Rajput v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 202

FEDERAL COURT OF AUSTRALIA

Rajput v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 202

MUHAMMED WASIM RAJPUT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

VID 1101 OF 2004

NORTH J
8 FEBRUARY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1101 OF 2004

BETWEEN:	MUHAMMED WASIM RAJPUT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	8 FEBRUARY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application for leave to appeal is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1101 OF 2004

BETWEEN:	MUHAMMED WASIM RAJPUT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	8 FEBRUARY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an application for leave to appeal against a decision of the Migration Review Tribunal (the Tribunal) of 27 March 2002.  On 8 February 2005 the Chief Justice of this Court ordered that the case be heard by a single judge.  The Tribunal affirmed the decision of a delegate of the respondent to cancel the applicant’s visa.  The applicant filed an application for orders nisi in the High Court for the issue of writs of prohibition and certiorari on 22 April 2002.  On 7 February 2003 the High Court remitted the application to the Federal Court and on 23 April 2003 the Federal Court ordered that the matter be transferred to the Federal Magistrates Court.

2. The federal magistrate listed the application for hearing on 18 August 2004. On that day the applicant did not appear to prosecute the application. The federal magistrate dismissed the application and ordered that the applicant pay the respondent's costs, fixed in the sum of $6292. The grounds upon which the federal magistrate dismissed the application appear from the very short transcript of the hearing. Before the federal magistrate, counsel for the respondent applied to have the matter dismissed pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules 2001 which relevantly provides as follows:

   ‘If a party to a proceeding is absent from a hearing, other than the first court date, the court may do any of the following:
              …
              (c) if the party absent is an applicant ... dismiss the application.
              …’

3. Rule 13.03A(d) allows the federal magistrate to proceed with the hearing of the application in the absence of the applicant, but it is clear from the transcript that the federal magistrate did not proceed with the hearing but dismissed the application under r 13.03A(c) on the sole ground of the applicant’s absence.

4. The basis upon which the federal magistrate dismissed the application was not known to the respondent’s representatives when her outline of submissions in this Court was filed.  In those submissions (par 6.1) the case was dealt with on the basis that the federal magistrate acted under either r13.03A(c) or (d).  Accordingly, the respondent needed to go into considerable detail concerning the merits of the applicant’s application.  Such approach would not have been necessary had it been recognised that the federal magistrate acted under r13.03A(c) because, under that rule, the only question for the federal magistrate was whether the applicant had attended or not.

5. Given the very limited matter before the federal magistrate, the applicant has failed to demonstrate any basis upon which it can be said that the federal magistrate erred in arriving at the decision to dismiss the application.  Consequently, the application for leave to appeal must be refused. 

6. I have explained to the applicant that the Federal Magistrates Court Rules, and the law relating to the entry of judgment in the absence of a party, gives the party against whom judgment is entered the right to apply to vary or set aside a judgment entered in the absence of a party (see r 16.05(2)). The applicant claims he did not receive any notice of the hearing before the federal magistrate and that is why he did not appear. That matter must be raised before the Federal Magistrates Court and tested in that venue. I have explained to the applicant that the federal magistrate has a discretion to set aside the judgment if the applicant persuades the federal magistrate that he was not given notice. If that happens, the federal magistrate would then hear the application for the issue of constitutional writs. However, those matters are not raised for consideration today.

7. Ordinarily the applicant would therefore bear the respondent’s legal costs of this application.  However, the respondent should not receive her costs in this case for the following reasons.

8. First, the critical factor on which this application turns is the basis upon which the federal magistrate acted in dismissing the application. In order to raise that matter it was necessary for the parties to produce to the Court some evidence of the way in which the matter was dealt with before the federal magistrate.  The applicant is self-represented.  The court book was prepared by the respondent’s solicitors.  The transcript of the hearing before the federal magistrate was not included in the court book.  It was left for the Court to obtain its own copy which was done the day prior to this hearing and took approximately two hours to produce.  The relevant transcript is approximately 15 lines in length.

9. The failure to provide transcript caused the respondent’s representatives to prepare far more elaborate submissions than were called for, and it would be quite wrong to permit the costs of this misdirected preparation to be awarded to the respondent.  This case was capable of being dealt with in a very short time, and should have been mentioned for disposal on the first directions day.  Significant time has been wasted in processing this case because the respondent’s solicitors failed to direct their minds to the very simple issue which is the basis for determination.

10. Further, the certificate of correctness, signed by the respondent’s solicitors and the applicant, states that the appeal book has been examined and found to be correct.  In fact, the court book omits paragraphs 17 to 21 of the decision of the Tribunal (AB pp 150-151).  The respondent’s solicitors gave insufficient attention to the preparation of the court book.  This is an additional reason for denying the respondent costs in this case.

11. It is to be hoped that in future the respondent’s legal representatives will give attention at the earliest possible time to the matter centrally determinative of the case and, if it is a matter such as in the present case, make representations to the Court to have the matter dealt with expeditiously, rather than causing a delay, in this case from approximately September 2004.  The application for leave to appeal will be dismissed. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North .

Associate:

Dated:             7 March 2005

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Mr R.C. Knowles
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	8 February 2005
Date of Judgment:	8 February 2005