
Counsel for the Respondent: Mr A Markus
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 3 December
Date of Judgment: 3 December 2004
Details
AGLC
Applicant S368 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1791
Case
[2004] FCA 1791
Decision Date

CaseChat Overview and Summary

The matter before the Federal Court of Australia involved multiple proceedings initiated by applicants who sought constitutional writ relief in relation to decisions made by the Refugee Review Tribunal affirming the Minister for Immigration and Multicultural and Indigenous Affairs' refusal to grant them protection visas. Each applicant had commenced proceedings in the High Court, which were subsequently remitted to the Federal Court. Notably, none of the applicants appeared for the scheduled directions hearing, with evidence indicating that they had voluntarily departed Australia. The Minister, in light of the applicants' absence and departure, sought an order for dismissal of the proceedings under Order 35A rule 3(1)(a) of the Federal Court Rules, given that the applicants were in default for failing to attend the hearing.

The primary legal issue before the court was whether the applicants' failure to appear and their voluntary departure from Australia justified the dismissal of their proceedings. The court considered the provisions of Order 35A of the Federal Court Rules, which allow for the dismissal of proceedings where an applicant is in default. Rule 3(1)(a) specifically permits the court to dismiss the application in its entirety if the applicant is in default. The Minister argued that the applicants' absence and departure constituted default, warranting dismissal of their claims.

Justice Emmett, who presided over the cases, determined that the applicants' failure to appear and their voluntary departure from Australia provided sufficient grounds for the court to dismiss the proceedings. The judge found that the applicants were in default under Rule 2(1)(b) of Order 35A, as they did not attend the scheduled hearing. Consequently, the court granted the Minister's application and ordered the dismissal of each proceeding as to the whole of the relief claimed, pursuant to Order 35A rule 3(1)(a).

The court did not impose costs on the Minister, considering the circumstances of the case. The final orders were made on 3 December 2004, dismissing all applications in their entirety.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EMMETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.