Ramasahayam v Minister for Immigration and Border Protection and Anor

[2014] HCATrans 220

[2014] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M46 of 2014

B e t w e e n -

PRASHANTH REDDY RAMASAHAYAM

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

MIGRATION REVIEW TRIBUNAL

Second Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 OCTOBER 2014, AT 9.29 AM

Copyright in the High Court of Australia

HER HONOUR:   Perhaps the matter should be called outside.

This is an application to reinstate an application for special leave to appeal taken to have been abandoned. On 4 June 2014, the applicant filed an application for special leave to appeal against orders of the Federal Court of Australia (Tracey J) dismissing the applicant’s appeal to that Court from a decision of the Federal Circuit Court of Australia (Judge Turner). As the applicant is unrepresented, r 41.10.3 of the High Court Rules 2004 (Cth) required the applicant to file a written case within 28 days of the filing of the application for special leave to appeal. The applicant did not do so.

Rule 41.10.4.1 of the High Court Rules provides that, if an unrepresented applicant does not comply with the time limit imposed by rule 41.10.3(c), the applicant’s application for special leave to appeal will be taken to be abandoned unless the Court or a Justice orders or directs otherwise. By summons filed on 24 July 2014, the applicant now seeks such an order or direction.

The history of these proceedings is described in the reasons for judgment of Tracey J:  Ramasahayam v Minister for Immigration and Border Protection [2014] FCA 498. On 20 December 2011, a delegate of the Minister refused the applicant’s application for a Student (Temporary) (Class TU) visa. On 31 July 2013, the Migration Review Tribunal affirmed the decision. The applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. On 3 February 2014, Judge Turner found there was no jurisdictional error apparent in the Tribunal’s decision and dismissed the application with costs. On 16 May 2014, Tracey J dismissed the applicant’s appeal from Judge Turner’s decision. His Honour found that the applicant had failed to identify any legal error on the part of the Tribunal or the Federal Circuit Court.

The reasons which the applicant advances for his failure to file a written case in the time provided under the Rules are that he lacked knowledge of the time limits and was experiencing financial hardship and certain health problems. 

On 7 October 2014, the solicitors for the first respondent notified this Court, by letter placed with the papers, that an appeal listed for hearing before the Full Court of the Federal Court of Australia on 27 November 2014 (NSD 905 of 2014) may canvass matter relevant to the correctness of the decision from which the applicant appealed.  The solicitors for the first respondent stated that, in these circumstances, the first respondent does not oppose the making of the orders sought in the applicant’s summons, namely that the application for special leave be reinstated.  It has also been indicated to the Court that the applicant has been given notice of the first respondent’s position, which I have just described. 

The applicant did not appear in Court this morning when the matter was called on for hearing.  In the abovementioned letter, the solicitors for the first respondent also indicated that the applicant is not presently in Australia and does not presently hold a valid visa entitling him to return to Australia.  Given the applicant’s reasons for delay and the circumstance that the first respondent does not oppose the making of the orders sought by the applicant, the orders are:

1.The application for special leave to appeal filed on 4 June 2014 is reinstated.

2.The applicant is to file a written case within 28 days of notification by the first respondent of the handing down of the judgment of the Full Court of the Federal Court of Australia in the matter entitled NSD 905 of 2014 and otherwise in accordance with rule 41.10.3 of the High Court Rules.

3.If the applicant does not comply with paragraph 2 of these orders, the application will be taken to be abandoned.

4.        Costs of the summons are reserved.

5.        Liberty to apply is reserved to all parties.

AT 9.35 AM THE MATTER WAS CONCLUDED