HAROON v Minister for Immigration

[2010] FMCA 815

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAROON & ORS v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 815

MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – failure to comply with court orders.

Migration Act 1958 (Cth), s.476
Federal Magistrates Court Rules 2001 (Cth)

First Applicant: MOHAMMED HAROON

Second Applicant: ARSHAD BEGAM HAROON

Third Applicant: MOHAMMED SHAROON

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1519 of 2010

Judgment of: Driver FM

Hearing date: 21 October 2010

Delivered at: Sydney

Delivered on: 21 October 2010

REPRESENTATION

Solicitors for the Applicant: Mr T Leung
Link Lawyers

Counsel for the Respondents: Mr Cleary

Solicitors for the Respondents: Clayton Utz

INTERLOCUTORY ORDERS

1. The solicitor for the applicants is granted leave to withdraw.

2. The application is dismissed, pursuant to rules 13.03A(1)(a) and rule 13.03B(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

4. The Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served by ordinary pre-paid post, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1519 of 2010

MOHAMMED HAROON

First Applicant

ARSHAD BEGAM HAROON

Second Applicant

MOHAMMED SHAROON

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application under s.476 of the Migration Act 1958 (Cth), seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 7 June 2010. The Tribunal decided that it did not have jurisdiction in the matter.

2. The case came before me for procedural orders on 2 August 2010, at which time I made orders for the production of material and listed the case for hearing before me on 11 October 2010.  On 23 September 2010, the solicitors for the applicants sought the vacation of that hearing date due to the solicitor’s personal circumstances.  That was granted, and the matter was relisted for hearing today. 

3. Order 7 made by me on 2 August 2010 required the applicants to file and serve written submissions and a list of authorities 14 days before the hearing.  That order was not complied with.  On 15 October 2010, I instructed my associate to contact the applicants’ solicitors to enquire about the written submissions.  She did so by telephone and was advised at that time that the solicitors expected to be in a position to file the submissions today. 

4. Today when I came on the bench, the solicitor for the applicants advised different circumstances.  He told me that, apart from any personal difficulties, he was labouring under the difficulty that he had for the past two months being unable to obtain instructions from his clients.  His last attempted contact was an email to a relative of one of the applicants in late September to which there was no response.  It followed that the solicitors were unable to obtain instructions for the preparation of written submissions, or indeed for anything else relating to today’s hearing.  The solicitor who appeared properly sought to protect his clients’ interests by seeking a further adjournment in order to make one final attempt to obtain instructions.  Given that no instructions have been forthcoming for approximately two months, and there had been no response to the email in late September, I took the view that no useful purpose would be served by such an adjournment and refused the request.  I also gave the solicitor the opportunity to withdraw and he accepted that opportunity.

5. The Minister in the circumstances seeks the dismissal of the proceedings. Rule 13.03C of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) provides that if a party to a proceeding is absent from a hearing, including a first court date, the Court may do one or more of a number of things including, if the absent party is the applicant, dismiss the application.

6. Upon the withdrawal of their solicitor, the applicants became unrepresented.  The matter was called outside Court but, unsurprisingly, there was no response to the call.

7. In my view, it would be open to me to dismiss the application pursuant to rule 13.03C(1)(c). However, in the circumstances of this matter, I think that regard should also be had to rule 13.03A which deals more generally with default by a party. Relevantly, a party is in default if the party fails to comply with an order of the Court in the proceeding. The relevant order is the order for written submissions and a list of authorities. Rule 13.03B provides that if an applicant is in default, the Court may make a number of orders, including an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.

8. I have decided in all the circumstances that the application should be dismissed pursuant to rule 13.03A(1)(a) and 13.03B(1)(a) of the Federal Magistrates Court Rules. I so order.

9. The order is made in the absence of the applicants and they should be put on notice of the orders made and the opportunity to seek a vacation of those orders if sufficient cause can be shown pursuant to rule 16.05 of the Federal Magistrates Court Rules. In that regard, I will also direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be served by ordinary pre-paid post upon the applicants at their last known address for service.

10. The application having been dismissed, the Minister seeks an order for costs in accordance with the Court scale. I see no reason to depart from the scale. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  25 October 2010