Prodan v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1045

FEDERAL COURT OF AUSTRALIA

Prodan v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1045

MIGRATION – judicial review – refusal of humanitarian visa – claim for release from detention – no appearance of applicant at first directions hearing – application without merit – application dismissed with costs

Migration Act 1958 (Cth)

Federal Court Rules O 10 r 3(2)

ALICE ISABELLA PRODAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1131 OF 2004

FRENCH J
6 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1131 OF 2004

BETWEEN:	ALICE ISABELLA PRODAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	6 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

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	NSD 1131 OF 2004

BETWEEN:	ALICE ISABELLA PRODAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	6 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

FRENCH J:

1. This is an application, filed on 28 July 2004, in the name of Alice Isabella Prodan who is a minor and whose father, Ilie Julius Prodan, is designated on the application as her representative.  The application names the Minister for Immigration and Multicultural and Indigenous Affairs as respondent.  The terms of the application are as follows in the relevant parts:

   ‘1)I, I.J. Prodan, the legal guardian for the Minor Applicant, seek an order of review of the decision of the Minister of Immigration to REFUSE to exercise her power, to grant a HUMANITARIAN VISA for the Child Alice Isabella Prodan- born 09.09.91 decision made on 2 June 2004 communicated to her legal guardian first on 15.07.2004.

   2)I apply for an oral hearing before a jury of the Federal Court at Sydney IN EMERGENCY to have the possibility to explain all the facts and circumstances of the illegal activities made by DIMIA Officers with abuse and excessive us (sic) of power including; illegal arrest and detention, deportation on 2 cases, 1 attempt to deportation to Germany, separation from her parent and so on.

   3)I seek an Order to release the MINOR CHILD within 24 hours of the date hereof, from Detention Centre Villawood to avoid further physical and psychological damage to the child and to have access to her school at Dimbulah and to her private property- house and land, situated in Dimbulah Queensland.’

2. There is a supporting affidavit sworn by Mr Prodan who makes reference to various events involving dealings between the Department, the Minister and himself and his daughter.  The matter came on for a first directions hearing today, however there was no appearance by Mr Prodan and his daughter. 

3. The matter was listed at the same time as a Full Court appeal in which both were appellants.  Neither appeared at the Full Court hearing and the Court had received previously a notice of adjournment which in effect indicated that Mr Prodan and his daughter could not appear before the Court on 6 August.  In the Full Court proceedings an affidavit was filed sworn by Ziad Chami, a solicitor acting for the Minister and was read, and was accepted as further evidence of Mr Prodan's intention not to appear in Court today.

4. On the face of it the present application does not disclose any proper basis for invoking the jurisdiction of the Court.  It appears to revisit matters which have already been the subject of litigation before Keifel J and in any event discloses no reasonable cause of action.  I am content to proceed under O 10 r 3(2) which provides that:

   ‘If no applicant appears before the Court on a directions hearing the Court may dismiss the application or make any other order which it thinks proper.’

5. In my opinion, having regard to the nature and apparent lack of merit of the application and the non-appearance of the applicant and her father, the appropriate order is that the application be dismissed and that the applicant pay the respondent's costs of the application.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:            12 August 2004

No Appearance for the Applicant
Counsel for the Respondent:	Mr M Wigney and Ms S Mason
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 August 2004
Date of Judgment:	6 August 2004