DZADT v Minister for Immigration

[2014] FCCA 1057

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZADT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1057

Catchwords:
MIGRATION – Judicial review of decision of Refugee Tribunal – applicant failed to prosecute claim in timely manner – application for adjournment refused – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03A, 13.03B

AON Risk Management Services Ltd v Australian National University (2009) 239 CLR 175

Applicant: DZADT

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

REFUGEE REVIEW TRIBUNAL

File Number: DNG 9 of 2013

Judgment of: Judge Harland

Hearing date: 16 April 2014

Date of Last Submission: 16 April 2014

Delivered at: Darwin

Delivered on: 16 April 2014

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms Nanson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed pursuant to rule 13.03B of the Federal Circuit Court Rules 2001.

2. The Applicant shall pay the costs of the Respondent fixed at $6,646 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT DARWIN

DNG 9 of 2013

DAZDT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. The applicant seeks an adjournment of today’s hearing. I think one issue that is of concern is that the Registrar made orders on 13 December 2013.  The first order that the Registrar made was to give the applicant leave to file an amended application and, in particular, to set out the grounds that the applicant was relying on.  This is important because as Ms Nanson, the lawyer for the Minister says, the application that was filed on 6 November 2013 does not give any information about what the applicant claims is the jurisdictional error the Tribunal made. 

2. The Registrar also ordered the applicant to file any affidavit he wanted to, including an affidavit with the transcript of the Tribunal proceedings.  The Registrar also ordered the applicant to file written submissions and court authorities 14 days before the hearing.  There is also a letter from the court dated 4 February 2014 advising of today’s listing.  It is important that this material is on the record. 

3. The problem is that the directions were made in December 2013 and there is nothing before me that indicates that the applicant has done anything about what those directions required him to do.  The court has to juggle competing interests and there is a High Court decision of AON Risk Management Services Ltd v Australian National University (2009) 239 CLR 175 that talks about adjournment applications, and the issue is not just about your case before me today. That is one of the factors but it is also important for the court to be mindful of the need to protect.

4. There is a need to protect the administration of justice and that is talking about a flow-on effect to other cases.  So by adjourning this case, I would have to find another spot for it which means another case does not get that spot.  Now, sometimes, there will be good reasons to give an adjournment, even though that means another case might have to wait longer and one of the issues that arises in this case is the late request for the adjournment. 

5. By only making the request yesterday, it was too late for the court to hear any other case instead this afternoon and that is a relevant factor for the court to consider.  But the other concern I have, relating to your case in particular, is that I cannot be satisfied that you have made a timely effort to comply with the court directions.  The applicant was in court when the directions were made on 13 December 2013.  The applicant has not come to court today having complied with any of the directions that were made that day.  The applicant has not even filed material late.

6. In my view it is all a bit too late, because I cannot be satisfied that adjourning the case for two months will mean that the case will be ready to be heard, because the basic problem with the application, and that is, the applicant does not provide any detail as to what the error the Tribunal made, and that is why the Registrar made order 1 requiring the applicant to amend his application to set out the particulars of this complaint.  This is important because the task that the court has to carry out is one of judicial review.  That is not about the merit of the decision, but about the process.  I am not allowed to re-assess the material, and to find merit, where the Tribunal did not.  This is not a re-hearing.  It is quite a different process to the processes undertaken by the delegate to the Minister and the Tribunal.

7. It may have been different if there had been some attempt at dealing with that basic issue, and the other issues, but for the applicant to say he has contacted a lawyer, and the lawyer advised a couple of weeks ago that he couldn’t represent the applicant doesn’t cure the problem, because the court does not have an amended application.  As it stands, on the material before me, the application cannot succeed.  The applicant does not explain why none of the steps that the applicant has been required to make have been carried out.  It is an accumulation of those factors. 

8. It is the combination of seeking a late adjournment, not having done any of the things the applicant has been required to do and not showing any progress towards getting those things done.  The applicant has known about the hearing date for two and a half months.  The applicant has known about what had to be done for much longer, 13 December 2013.  So even if the court was minded to grant an adjournment, there is nothing that the court can be pointed to that would give me any assurance that the position would be different if the matter was to come back in two months time.  So for those reasons I reject the applicant’s application for an adjournment. 

9. The applicant has had the opportunity to study the Tribunal decision and identify any errors for the past several months.  That goes back to order 1 of the orders of 13 December 2013.  The applicant has not studied the decision, as he states today.  This suggests that he filed the application, in the hope there would be something found wanting in the Tribunal’s decision.  The effect of filing the application has been that the applicant has been able to stay in Australia longer.  As I already refused your adjournment application the hearing is taking place now.

10. This is a matter where Rule 13.03A of the Federal Circuit Court Rules 2001 (Cth) applies, and, in particular, subsection (1). That rule talks about when a party is in default, and what I am particularly referring to is the applicant, and it is clear that the applicant is in default in terms of rule 13.03A, subsection (1)(a), (b), (d) and (e), and that is, the applicant hasn’t complied with the court orders, being the orders of 13 December 2013.

11. The applicant has not filed and served the documents in accordance with the Rules. The applicant has not done everything required to be done. And the applicant has not – and I think it is important –prosecuted the proceedings with due diligence. And so, when there’s a default, Rule 13.03B permits the court to order that the proceedings be dismissed.

12. In this jurisdiction the costs follow the event which means, really, the person who wins the proceedings, or the person who is successful is entitled to costs.  So in those circumstances, as I see it, there’s really no other option but to dismiss the proceedings because of the default, and to order the applicant pay the costs of the first respondent in the sum of $6,646.40. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  23 May 2014