El-Halabi v Minister for Immigration and Multicultural Affairs

[2000] FCA 1144

FEDERAL COURT OF AUSTRALIA

El-Halabi v Minister for Immigration & Multicultural Affairs [2000] FCA 1144

Migration Act 1958 (Cth) s 478

DARWICH YASSINE EL-HALABI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 518 of 2000

BRANSON J
SYDNEY
4 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 518 of 2000

BETWEEN:	DARWICH YASSINE EL-HALABI APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	4 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with 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	N 518 of 2000

BETWEEN:	DARWICH YASSINE EL-HALABI APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	4 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, his wife and their 3 children are citizens of Lebanon.  They arrived in Australia on 3 October 1998.  On 13 November 1998, they lodged  applications for protection visas.  On 27 January 1999, a delegate of the respondent refused to grant them protection visas.  By a decision dated 5 April 2000, handed down on 18 April 2000, the Refugee Review Tribunal (“the Tribunal”) affirmed a decision of the delegate not to grant the applicant and his family protection visas.

2. The history before the Tribunal was as follows.  By a letter dated 6 October 1999, the Tribunal advised the applicant that it was unable to make a decision favourable to him on the basis of the material before it.  The Tribunal offered the applicant an opportunity to attend before it to give evidence on three separate occasions.  On the first occasion, the applicant’s adviser informed the Tribunal on the day of the scheduled hearing that the applicant was ill.  The hearing was rescheduled.  A few days before the date of the rescheduled hearing, the applicant’s adviser informed the Tribunal that the applicant would be out of the country for about 2½ weeks visiting his sick mother and that he would be leaving the day before the rescheduled hearing.  The hearing was again rescheduled.  The applicant did not attend the second rescheduled hearing.  Two days after the date of the second rescheduled hearing, the applicant’s adviser informed the Tribunal that the applicant had mistaken the hearing date and attended one day too late.  The Tribunal could find no record suggesting that the applicant had in fact attended on that day.  The applicant, through his adviser, was offered an opportunity to provide written submissions to the Tribunal.  No written submissions were received by the Tribunal.

3. On 19 May 2000, the applicant filed in this Court a document purporting to be an application for an order of review of the decision of the Tribunal (“the application”).  The decision of the Tribunal is a judicially reviewable decision within the meaning of the Migration Act 1958 (Cth) (“the Act”). The application was made in the name of the applicant alone; that is, it did not name either his wife or any of their children as applicants. It identified none of the grounds on which s 476 of the Act authorises an application for review to be made to this Court. The only purported ground of review on the application is:

   “The decision was made with incorrect country information.  The tribunal would not consider the material that I had provided.  I will obtain fresh information to submit to the Federal Court which will substantiate my claims.”

4. No specified relief is claimed by the document.  No fresh information has been provided to this Court.

5. Section 478 of the Act provides:

   “(1)An application under section 476 or 477 must:

   (a)be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and

   (b)be lodged with the Registry of the Federal Court within 28 days of the applicant being notified of the decision.

   (2)The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph 1(b).”

6. O 54B r 2(1) of the Federal Court Rules provides that:

   “An application to review a judicially-reviewable decision under the Migration Act 1958 must be in accordance with Form 56.”

   Form 56 provides for the identification of the grounds of the application for an order of review and of the relief claimed.

7. At a directions hearing held on 8 June 2000, the Registrar of the Court advised the applicant that the ground of review identified in his application was not a ground on which review by this Court was available.  He has not complied with a direction made by the Registrar on that day that he file and serve an amended application with a statement of particulars and any affidavit upon which he wishes to rely on or before 7 July 2000.

8. I note that at the hearing before the Registrar on 8 June, the applicant was represented by a migration agent named Mohammed Maarbani.  Today, at 12.47pm, a memorandum was received in my chambers by facsimile transmission.  It is on the letterhead of Worldwide Migration Services and it purports to be from Mohammed Maarbani.  The facsimile seeks an adjournment for 21 days of the hearing scheduled for today at 2.15pm.  The memorandum asks that I consider the following points:

   “(1)Whilst my client did not provide an amended affidavit by 7 July 2000, it should be noted that he did seek free legal advice, but, the Solicitor that he saw could not complete any forms or amendments for him.

   (2)The applicant is not in a position to hire the services of a Solicitor to deal and assist with his case, as his financial status means that he is in hardship.

   (3)He proposes to file an amended affidavit with my assistance within 14 days from today, and ask that a hearing be set down 21 days from today.

   (4)The main reason that my client is seeking an extension of time and a case to be adjourned is mainly to the fact that he has no representation, and does not understand the complex Federal Court Laws.”

9. When this matter was called on at 2.15pm today there was no appearance on behalf of the applicant.

10. Assuming, without deciding, that the Court in the circumstances of this case could waive compliance with O 54B r 2 of the Federal Court Rules (see s 478(2) of the Act), I do not believe that it is appropriate to do so. Nor am I persuaded, in view of the history of the matter, that it would be appropriate to adjourn the hearing of the matter listed before me today for 21 days or any other period.

11. In the absence of any proper explanation being offered on behalf of the applicant for his failure to appear today either personally or by a representative, his failure to comply with the directions of the Registrar and his failure earlier to seek an adjournment of this hearing, I am not persuaded of the bona fides of the applicant in applying for review by this Court of the decision of the Tribunal.  It is of significance in this regard that the applicant also failed to appear before the Tribunal despite being given three opportunities to do so.

12. The application does not comply with the mandatory requirements of s 478(1)(a) of the Act in that it is not in accordance with Form 56 (O 54B r 2 of the Federal Court Rules). No ground upon which this Court may review the decision of the Tribunal is identified in the application. The order of the Court is that the application is dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:   16 August 2000

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 August 2000
Date of Judgment:	4 August 2000