Khalel v Minister for Immigration and Multicultural Affairs

[1999] FCA 1163

FEDERAL COURT OF AUSTRALIA

Khalel v Minister for Immigration & Multicultural Affairs
[1999] FCA 1163

SABIR SAID KHALEL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 662 OF 1999

GYLES J
SYDNEY
16 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 662 OF 1999

BETWEEN:	SABIR SAID KHALEL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GYLES
DATE OF ORDER:	16 AUGUST 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.        The applicant pay the costs of the respondent.

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 662 OF 1999

BETWEEN:	SABIR SAID KHALEL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GYLES
DATE:	16 AUGUST 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, Mr Sabir Said Khalel, arrived in Australia on 29 January 1999.  On 15 February 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”). On 4 March 1999, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa. On or about 10 March 1999, the applicant sought review of that decision by the Refugee Review Tribunal (“the RRT”). On or about 28 June 1999, the RRT affirmed the decision not to grant the applicant a protection visa.

2. On 5 July 1999, the applicant filed an application for an order for review in this Court.  The grounds of the application were:

   “1.that the decision involved errors of law being errors involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decisions, whether or not the error appears on the record of the decision

   2.that procedures that were required by the Migration Act 1958 or the regulation to be observed in connection with the making of a decision were not observed; specifically the applicant asserts that (put reasons)

   3.that the decision was an improper exercise of the power conferred by the Act or the regulations;”

   The application was filed by somebody claiming to be a friend of the applicant. 

3. On 15 July 1999, the matter came before the Court and the applicant appeared in person.  On that day, the Court made orders, inter alia, that:

   “…

   2.The applicant file and serve a statement of particulars and any affidavit material upon which he will rely on or before 12 August 1999.

   3.The applicant file and serve written submissions five working days prior to the hearing date. …” 

   No particulars, affidavits or submissions have been filed by or on behalf of the applicant in accordance with those orders. 

4. The applicant appears today unrepresented, albeit with an interpreter present, and does not seek leave to amend his application to give any further particulars of it or to otherwise comply with the orders made by the Court.  His explanation is recorded in the transcript of today’s proceedings.  In effect, it was that he did not know what was going on.

5. The respondent submits that the application pleads or alleges no case of error falling within the grounds of review to this Court.  That is plainly right and is no doubt the explanation for the order which was made on 15 July 1999 requiring further particularisation.  Furthermore, the applicant has filed no material in support of his case.  The only material he has sought to, and did, tender were some pages from the materials provided to him, presumably pursuant to an order which was made on 15 July 1999 that the respondent file and serve a bundle of Relevant Documents on or before 29 July 1999.  As has been pointed out by the solicitor for the respondent, those pages were before the RRT when it considered the matter. 

6. In these circumstances, it is not the task of the Court to assume the role of advising or acting for the applicant. The applicant simply propounds no case within the Act for consideration. In these circumstances, it is inevitable that the application must fail.

7. I should say, however, that I have read the decision of the RRT in order to familiarise myself with the case.  I did not read it with a view to detecting error, but it struck me as being a fair and well-reasoned rejection of a most unmeritorious application. 

8. The transcript will record what has happened today.  I have endeavoured to give the applicant the opportunity of correcting the defect in his proceedings but, unrepresented as he is, he is either unable or unwilling to do so.  In the circumstances, in view of the position taken by the respondent, I have no alternative but to dismiss the application and order that the applicant pay the costs of the respondent.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             23 August 1999

The Applicant represented himself.
Solicitor for the Respondent:	Mr M Allatt of the Australian Government Solicitor
Date of Hearing:	16 August 1999
Date of Judgment:	16 August 1999