MZWGB v Minister for Immigration
[2006] FMCA 925
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWGB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 925 |
| MIGRATION – Protection visa – Refugee Review Tribunal. PRACTICE AND PROCEDURE – Application for summary dismissal – whether res judicata applies – previous application dismissed without hearing – dismissed for non-appearance – summary dismissal. |
| Federal Magistrates Court Rules 2001, r.13.01 Migration Act 1958, s.417 |
| Somanader v Minister for Immigration and Multicultural Affairs (2000) FCA 1192 M211/2003 v Refugee Review Tribunal [2004] FCAFC 293 |
| First Applicant: | MZWGB |
| Second Applicant: | MZWGC |
| Third Applicant: | MZWGD |
| Fourth Applicant: | MZWGE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1060 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 21 February 2006 |
| Date of Last Submission: | 24 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Applicants: | In person |
| Solicitor for the Respondents: | Ms M. Ngo |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1060 of 2005
| MZWGB |
First Applicant
| MZWGC |
Second Applicant
| MZWGD |
Third Applicant
| MZWGE |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the court has before it a notice of motion filed by the First Respondent on 18 November 2005 seeking summary dismissal of an application of the Applicants. The Applicants' application had originally been filed in the High Court of Australia on 9 May 2005 and that application sought prerogative writs in relation to a decision of the Refugee Review Tribunal dated 29 March 2005. The Tribunal decision affirmed a delegate's decision refusing to grant to the Applicants protection visas.
The application in the High Court of Australia was remitted to the Federal Magistrates Court by order of the High Court of Australia on 15 August 2005. In the High Court the Applicants had relied upon an affidavit in support of the application sworn on 9 May 2005. I shall make reference to that affidavit in due course. It is appropriate to set out in brief terms the background of the proceedings leading up to the filing of the notice of motion by the First Respondent seeking summary dismissal. The background details appear to be set out briefly in an affidavit of Michael John Brereton sworn on 10 November 2005. The background may be summarised as follows:
·On 16 April 2004 the tribunal handed down its decision dated 29 March 2004.
·On 3 May 2004 the applicants, represented by a solicitor, filed an application for review of the tribunal's decision in the Federal Magistrates Court (proceeding number MLG 460 of 2004).
·On 19 November 2004, solicitors then acting for and on behalf of the applicants advised the first respondent's solicitors that instructions had been provided whereby the applicants "seek to withdraw the application and not to proceed".
It would seem that up to that point the parties were unable to reach agreement in relation to the question of costs. It is further apparent that the Applicants did not file a notice of discontinuance or seek the leave of the court to file a notice of discontinuance pursuant to Rule 13.01 of the Federal Magistrates Court Rules 2001 (the Rules). Given that the correspondence from the then solicitors for the Applicants was dated 19 November 2004 and that the application had been listed for hearing on 29 November 2004, then it is clear that the leave of the court would have been required for the Applicants to simply discontinue the proceedings.
On 29 November 2004 orders were made by the court in the following terms:
“1. The applicants' application filed on 3 May 2004 be dismissed.
2. The applicants do pay the respondent's costs fixed in the sum of $4,600.00.”
The order which appears on the court file in proceedings MLG 460 of 2004 refers to the Applicants being represented then by a person named "Mr Singh." It is common ground that that reference is an error. The error is also confirmed by a proper reading of the transcript of the proceedings which occurred on 29 November 2004.
It is perhaps relevant to refer to that transcript in order to gain an understanding and appreciation of the nature of the order made and the extent to which the application was considered by the court. The transcript reveals that proceedings commenced at 10.23 am on Monday, 29 November 2004. Apparently at the same time there were other unrelated proceedings called before the court. Those other unrelated proceedings were dealt with by the court and appear to involve discontinuance, and an issue of costs was dealt with by the court on that occasion.
The transcript, however, reveals some degree of overlap between the proceedings, as initially in the transcript reference is made to an applicant "MZGBW" the fourth Applicant, and then reference is made to applicant "MZWGE" which is one of the applicants in the present application. Ultimately, after referring to a notice of discontinuance in another matter, orders were made dismissing the application in that matter; namely the matter of “MZGBA”.
It would appear that Counsel then representing the First Respondent in this matter was asked by the court whether a list of names were available for MZWGB "through to MZWGE". Apparently the names were provided and those names were called. After the names of the Applicants were called, the following appears:
“HIS HONOUR: We’ve had the applicants in MZWGB through MZWGE called and there’s no appearance. What orders are you seeking there?
MS DAVIS: In this particular matter, your Honour, given the non-appearance we seek an order that the application be dismissed.
HIS HONOUR: Yes.
MS DAVIS: We also seek an order for costs in the sum of $4600, and again I’ve prepared an affidavit and a schedule of costs in support of that application.
HIS HONOUR: If you could pass that up.
MS DAVIS: I was advised by the applicant’s solicitor that the applicant didn’t intend to proceed to a substantive hearing 10 days before the hearing, so costs were quite significant on the respondent’s part.
HIS HONOUR: Yes. I’ll make an order:
1.That the application be dismissed.
2.That they pay costs fixed at $4600.
I notice with one of these this is the second time they’ve done that.”
The transcript thereafter appears then to relate back to the other matter and a discussion occurs about further orders that might be made in that matter. Hence it is evident to the court, based upon the extract of the transcript set out above, that effectively the court proceeded to dismiss the application based upon the non-appearance of the applicants. To that extent the order made may have more accurately referred to reliance by the court upon Rule 13.03A(c) of the Rules.
There is some confusion, however, concerning the characterisation of the orders made dismissing the application on 29 November 2004. The First Respondent has submitted that the matter had been dealt with in a substantive manner and not simply dismissed for non-appearance. I do not agree with that submission as the extract from the transcript of the proceedings clearly indicates that the matter was given brief attention and seems to be a proceeding whereby dismissal occurred due to non-appearance.
I do note, however, from the court file in matter MZ 460 of 2004, that an affidavit sworn by Ms Jacqueline Anne Davis on 29 November 2004 was relied upon, though the original not filed until the next day. Nevertheless, that affidavit refers to, in general terms, the costs. It is clear from the affidavit material before this court that at no stage did the Applicants through their solicitors consent in a formal sense to dismissal of the application, though dismissal of the application appears to have been clearly contemplated by the Applicants, and so much is evident from the affidavit of the applicant which had been filed in the High Court, referred to earlier in this judgment.
It is perhaps relevant to now set out from that affidavit of Ms Davis the following paragraphs:
“10. On 20 July 2004, the applicants’ solicitor telephoned me regarding the timetable he had proposed for the filing of further material. On the same date, I amended the proposed minutes and forwarded the revised proposed minutes to the applicants’ solicitor by facsimile for consideration.
11. On 21 July 2004, the parties attended a directions hearing before Registrar Efthim, at which timetabling orders were made for the further filing and service of material y the parties. The orders, inter alia, required the applicants to file and serve their contentions of fact and law by 27 August 2004.”
It will be clear from those paragraphs that the Applicants took the view that it would be preferable to terminate, either by withdrawal or presumably by dismissal, the pending application then before the Federal Magistrates Court. It is also clear from the affidavit material that the Minister responded to an application made pursuant to s.417 of the Migration Act 1958 (the Migration Act) on 22 April 2005 and that approximately two weeks later the Applicants filed the application for constitutional writs in the High Court of Australia.
To understand the reasons for the application pursuant to s.417 of the Migration Act, it is useful to note that the Tribunal in its decision dated 29 March 2004 states the following:
“Humanitarian considerations
The Tribunal notes the applicant’s evidence at the hearing that he no longer has any family members in Fiji; that he has nine or ten siblings and numerous other close relatives who are Australian citizens; that he no longer has a business in Fiji; and that the third and fourth named applicants (born in 1988 and 1991, respectively) have lived in Australia for the past seven years. It also notes advice from the applicant’s solicitors at the hearing that the third and fourth named applicants do not speak the Fijian language.
The Tribunal can only set aside a decision of a delegate of the Minister if it is satisfied that an applicant is a refugee within the meaning of the Refugees Convention. Nevertheless, under section 417 of the Act, the Minister has the power to substitute a more favourable decision for that of the Tribunal where she considers that it is in the public interest to do so.”
It is hardly surprising that the applicants upon reading that part of the Tribunal's decision then sought advice regarding an application pursuant to s.417 of the Migration Act and, upon receiving advice that an application of that kind would not be considered whilst there were pending proceedings in this court, decided to then not pursue the proceedings.
The First Respondent's representative does not dispute that in 2004, applicants for protection visas may well have been advised that the Minister would not consider an application pursuant to s.417 of the Migration Act whilst there were proceedings pending in a court. That approach, which seems to have been current at the time, is hardly surprising as it would obviously be inappropriate for the Minister to proceed to consider a s.417 application whilst proceedings seeking judicial review and/or prerogative writs in relation to a Tribunal decision were then pending.
However, to advance the consideration of the s.417 application, it would be apparent to any Applicant that the pending proceeding had to be terminated either by final decision of the court or by discontinuance or, as in this case, dismissal. In my view, on a proper reading of the First Applicant's affidavit and the transcript of the proceedings before the court on 29 November 2004, together with the affidavit material relied upon by the First Respondent, including correspondence from solicitors then acting for the Applicants, that it was the Applicants’ intention to terminate the proceedings pending in the court without proceeding to a hearing or adjudication and instead to pursue the s.417 application.
I further find on the material before me that the order made by the court on 29 November 2004, when considered in light of the transcript, would appear to have been an order dismissing the application for non‑appearance rather than dismissal by consent. That conclusion is relevant when considering one of a number of grounds now sought to be relied upon by the First Respondent in the notice of motion seeking summary dismissal. The notice of motion seeks dismissal on the following grounds:
·That the application discloses no reasonable cause of action.
·That the application is frivolous or vexatious.
·That the application is an abuse of process.
It should also be noted that further orders are sought in relation to costs and, in addition an order is sought in the following terms:
“An order that no further application by the applicant to review the decision of the second respondent dated 29 March 2004 and handed down 16 April 2004 shall be accepted for filing except with the leave of the court.”
Res Judicata
The First Respondent, in an outline of submissions filed 18 November 2004, submits that res judicata and/or estoppel should apply in the present case. It is submitted that the correspondence from the Applicants' then solicitors to the First Respondent's solicitors, referred to earlier in this judgment, provides clear consent to the dismissal order. It was argued the Applicants' solicitors did not seek to challenge a proposed dismissal order and that the only issue remaining was the question of costs. That was also indicated by the Applicant's statement in his affidavit sworn 9 May 2004, referred to earlier in this judgment.
The First Respondent submits that the dismissal of the previous application could properly be regarded as a dismissal by consent, and as a result the application is subject to res judicata and estoppel arising from the dismissal of the former application. It was argued that to the extent that it was dismissal by consent, it is now well established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after the contest. Support for that proposition was claimed to be found in the decision of the Federal Court in Somanader v Minister for Immigration and Multicultural Affairs (2000) FCA 1192 at [36].
In my view, having regard to my earlier finding, I am not satisfied that res judicata or estoppel applies in the present application. As I have indicated earlier in this judgment, I am satisfied that the application did not proceed to a hearing or adjudication. Although I am satisfied that the same cause of action is raised in the current application as appeared to have been raised in the earlier application dismissed by the court on 29 November 2004, I find that that earlier dismissal was effectively a dismissal for non-appearance. It was not what could be properly regarded as a consent dismissal.
Even if it were interpreted as a consent dismissal, it is clear on the affidavit material before me that that dismissal occurred without any adjudication whatsoever and was a dismissal which occurred as a result of the then reasonably held view of the applicants that it was necessary to terminate the pending proceeding to enable the Minister to proceed to determine the s.417 application. Hence in my view this is not a case, applying the relevant authorities to which reference has been made, where this court can be satisfied that res judicata or estoppel should apply.
Summary dismissal – other grounds
It is further submitted for and on behalf of the First Respondent that the court should summarily dismiss the application on the ground that it is either an abuse of process and/or an application where the Applicants have no reasonable prospect of success. In support of the submission that the application is an abuse of process and/or has no reasonable prospect of success, it is submitted that there is no demonstrable jurisdictional error in the Tribunal's decision.
It is noted that in its decision the Tribunal made a number of key findings ultimately against the application. The claim before the Tribunal was a relatively straightforward claim of persecution which essentially was a claim made by the First Applicant, though made on behalf of his family. The claim related to a belief that the Applicant was targeted by indigenous Fijians from 1997. The Applicant was a businessman who apparently ran a very successful business at a market.
In his claim the applicant refers to his house being the subject of a burglary and that he was assaulted. Police arrived after the incident and conveyed the applicant to hospital. He was told he would be provided with protection and that it would not happen again and that they would patrol the area of the Applicant's home. The Applicant claimed that this did not occur. A second burglary occurred at the Applicant's home. The police took fingerprints of what are described as four culprits, knew their names and interviewed them. However, it was claimed the police could not "get" those men.
The Applicant went to the police station about two weeks after the incident occurred and asked police officers why they had not caught the four men. He claims to have been told they would catch them. He then claims he also approached police about a week later to see whether they had made progress investigating the matter and was told the matter was still being investigated. He claimed not to know why the police had not followed up the matter and did not approach them again. The following reference appears in the Tribunal's decision:
The applicant was asked why he believed indigenous Fijians had committed these crimes against him. He responded that it was because he was doing well in his business. He was asked whether he believed that there were any other reasons they had targeted him. He responded that it was because of his Indian ethnicity. He was asked whether he believed that an indigenous Fijian who was doing well in business would be targeted by other indigenous Fijians. He responded that indigenous Fijians are not doing well in business; and, even if they were, they would not be targeted by other indigenous Fijians.
The applicant was questioned about the evidence in his protection visa application that the second named applicant had been attacked when she returned to Fiji to check on the family home. He responded that she returned to Fiji about two or three years ago and that indigenous Fijians threatened her at the market. She had been frightened because she had seen indigenous Fijians punch and kick the applicant at the market on a previous occasion.”
The Tribunal in its decision then makes reference to the movement records to the travels of the Applicant between Australia and Fiji between September 1997 and April 1998. The applicant claimed “he returned to Fiji in April 1998 to see whether it was safe for him to return to his business at the market.”
The Tribunal further notes:
“… While he was at the market, some indigenous Fijians knocked his hat off his head. He told some police officers about it and they wrote a report, but they told him they could not do anything because the indigenous Fijians had only taken his hat. …”
Reference was made to a claim by the Applicant that in addition to that incident, the president of the market vendors association told the Applicant not to resume his business at the market because the "same thing" would happen to him again. The Applicant claims to have learned that indigenous Fijians had been asking where he was during his absence from Fiji. The Applicant claimed that at the time he last returned to Australia, he believed that indigenous Fijians may kill him if he remained in Fiji.
In its decision the Tribunal states the following:
“TheTribunal advised the applicant that it found his evidence at the hearing to be truthful. It went on to explain to him that, nevertheless, it appeared the essential and significant reasons why indigenous Fijians had harmed him were financial or criminal reasons - as distinct from racial reasons. He responded that, foremost they had targeted him because of his Indian ethnicity; and secondly they had targeted him because he had been doing well in his business.”
The tribunal then referred to a DFAT Country Information Report, No. 348/02 - Current Security Situation, 2 December 2002 (CX70548) which provides:
“ … INDO FIJIANS, PARTICULARLY THOSE LIVING IN REMOTE AREAS, CONTINUE TO BE SUBJECT TO INCIDENTS OF LOW –LEVEL VIOLENCE, DUE TO A LOW POLICE PRESENCE AND CONTINUANCE OF POST-COUP THENIC TENSIONS BETWEEN INDIGENOUS FIJIANS AND INDO FIJIANS. CRIME LEVELS IN URBAN AREAS ARE GENERALLY HIGHER THAN IN RURAL AREAS AND INDO FIJIANS AND ASIANS ARE OFTEN TARGETS OF BURGLARY DUE TO A GENERAL EXPECTATION THAT THEY ARE MORE LIKELY TO KEEP JEWELLERY AND CASH ON THEIR HOME PREMISES. PRESS REPORTING INDICATES, DISTURBINGLY, THAT ‘HOME INVASION’ STYLE ROBBERIES, OFTEN VIOLENT, ARE ALSO INCREASING. INCREASINGLY, HOWEVER, THE MORE AFFLUENT FIJIANS LIVING IN URBAN AREAS ARE ALSO BEING TARGETED – A NEW TREND.
THE FIJI POLICE FORCE IS GENERALLY UNDER-EQUIPPED AND IS CURRENTLY FACING A SERIOUS SHORTAGE OF VEHICLES. THIS HAS BEEN AN ONGOING PROBLEM AND AFFECTS RESPONSE TIMES. IN THE 2003 BUDGET, THE FIJI GOVERNMENT DECREASED ITS ALLOCATION TO THE FIJI POLICE FORCE FROM FJD54.2 MILLION TO FJD53.2 MILLION DOLLARS.”
In its findings and reasons the tribunal states the following:
“The Tribunal accepts as authoritative DFAT’s report in December 2002 (CX70548). It therefore accepts that the Fiji police force is generally under-equipped, and that a serious shortage of police vehicles has affected “response times” It also accepts the applicant’s evidence at the hearing that he lodged five or six complaints with the police between about February 1997 and June 1997; and that those complaints related to indigenous Fijians having burgled his home, assaulted him and robbed him. It also accepts that the police took fingerprints from his home to investigate the burglary in February 1997; that the police attended his home after indigenous Fijians burgled it again about six weeks later; that the police identified the burglars by their fingerprints and interviewed them; and that the police made a written complaint about the applicant’s complaint to them when he returned to Fiji in April 1998 that indigenous Fijians had taken his hat.
In these circumstances, the Tribunal does not accept that the police ‘sided’ with indigenous Fijians against the applicant. Further, while the applicant was critical of the ‘response times’ of the police, and their failure to arrest the people who burgled his house or to investigate the theft of his hat in April 1998, the Tribunal finds that the positive steps the police took in response to his complaints demonstrated that they were they were a significant ‘presence’ in the applicant’s community; that they were reasonably efficient; and that they had an appropriate respect for the rule of law in Fiji. Consequently, the Tribunal finds that the applicant had access to effective or adequate State protection in Fiji, and will continue to have access to effective or adequate State protection in Fiji for the reasonably foreseeable future.
The persecution which an applicant fears must be for one or more of the reasons enumerated Article 1A(2) of the Refugees Convention - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to one or more of the reasons set out in Article 1A(2). However, persecution for multiple motivations will not satisfy the relevant test unless one or more than one of those reasons constitute at least the essential and significant motivation for the persecution feared: section91R(1)(a)of the Act.
The Tribunal finds that indigenous Fijians targeted the applicant for the essential and significant reason that they perceived him to be wealthy or financially successful. It accepts that they may also have targeted him because of his Indian ethnicity, although it does not accept that this was an essential and significant reason why they targeted him. The Tribunal refers to and accepts the applicant’s evidence that indigenous Fijians began to perpetrate property crimes and assaults against him shortly after his business at the market became very big and successful in January 1997. Further, it refers, and gives significant weight, to his initial response when asked why he believed indigenous Fijians had perpetrated those crimes, namely, that they had done so because he was doing well in his business. It also refers to DFAT’s report that “Indo-Fijians and Asians are often targets of burglary due to a general expectation that they are more likely to keep jewellery and cash on their home premises; and that ‘more affluent indigenous Fijians living in urban areas are also being targeted’.
Therefore, in accordance with section 91R(1)(a) of the Act, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted by indigenous Fijians for reasons of his Indian ethnicity.”
The First Respondent submitted that those findings of the Tribunal are free of any jurisdictional error in that the Tribunal considered and rejected the Applicant's claim. It was submitted that the claim of the Applicant had originally relied upon his religion, namely, being Hindu together with the fact that he was of Indian ethnicity. It was argued that the findings of fact by the Tribunal were reasonably open to the Tribunal and it could not be said to have failed to consider an integer of the claim.
Before the court it was further argued that in any event, during the course of its decision the Tribunal made a significant finding that the applicant had “access to effective state protection in Fiji and will continue to have access to effective or adequate protection in Fiji for the reasonably foreseeable future”.
That finding was conclusive and fatal to the application even if any other findings by the Tribunal may be claimed to be findings attracting judicial review on the basis of jurisdictional error.
The applicant, who was unrepresented, relied upon written submissions before this court. In those submissions the Applicant challenged the Tribunal's findings and reiterated that both he and his family found it impossible to continue to live in Fiji as Indians and feared for their lives and safety. He further referred to accepting the advice provided by his then adviser in relation to pursuing the s.417 application. Reference was made to the risk of all Indians, whether rich or poor, residing in Fiji, based upon their religion and ethnicity.
The Applicant also claims that reference was made to his children and that the Tribunal did not take that situation into account, it did not take evidence from the children or ask about their own situation if they had a fear of returning to Fiji, nor did it ask the Applicant what he and his wife might face in the event that they were to be returned to Fiji in the current climate. Rather, it was argued, the Tribunal simply said that it understood all of that but that they were matters which could be considered by the Minister on humanitarian grounds.
It was argued by leaving it to the Minister, the Tribunal failed to consider the situation of all the Applicants as a family and the difficulties they would face upon return to Fiji. Further criticism was made of the extent to which the police would be able to provide protection to the Applicant and his family should they return to Fiji.
Prior to concluding the hearing, the First Respondent requested an opportunity to make further submissions concerning the issue of a delay in bringing the application in the High Court. It was argued there had been a 13-month delay between the date of the decision and filing the application in the High Court. The First Respondent's representative sought an opportunity to refer to relevant authorities relating to that delay, and in particular authorities which specifically refer to the issue of whether it is reasonable for Applicants to delay an application in a court pending consideration by the Minister of an application pursuant to s.417 of the Migration Act. The First Respondent and the Applicants were given an opportunity to file and serve supplementary submissions in relation to that issue.
The First Respondent in supplementary submissions filed 24 February 2006 noted that the application in this instance has been made 13 months after the decision of the Tribunal and that no reasons have been provided by the Applicant in support of an extension of time. Any delay which arose as a result of the Minister considering an application under s.417 is not an adequate explanation for delay according to the First Respondent’s submissions (M211/2003 v Refugee Review Tribunal [2004] FCAFC 293 at [22] – [24], [36]).
Reasoning
In my view the First Respondent’s submissions in relation to whether or not the application should be summarily dismissed are correct. On a proper reading of the Tribunal’s decision I do not see any reasonable prospect of success. On the material before me I am not satisfied that there is any jurisdictional error. The Tribunal considered the claims raised by the Applicant and rejected those claims.
The First Respondent noted correctly that even if the rejection of the Applicant’s claims could not be sustained the Tribunal then made a further fatal finding to the application by deciding that in any event the Applicant had access to effective state protection in Fiji and would continue to have access to that protection for the reasonably foreseeable future. I accept that that finding was conclusive and as I indicated fatal to the application.
The Applicants written submissions in my view seem to repeat the claims made before the Tribunal which in my view were properly considered and determined free of jurisdictional error.
Clearly the Tribunal was concerned about the humanitarian issues arising in this instance but in doing so that does not mean that it has failed to discharge its own duty according to law.
Whilst I am satisfied, as indicated earlier in this judgment that res judicata does not apply, it is my concluded view that it will be appropriate to summarily dismiss the application on the basis that there is no reasonable prospect of success given the absence of any jurisdictional error.
To the extent that I may be required to do so and in the absence of any adequate explanation I would also refuse any application for extension of time on the basis that there are no reasonable grounds advanced save and except for the suggestion that some delay occurred awaiting the Minister’s decision following the application pursuant to s.417 of the Migration Act. I accept that in this instance that delay alone does not justify the granting of an extension of time.
Conclusion
It follows for those reasons that the application should be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 and that the Applicant should pay the First Respondent’s costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 30 June 2006
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