Pimpinit v Minister for Immigration and Multicultural Affairs

[2001] FCA 347

FEDERAL COURT OF AUSTRALIA

Pimpinit v Minister for Immigration & Multicultural Affairs [2001] FCA 347

PUNYISA PIMPINIT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 62 of 2001

SACKVILLE J
SYDNEY
28 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 62 OF 2001

BETWEEN:	PUNYISA PIMPINIT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	28 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs.

3.   The Registrar be directed to send a copy of this judgment to the Migration Agents Registration Authority.

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 62 OF 2001

BETWEEN:	PUNYISA PIMPINIT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	28 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter before the Court is, in form, an application for an order of review of a decision made by the Refugee Review Tribunal (“the Tribunal”) on 30 November 2000. On that date, the Tribunal affirmed a decision of a delegate of the respondent (“the Minister”) not to grant the applicant a protection visa. When the matter was called for hearing today, there was no appearance for the applicant. 

2. An application has been made by Mr Cureton, who appears on behalf of the Minister, that the proceedings be dismissed by reason of the non-appearance of the applicant, pursuant to Federal Court Rules, O 32 r 2.  In support of this application, Mr Cureton has sought to rely upon an affidavit sworn by him and the material contained in the “Green Book” of relevant documents prepared on behalf of the Minister.

3. The background to the proceedings is as follows. On 15 September 2000, an application for review of the Minister’s decision to refuse the applicant a protection visa was lodged with the Tribunal. The applicant was invited by the Tribunal, pursuant to s 425 of the Migration Act 1958 (Cth) (“Migration Act”), to appear before it.  She advised, however, that she did not wish to attend a hearing. Accordingly, the Tribunal determined her application for review on the papers.

4. It appears that a firm of solicitors, Low & Associates, represented the applicant at some stage during the course of the proceedings before the Tribunal. Low & Associates are apparently registered as migration agents pursuant to Part 3 of the Migration Act.

5. As I have stated, the Tribunal affirmed the decision not to grant a protection visa. The proceedings in this Court were instituted by an application filed on 19 January 2001. On the face of it, that application is signed by the applicant personally. A directions hearing was held in this Court on 1 March 2001. The applicant did not appear.

6. A person named Barbara Nguyen, who said she was a friend of the applicant, attended and sought leave to represent the applicant at the directions hearing. At that time, Ms Nguyen informed the Court that the applicant was ill and had asked her to attend in place of the applicant.  Ms Nguyen produced a letter, apparently signed by the applicant, which annexed several documents and consented to Ms Nguyen representing the applicant at the directions hearing. In accordance with orders made at the directions hearing, the Minister's solicitors caused a letter to be sent to the applicant at her address for service informing her of the orders made at the directions hearing. These included an order directing that the matter be heard today.

7. On 21 March 2001, the Minister's solicitors received a letter from the Tribunal indicating that the applicant had lodged a freedom of information request with the Department of Immigration and Multicultural Affairs.  A firm other than Low & Associates represented the applicant in relation to her freedom of information request.

8. The Minister's solicitors very sensibly made contact with the solicitors acting on behalf of the applicant in relation to the freedom of information request. The latter advised the Minister's representatives that they were unaware that the applicant had instituted Federal Court proceedings until the Department had supplied material in response to the freedom of information request. The applicant's current solicitors subsequently informed the Minister's representatives that the applicant was unaware that Federal Court proceedings had been instituted in her name and had never authorised anyone to commence those proceedings on her behalf.

9. The applicant's solicitors subsequently sent a letter to the Minister's representatives.  That letter states as follows:

   “1.  We have not represented the applicant in respect of applications lodged with DIMA, the Refugee Review Tribunal or the Federal Court.

   2. The applicant first consulted us on 19 February 2001 to seek information as to her current status in Australia and we subsequently made a request for her file under the Freedom of Information Act.

   3. It was only after we obtained her file under the Freedom of Information Act that we discovered that proceedings had been instituted in her name in the Federal Court.

   4.  We informed the applicant of the Federal Court proceedings and she instructed us that she had no knowledge that such proceedings had been instituted and had never authorised anyone to act on her behalf in respect of such Federal Court proceedings.

   5.  The applicant speaks virtually no English and all communications we have had with her have been through a Thai speaking employee of our office.  It is not our intention to act on behalf of the applicant in respect of the Federal Court proceedings but we provide you with this information at her request.”

10. The Minister's solicitors subsequently contacted Low & Associates and asked to speak to Barbara Nguyen concerning the present proceedings. The Minister's solicitors subsequently received a telephone call from a person who identified herself as Ms Nguyen. In that telephone conversation the person who so identified herself said words to the following effect:

    “The applicant wishes to withdraw her Federal Court proceedings. The applicant is writing a letter to the Court to indicate this. I will ask the applicant to contact you.”

11. The Minister's solicitors later spoke to the applicant's present solicitors who stated that arrangements would be made for the applicant to sign consent orders for the proceedings in this Court to be dismissed.  Since the consent orders were not forthcoming, the Minister's solicitors sent a letter by courier on 27 March 2001 to the applicant at her address for service enclosing consent orders and indicating that the hearing was to take place today at 10.15 am. It appears that this letter could not be delivered because the courier was informed by the present occupiers of the house that the applicant no longer resides at the address.

12. The circumstances that I have outlined indicate either that the applicant did not authorise the institution of these proceedings or, alternatively, that she did authorise the proceedings but has decided not to persist with them. In either case, given that she has not appeared today, the appropriate course is to order that the application be dismissed.

13. I think that an order should be made that the applicant pay the Minister’s costs. If the applicant did not authorise the proceedings in her name she could have avoided a costs order by signing consent orders dismissing the proceedings.  She chose not to take that course (at a time when she was legally represented) and additional costs were incurred on behalf of the Minister.

14. In my view, a copy of this judgment should be sent to the Migration Agents Registration Authority, which has responsibility, inter alia, for monitoring the conduct of registered agents in their provision of immigration assistance and of lawyers in their provision of immigration legal assistance: see Migration Act, s 316(1)(b).  In making this direction, I make it clear that I have formed no view about responsibility for the circumstances outlined earlier in this judgment. Neither Low & Associates nor Ms Nguyen has had the opportunity to explain their involvement, if any, in the institution of these proceedings.  Nor am I in a position to make findings about whether the proceedings were instituted without the applicant’s authority.

15. There is, however, an issue that I think warrants further investigation. It is for that reason that I direct the Registrar to send a copy of the judgment to the Migration Agents Registration Authority.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:            2 April 2001

Solicitor for the Respondent:	Mr N Cureton appeared on behalf of Blake Dawson Waldron
Date of Hearing:	28 March 2001
Date of Judgment:	28 March 2001