Pitman v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 776

FEDERAL COURT OF AUSTRALIA

Pitman v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 776

BURN PITMAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 718 OF 2005

EMMETT J
1 JUNE 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:	1 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the proceeding be dismissed;

2.the applicant pay the respondent’s costs in the sum of $500.

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:	1 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant was the holder of a class 444 Special Category visa. On 3 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 appellant sought review of that decision by the Administrative Appeals Tribunal (‘the Tribunal’). On 15 April 2005, the Tribunal affirmed the decision under review. On 6 May 2005, the applicant filed an application in this Court seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision.

2. By his application, the applicant asserted that the Tribunal fell into jurisdictional error by failing to afford the applicant procedural fairness in that he was served with a bundle of paperwork less than two days prior to the hearing.  The application also asserted that:

   ‘the Tribunal failed to apply the correct test, constructively failed to exercise its jurisdiction, and failed to address by the applicant in that it did not consider whether in light of the applicant’s being deported that he would deprived of his constitutional rights to remain with his family, all of whom are resident in Australia.’

3. The appellant is apparently a national of New Zealand, although he has spent much of his life in Australia.  The Tribunal, in detailed reasons, concluded that the evidence indicated that there are substantial factors against the applicant, some of them serious, and there is nothing in his favour.  The Tribunal concluded:

   ‘This is quintessentially not a case in which the discretion can be exercised in favour of the applicant and the decision under review must, accordingly, be affirmed.’

4. The applicant is presently in detention.  The proceeding was listed for directions on 25 May 2005, but a message was received by the Court that the applicant could not attend because he was undertaking medical treatment and the hearing was vacated.  When the matter was called on for directions today, there was no appearance for the applicant.  The solicitor for the Minister indicated that he had communicated by telephone with the applicant, who indicated that he had no intention of attending.  The Minister tendered a facsimile communication, received from the applicant, saying:

   ‘To whom it may concern:  I, Burn Pitman, would like to pull my appeal and go back to New Zealand.’

5. In the circumstances, the Minister asks that the proceeding be dismissed summarily.  Under O 35A r2(1)(b) of the Federal Court Rules, an applicant is in default if the applicant fails to attend a directions hearing.  Under O 35A r 3(1)(a), if an applicant is in default, the Court may order that the proceeding be dismissed as to the whole of the relief claimed by the applicant.

6. The proceeding appears to me to have no substance at all, and there is no basis on the material before me to think that there might be any prospect of success in the proceeding.  In all the circumstances, it is appropriate to accede to the Minister’s application for summary dismissal of the proceeding.  The Minister asks for her costs and asks that the Court assess the cost in the sum of $500.  In the interests of saving additional costs, it appears to me to be appropriate to accede to that request. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             9 June 2005

No appearance for the Applicant.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 June 2005
Date of Judgment:	1 June 2005