M64 of 2004 v Minister for Immigration

[2005] FMCA 384

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M64 of 2004 v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 384

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

Migration Act 1958 (Cth)

Applicants: APPLICANT M64of 2004

First Named Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Named Respondent: MR ADOLFO GENTILE SITTING AS THE REFUGE REVIEW TRIBUNAL & MR STEVE KARAS IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL

File No: MLG 1512 of 2004

Delivered on: 2 March 2005

Delivered at: Melbourne

Hearing Date: 2 March 2005

Judgment of: Riethmuller FM

REPRESENTATION

Counsel for the Applicants: No appearance

Counsel for the Respondents: Mr Brereton

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The applicants’ application be dismissed.

2. The applicants do pay the respondent’s costs fixed in the sum of $2,000.00.

3. The applicants not commence further proceedings without leave of a Court with appropriate jurisdication.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1512 of 2004

APPLICANTS M64 of 2004

Applicants

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Named Respondent

and

MR ADOLFO GENTILE SITTING AS THE REFUGE REVIEW TRIBUNAL & MR STEVE KARAS IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Second Named Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application by the applicant for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’).  This is not the first time that the applicant has brought such an application.  A short history of the matter is important in this case.

2. On 15 November 2002 the RRT made a decision dismissing the applicant's claim for a protection visa.  Significantly, the RRT did not accept the versions of events provided and stated also that even if they did accept the versions of events, they were not satisfied that the applicants circumstances would nonetheless show a real chance that he would face persecution for reasons of alleged political opinion now or in the foreseeable future should he be returned to India, and therefore he did not have a well‑founded fear of persecution for a convention reason.  This decision was the subject of an application in the High Court for judicial review which was remitted to the Federal Magistrates Court. The matter was then heard and determined by Bryant CFM (as she then was) on 19 February 2004.  The applicant did not attend for his hearing on this occasion.

3. The applicant sought an extension of time to appeal on 4 March 2004.  On 18 March 2004 the matter came before Merkel J of the Federal Court in the appellate jurisdiction, at which time the application was dismissed for non attendance. 

4. The applicant then sought an order nisi in the High Court's original jurisdiction on 2 April 2004.  The application for the order nisi is in largely similar terms to the original application in this court.  Significantly, the application for an order nisi does not particularise the grounds in a way that allows one to identify the true nature of the complaint that the applicant has with respect to the original decision.  This application for an order nisi was remitted by consent to the Federal Magistrates Court on 17 September 2004.

5. On 19 December 2004 the respondent wrote to the applicant advising that the respondent was of the view that this was an abuse of process and offered to settle the proceedings on the basis that the application be withdrawn and there be no order as to costs.  No response was received.  The matter came before a registrar on 2 February 2005 and the applicant did not attend.  The matter was then listed in the noncompliance list.  The applicant has been given notice at his address for service.

6. In this matter I can see no basis for the application that is currently before the court, at least to the extent that one can divine what the application is about from the terms of it.  Having regard to the facts and circumstances, I am satisfied that this application is an abuse of process and that the applicant took no steps to properly participate in the proceedings on the last occasion and appears to have taken no steps to properly participate in the proceedings on this occasion.  I therefore dismiss the application.

7. Given the history of the matter, I propose making an order that the applicant not bring further proceedings without leave.

8. I also find that it is appropriate that the applicant pay the respondent's costs, which, having regard to the nature of the matter, I fix at $2,000.00.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: 

Date: