Orfanou v Minister for Immigration & Multicultural Affairs

[2000] FCA 934

FEDERAL COURT OF AUSTRALIA

Orfanou v Minister for Immigration & Multicultural Affairs [2000] FCA 934

IOANNIS ORFANOU & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 196 OF 2000

HELY J
29 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 196 OF 2000

BETWEEN:

IOANNIS ORFANOU
FIRST APPLICANT

VICTORIA ORFANOU
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

29 JUNE 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Application be dismissed with costs.

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 196 OF 2000

BETWEEN:

IOANNIS ORFANOU
FIRST APPLICANT

VICTORIA ORFANOU
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	HELY J
DATE:	29 JUNE 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an order of review of a decision given of 27 January 2000 by the Migration Review Tribunal (“MRT”) in relation to application by the applicants for the grant of a bridging visa.  The MRT affirmed the decision refusing to grant that visa.  The evidence establishes that a copy of that decision was served upon the applicants on 28 January 2000.  The evidence to that effect is less than perfect as it consists of a facsimile transmission dated 28 January 2000 which has been completed with the date and time of service but without any indication as to who effected service.

2. The objection to competency was lodged in a timely manner.  On 23 March 2000 Registrar Quinn directed that the applicants file and serve any affidavits in respect of the respondent's Notice of Objection to Competency on or before Friday 7 April, but no such affidavits have been filed.  The hearing of the objection to competency has been adjourned on more than one occasion to suit the applicants and it was again listed for hearing this morning.  Ms Orfanou appeared this morning to represent herself and her husband.  Her husband is not here and she says that he is sick.  She tells me that as the application relates to a bridging visa, and as she and her husband since the lodgment of the application have been granted a bridging visa, neither she nor her husband wishes to proceed with the application.

3. In any event, it seems to me that the application is incompetent because it was lodged outside the time prescribed by s 478(1)(b) Migration Act 1958 (Cth). That is so whether one proceeds upon the basis that Regulation 5.03 is valid and applies to service upon detainees, or whether one proceeds upon the basis that it is either invalid or of no application to service on such persons. That being so, the only issue before me this morning, in substance, is an issue as to costs. I can see no reason why an order ought not be made that the application should be dismissed with the applicants to pay the Minister's costs.

4. Ms Orfanou once more sought an adjournment of these proceedings in order to obtain legal advice.  It seems to me that the applicants have had a number of opportunities to obtain legal advice, I am not satisfied that there would be any useful purpose in adjourning these proceedings once more and increasing the costs to give the applicants yet one more opportunity of doing so.  I therefore order that the application be dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             11 July 2000

Ms Orfanou (the second applicant) appeared in person on behalf of both applicants
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 June 2000
Date of Judgment:	29 June 2000