M71 of 2003 v Minister for Immigration

[2004] FMCA 618

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M71 of 2003 v MINISTER FOR IMMIGRATION [2004] FMCA 618

MIGRATION – Protection visa – extension of time – whether to dismiss in absence of the Applicant for want of appearance or to dismiss substantive application.

Butuwanttudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684

Applicant: APPLICANT M71 of 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 1109 of 2003

Delivered on: 6 September 2004

Delivered at: Melbourne

Hearing Date: 6 September 2004

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr C Weerakoon

(Granted leave to withdraw)

Counsel for the Respondent: Ms Macdonnell

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent's costs fixed in the sum of $7500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1109 of 2003

APPLICANT M71 of 2003

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application the applicant who had previously been represented by solicitors acting for and on his behalf has failed to attend and appear at this hearing today.  Instead the solicitors on record have appeared and I have heard evidence from the solicitor indicating difficulties in contacting the applicant.  These proceedings were commenced in the High Court of Australia seeking an order nisi on 22 April 2003 and by order of Hayne J made in that court on 1 August 2003 the proceedings were remitted to the Federal Court of Australia.  On 7 October 2003 the proceedings were transferred to this court.

2. On 12 November 2003 the Registrar listed the matter for hearing this day and otherwise made an order that the respondent file and serve contentions of fact and law on or before 30 November 2003.  On a previous occasion when the matter was before Marshall J certain orders were made requiring the applicant to file and serve an amended application, supplementary court book and contentions of fact and law on or before 3 November 2003.  In fact the applicant's contentions of fact and law and amended application appear to have been filed on 5 November 2003.  There is some doubt as to whether or not the amended application was in fact served upon the respondent.

3. In any event, evidence was given by the solicitor on record for the applicant that an attempt has been made on a number of occasions to contact the applicant by telephone to advise the applicant that the proceedings were listed and that was by way of confirmatory advice as, according to the solicitor on record, he had communicated in writing to the last known place of address of the applicant in May this year that the hearing date had been fixed for this day.  Further evidence was given by the solicitor on record for the applicant that he had managed to contact the applicant this day advising him that the proceedings were listed, that the matter may proceed in his absence with the result that perhaps the application may be dismissed.  He received what could only be described as an unsatisfactory response of something like, "Do what you can."  It appeared that the applicant did not appear to care about the progress of this application.

4. The respondent relies upon contentions of fact and law and it is perhaps useful to simply set out the background details in relation to this application before considering whether or not the court should make an order dismissing the application based upon the respondent’s notice of objection to competency.  It seems to me that the court in a matter of this kind may consider the substantive merits of the matter and may do so having regard to the chronology of events and the nature of the application before it.  To the extent that I regard it as relevant, I would rely upon the decision of Gray J in the matter of Butuwanttudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684.

5. The applicant, a Sri Lankan national of Singhalese ethnicity, arrived in Australia on 7 March 2001 on a visitor visa.  On 3 April 2001 he applied for a protection visa.  On 4 June 2001 a delegate of the minister refused to grant the protection visa.  On 20 June 2001 the applicant lodged an application with the Refugee Review Tribunal (the RRT) for review of the decision to refuse protection visa and that decision was affirmed by the RRT on 10 January 2003.

6. It is clear to me that a proper reading of the RRT's decision, and in particular its findings and reasons which appear at page 105 of the court book, that the tribunal considered the claims and evidence before it in a manner which was open to it on the available material.  In particular, it had the opportunity of asking questions of the applicant in relation to the grounds upon which he claimed the benefit of a protection visa. 

7. It was not until 22 April 2003 that the applicant commenced proceedings in the High Court of Australia seeking an order nisi. 

8. The real issue before this court, however, is the extent to which it can entertain this application for an order nisi even based upon the amended grounds in the application.  In my view, having regard to the findings and reasons of the RRT, on a proper reading of those reasons the RRT considered the matter properly.  On the material before me I cannot see any basis upon which it could be claimed there is jurisdictional error.  It is therefore incumbent upon this court to then consider the competency of this application and in particular to consider whether or not the application has been brought within time.

9. Even if the court had power to extend time, which I am satisfied it does not in circumstances of this application, one would otherwise consider the issue of whether or not there has been any error of any kind which would justify judicial review.  In my view, there is no basis upon which judicial review could be undertaken in this matter.  There is no jurisdictional error identified.  I have looked at the amended application and the applicant's contentions of fact and law and in all the circumstances I am satisfied that the submissions made for and on behalf of the respondent, and in particular the submissions set out in the respondent's contentions of fact and law, are correct insofar as they relate to the issue of whether or not this court should embark upon judicial review of this application.  I am satisfied the court should not allow the application for the reasons I have given.

10. It seems appropriate to me in a case of this kind that I should not simply dismiss the application for want of appearance of the applicant because technically he has appeared through his solicitor this day who has in turn been granted leave to withdraw from the proceedings.  Hence, it is my view that the appropriate order in a similar fashion to the order made by Gray J in the decision of Butawituata to which I referred earlier, namely to simply make an order that the application be dismissed. 

11. It is appropriate that I fix costs in the sum of $7500.  I do so having regard to the fact that this matter commenced in the High Court, was transferred to the Federal Court and then ultimately transferred to this court.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  6 September 2004