Mushulov v Minister for Immigration and Multicultural Affairs

Case [2000] FCA 1283

FEDERAL COURT OF AUSTRALIA

Mushulov v Minister for Immigration & Multicultural Affairs [2000] FCA 1283

ALEXANDER MUSHULOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 542 OF 2000

LINDGREN J
5 SEPTEMBER 2000
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 542 OF 2000

BETWEEN:

ALEXANDER MUSHULOV
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

5 SEPTEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

3.The respondent serve on the applicant a sealed copy of orders 1 and 2 and a copy of Order 35 rule 7 of the Federal Court Rules.

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 542 OF 2000

BETWEEN:

ALEXANDER MUSHULOV
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

LINDGREN J

DATE:

5 SEPTEMBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. There is before the Court an application for a review of a decision of the Refugee Review Tribunal given on 12 April 2000 affirming a decision of a delegate of the respondent Minister refusing the applicant's application for a protection visa. 

  2. The applicant commenced this proceeding on 24 May 2000.  In his application he stated the grounds of the application as follows:

    “Not enough research into my case.  Everything I tried to prove and show about my case is not all.  There are more incidents to my case and I want to show evidence”.

  3. The application was accompanied by a lengthy “statutory declaration” going to the background facts.  Clearly, the applicant did not have the benefit of legal assistance in preparing the application.  At the first directions hearing on 6 July 2000 I ordered that he file and serve an amended application by 17 August and fixed the application for final hearing today at 2.15pm. The applicant has not filed an amended application and has been called outside the Court this afternoon and has not appeared.

  4. When the application was before the Court for directions on 6 July I informed the applicant that the form of application which he had filed was deficient for not identifying a ground of review permitted this Court by subs 476(1) of the Migration Act 1958 (Cth). As well, I informed him that if the position remained as it was, that is, that he was asking the Court to review the Tribunal's decision on the merits and to receive evidence related to the merits, his application would fail.

  5. Ms Watson of the Australian Government Solicitor's Office has appeared for the respondent Minister this afternoon and asks that the application be dismissed.  It is clear that I have power to dismiss it under Order 32, rule 2 and the question is whether I should do so.  Because an order of dismissal would be made in the absence of the applicant, he would be entitled to apply for a setting aside of the order of dismissal under Order 35, rule 7, even after the order of dismissal is entered, although, on the information before me, apparently with no prospect of success.

  6. I have read the Tribunal’s Reasons for Decision.  There is no obvious ground of review suggested by them.  I cannot say that if the applicant were legally represented a ground of review would not be brought to light but my reading of the Reasons for Decision does not suggest any.  Accordingly, no hardship will be done by a dismissal of the application.  The applicant seems to seek a review on the merits and on the basis of his statutory declaration, but the Court cannot engage in such a process.

    Conclusion

  7. For the above reasons, it seems appropriate that the application be dismissed.  The orders of the Court are that:

    1.   The application be dismissed.

    2.   The applicant pay the respondent's costs.

    3.The respondent serve on the applicant a sealed copy of orders 1 and 2 and a copy of Order 35 rule 7 of the Federal Court Rules.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             9 September 2000

Counsel for the Applicant: The Applicant appeared in person.
Solicitor for the Respondent: Ms D Watson of the Australian Government Solicitor’s Office
Date of Hearing: 5 September 2000
Date of Judgment: 5 September 2000
Details
AGLC
Mushulov v Minister for Immigration and Multicultural Affairs [2000] FCA 1283
Case
[2000] FCA 1283
Decision Date

CaseChat Overview and Summary

Mushulov brought proceedings in the Federal Court against the Minister for Immigration and Multicultural Affairs, challenging the legality of his visa cancellation. The matter was ultimately dismissed by the Court, with the Court holding that there were no grounds for review as suggested by the Tribunal’s reasons. The applicant sought a review on the merits and on the basis of his statutory declaration but the Court could not engage in such a process. The Court concluded that no hardship would be done by a dismissal of the application.

The central legal issue before the Court was whether there were any grounds of review suggested by the Tribunal's reasons for decision that would warrant the Court granting the application for judicial review. The Court was required to consider whether the Tribunal's decision contained any obvious or suggested grounds of review that would permit the Court to engage in a substantive review of the decision. The Court also had to determine whether it was appropriate to dismiss the application without a hearing, considering the lack of suggested grounds of review and the absence of legal representation for the applicant.

The Court found that the Tribunal’s reasons did not suggest any obvious grounds of review. The Court noted that while it could not rule out the possibility that a ground of review might be identified if the applicant were legally represented, there were no such indications in the Tribunal’s reasons. The Court held that it was not appropriate to engage in a substantive review of the decision on the basis of the applicant’s statutory declaration alone. The Court therefore dismissed the application and ordered that the applicant pay the respondent's costs and that the respondent serve on the applicant a sealed copy of the orders and a copy of Order 35 rule 7 of the Federal Court Rules.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

3. The respondent serve on the applicant a sealed copy of orders 1 and 2 and a copy of Order 35 rule 7 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LINDGREN J
I have read the Tribunal’s Reasons for Decision. There is no obvious ground of review suggested by them. I cannot say that if the applicant were legally represented a ground of review would not be brought to light but my reading of the Reasons for Decision does not suggest any. Accordingly, no hardship will be done by a dismissal of the application. The applicant seems to seek a review on the merits and on the basis of his statutory declaration, but the Court cannot engage in such a process.Conclusion For the above reasons, it seems appropriate that the application be dismissed. The orders of the Court are that:1. The application be dismissed.2. The applicant pay the respondent's costs.3.The respondent serve on the applicant a sealed copy of orders 1 and 2 and a copy of Order 35 rule 7 of the Federal Court Rules.

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

Full text does not contain this section.