Pitman v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1261

FEDERAL COURT OF AUSTRALIA

Pitman v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1261

BURN PITMAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 718 OF 2005

EMMETT J
30 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD718 OF 2005

BETWEEN:	BURN PITMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	30 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the notice of motion filed on 21 June 2005 be dismissed;

2.the applicant pay the respondent’s costs of the motion.

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	NSD718 OF 2005

BETWEEN:	BURN PITMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	30 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 1 June 2005, for reasons given on that day, I ordered that the applicant’s application be dismissed.  By notice of motion, filed on 21 June 2005, the applicant seeks an order setting aside that order.

2. The applicant was born in New Zealand and first entered Australia in 1986.  He departed Australia in 1988 and returned again in 1989.  He departed Australia again in January 1994 and returned later that month.  He departed Australia in December 1995 and returned in March 1996.  At that stage, the applicant was 16 or 17 years old.

3. He was the holder of a Class 444 Special Category Visa. On 1 February 2005, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), made a decision cancelling the visa, pursuant to s 501 of the Migration Act 1958 (Cth) (‘the Act’). The reason for doing so was the applicant’s very substantial criminal record.

4. The applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (‘the Tribunal’). On 15 April 2005, the Tribunal affirmed the delegate’s decision. The applicant then commenced a proceeding in this Court on 6 May 2005, seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision. In that proceeding, the applicant claimed that the Tribunal failed to afford him procedural fairness, in that he was served with a bundle of paperwork less than two days prior to the hearing and he was therefore not able to conduct his case properly, seek proper legal advice or call the appropriate witnesses.

5. No evidence was filed in support of the application.  In particular, there was no evidence concerning the alleged circumstances that were claimed to give rise to procedural unfairness.  The only affidavit filed with the application was one in which the applicant asserted that he was unrepresented and requested an order that he be referred to a legal practitioner on the pro bono panel for legal assistance.

6. The application was listed for directions on 25 May 2005.  However, that hearing was vacated at the request of the applicant because of his illness at that time.  A message was received by the Court that he could not attend because he was undertaking medical treatment.  The matter was adjourned to 1 June 2005.  When the matter was called on for directions on that day there, was no appearance for the applicant.

7. The solicitor for the Minister indicated that there had been a telephone communication with the applicant, who had indicated he had no intention of attending the hearing.  The Minister tendered a facsimile communication received from the applicant, which said:

   ‘To whom it may concern,

   I, Burn Pitman, would like to pull my appeal and go back to New Zealand.’

   In the light of that circumstance, the Minister asked that the proceeding be dismissed summarily and as I have said, for the reasons that I then gave, I acceded to the Minister’s application.

8. The motion to set aside that summary dismissal was supported by an affidavit sworn by the applicant on 17 June 2005.  Apart from referring to the dismissal on 1 June, the affidavit said:

   ‘4.       At this time, I did not have the benefit of having any legal advice.

   5.Having now had the benefit of legal advice, I now make this application for the matter to be relisted for a hearing.’

9. When the matter was called on today, the applicant appeared in person.  He asserted from the bar table that he had been receiving assistance from someone in the Villawood Detention Centre who had been removed some two and a half to three weeks ago.  He said that that person had all his papers and that he had been trying to sort out the papers but had been unable to do so.  He asked for the matter to be adjourned to enable him to sort out his papers and to get a lawyer.

10. When asked why he had indicated previously that he did not wish to continue, he said that that was his decision but that he had changed his mind because his mother said that he should make a further application.

11. The solicitor for the Minister also asserted from the bar table that, notwithstanding the assertions by the applicant, he had been provided with all relevant documents in relation to his application to the Tribunal in February 2005.  The bundle of documents that was provided to him two days or so before the Tribunal hearing was an additional copy, together with an index to the documents.

12. There is nothing before me to indicate that the applicant asked the Tribunal for an adjournment to enable him to give further consideration to any documents, or for any other reason.  As I said on 1 June 2005, a reading of the reasons of the Tribunal suggests that there was no substance at all in the applicant’s complaint about the Tribunal’s decision.  The applicant was unable today to indicate any submission that he would wish to make to the Tribunal as to why the exercise of discretion by the Tribunal should be different.  The Tribunal, in its reasons, concluded that the evidence as a whole demonstrated factors as against the applicant, some of which was serious. The evidence, however, demonstrated nothing in the applicant’s favour.

13. It is apparent that the applicant, as at 1 June 2005, had decided to abandon any challenge to the Tribunal’s decision based on want of procedural fairness.  Nothing has happened since then to indicate a justification for wishing to pursue a challenge to the Tribunal’s decision, other than a change of heart.  It is not suggested that other material has become available.  Furthermore, there has been no evidence of the fresh legal advice to indicate that a challenge may be sustainable.

14. There must be an end to litigation.  Certainly, it is unfortunate for somebody in the applicant's position who has no representation.  It is, in a sense, also unfortunate that somebody who has spent most of his life in Australia should not be permitted to continue to do so.  That, however, is not a matter for the Court. I am not persuaded that any basis has been put forward for permitting the applicant to revive a proceeding that, on the face of it, has no substance in any event.

15. Accordingly, I consider that the application before me should be dismissed.  I should say that the form of the motion is not entirely clear. It is in the following terms:

    ‘The applicant will seek directions moving the court for orders seeking that the orders of his Honour Mr Justice Emmett of 1 June to summarily dismiss the applicant's appeal by consent of both parties and the respondent.’

    That is to say, the prayer for relief does not actually claim anything.  I would treat it as either an application to rescind the interlocutory order that I made for dismissal or, alternatively, an application for leave to appeal.  However, it should, in my opinion, be dismissed. 

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

Associate:

Dated:            8 September 2005

The applicant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 August 2005
Date of Judgment:	30 August 2005