Kaur v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 712

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 712

JAGDISH KAUR & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MEMBER MIGRATION REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL

S130 OF 2003

FINN J
9 JULY 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S130 OF 2003

BETWEEN:

JAGDISH KAUR & ANOR
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

9 JULY 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicants pay the first respondent’s costs in the sum of $2,500.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S130 OF 2003

BETWEEN:

JAGDISH KAUR & ANOR
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER MIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE MIGRATION REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	FINN J
DATE:	9 JULY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT (EX TEMPORE)

1. The originating proceedings in this matter were filed in the High Court of Australia, seeking judicial review of a decision of the Migration Review Tribunal, which in turn was delivered on 24 May 1999, a period of over four years prior to the High Court application.  In that decision the Tribunal, affirmed an earlier decision refusing to grant the applicants Change in Circumstances (Residence) (Class AG) visas.

2. The matter was remitted to this court, and on 4 April 2003 Mansfield J made orders giving the applicant time to file and serve a notice of motion seeking an extension of time within which to file proceedings and to file and serve an affidavit explaining the delay in filing proceedings in the High Court. 

3. His Honour also ordered that, if those orders were not complied with, the applicant would be called on at an adjourned directions hearing to show cause why the matter should not stand dismissed.  Those orders were subsequently varied as to dates, and an order was made adjourning the matter to yesterday's date, with the intent that if no notice of motion was issued, the application would be dismissed.

4. On 29 June the applicants communicated with the registry seeking to have the matter transferred to New South Wales and also raising health concerns in relation to the male applicant.  It was indicated in a response to them that these matters would be raised before the court today.  No notice of motion was filed by the applicants and, likewise, no affidavit was filed.

5. I consider that the request for transfer, even on humanitarian grounds, is one that should not be acceded to.  The reason for this is the applicants were put on notice that the application would be dismissed today if the notice of motion and supporting material was not filed.  That has not been done.  Their legal representative has not felt able to advance arguments in support of the matter being kept on foot.  I am satisfied, I should add, that there appears to be no reasonably arguable challenge open to be made against the tribunal's decision.  In all the circumstances, I consider it appropriate to order that the application be dismissed.

6. I order that the applicants pay the first respondent's costs in the sum of $2500.  There will be no order as to costs in relation to the second and third respondents.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:
Dated:            11 July 2003

Counsel for the Applicant:	Mr M Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	Mr J Harris QC, Mr L Leerdam
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 July 2003
Date of Judgment:	9 July 2003