S 432 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 288

FEDERAL COURT OF AUSTRALIA

S 432 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 288

S 432 of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 342 of 2003

ALLSOP J
16 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 342 of 2003

BETWEEN:	S 432 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	16 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)order that the applicant file and serve any submissions in reply on or before 6 April 2004;

(2)stand over the proceedings to a date to be fixed for further argument or judgment;

(3)should the court require any further assistance in the light of the submissions in reply of the applicant, to be filed by 6 April 2004, the matter will be re-listed;

(4)otherwise dismiss the application for an adjournment.

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	N 342 of 2003

BETWEEN:	S 432 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	16 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was remitted to this Court by an order of Gaudron J dated 6 February 2003. What was remitted to this Court was an application for constitutional writs under s 75(v) of the Constitution. The matter was supported in the High Court by an affidavit of the applicant affirmed on 20 November 2002. The affidavit was witnessed by one Mofazzal Haque Kazi, a solicitor and barrister. Thereafter, conformably with the orders of Gaudron J the matter came to this Court.

2. Before coming to this Court an amended draft Order Nisi was filed by the prosecutor, that is the current applicant.  At this time, according to the documents filed in the High Court, the applicant was represented by the firm of Morgan Ardino & Co.  The application for the amended draft Order Nisi is the matter before this Court.  I do not propose to list in detail the occasions upon which the matter was before the Court, however, it should be noted that on 21 May 2003 the matter came before Emmett J, on which day Mr Killalea of counsel appeared for the applicant.

3. Orders were made by his Honour on that day which included an order that the applicant file any evidence upon which he proposed to rely by 25 July and that he should file and serve written submissions five working days prior to the hearing date. 

4. On 22 August 2003, there was filed in the Registry a Notice of Intention to Act in person, the notice indicating that Morgan Ardino & Co no longer acted for the applicant.  On 27 October 2003, a Notice of Ceasing to Act was filed by Morgan Ardino & Co indicating that Mr Kazi of that firm ceased to act for the applicant.

5. On 28 October 2003 the matter came before me for directions.  The applicant appeared in person with the assistance of a Hindi interpreter.  I made orders on that day that on or before 18 November 2003 the applicant file and serve an affidavit personally deposing to an explanation for the delay in filing the proceedings in the High Court and the reasons why an extension of time should be granted.  I further ordered on that day that the applicant file and serve any written submissions in support of his application for an Order Nisi on or before 18 November 2003.  The matter was stood over to 25 November 2003. 

6. On 18 November 2003, the applicant filed submissions which, he said today in evidence, were prepared with the assistance of a migration agent.  No affidavit was filed as ordered explaining the delay. 

7. On 25 November 2003, the matter came before me once again.  Once again, the applicant appeared in person with the assistance of a Hindi interpreter.  On that day, I extended time to the applicant to file and serve on or before 10 February 2004 any further evidence and submissions, including submissions as to natural justice and the explanation for the delay in bringing those proceedings and concerning the issue of extension of time.

8. On 10 February 2004, the applicant filed further submissions, no affidavit was filed.  The submissions deal with, amongst other things, an asserted reliance on the case of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. The submissions cover some six pages, together with annexures and, according to the evidence given today, were prepared with the assistance of a migration agent. I should add that it would appear that both the submissions filed on 18 November 2003 and 10 February 2004 were drafted by someone with at least some knowledge of the law.

9. At the directions hearing on 25 November 2003, I set the matter down for hearing at 10.15 am today.  Given the evidence this morning by the applicant that he cannot assist me with any submissions without the help of a lawyer, the nature of the submissions already filed and the ample time that the applicant has had to obtain further legal assistance the orders I propose to make are as follows:

   (1)order that the applicant file and serve any submissions in reply on or before 6 April 2004;

   (2)stand over the proceedings to a date to be fixed for further argument or judgment;

   (3)should the Court require any further assistance in the light of the submissions in reply of the applicant, to be filed by 6 April 2004, the matter will be re-listed;

   (4)otherwise dismiss the application for an adjournment.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             19 March 2004

The applicant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 March 2004
Date of Judgment:	16 March 2004