S1089 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1704

FEDERAL COURT OF AUSTRALIA

S1089 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1704

S1089 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 691 OF 2004

CONTI J
9 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 691 OF 2004

BETWEEN:	S1089 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	9 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal from the orders and reasons for judgment of Emmett J of 30 April 2004 be dismissed.

2.        The applicant pay the respondent’s costs.

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 691 OF 2004

BETWEEN:	S1089 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	9 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application made by notice of motion of the applicant filed on 7 May 2004 seeking literally the following orders:

   ‘1.I being appeal against federal court decision on 30.4.04 because the decision was not fare and I had no enough time to prove my background.

   2.I submitted lots of paper, federal court did not examine properly my documents.’

2. The decision of this Court the subject of the notice of motion was given by Emmett J on 30 April 2004, for the following reasons:

   ‘1.On 29 May 2003, a draft order nisi was filed in the High Court of Australia.  An affidavit of Adrian Phillip Joel was filed on the same day purporting to set out the grounds upon which relief should be granted.  It appears that relief was sought in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 5 November 1997, confirming a decision of the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) to refuse a protection visa to the applicant.  The matter was remitted by the High Court of Australia to this Court.

   2.On 27 October 2003 I made directions for the filing of a statement of contentions of relevant facts and law.  That statement was to be filed by 20 January 2004.  However, on 2 December 2003 the solicitors filed notice of withdrawal.  On 9 December the Minister’s solicitors wrote to the applicant informing him of the directions that I had made on 27 October 2003.  The directions have not been complied with, notwithstanding an extension of time that was subsequently granted for compliance.

   3.The draft order nisi and affidavit in support do not disclose any reasonable basis upon which any relief could be granted.  The Minister asks the Court either to refuse an order nisi or to dismiss the application for non-compliance with the directions.  Having regard to the fact that the applicant is unrepresented, and as I understand it, is in detention, it seems to me that the appropriate course is simply to refuse the order nisi.  However, it is appropriate to order the applicant to pay the costs thrown away by his failure to comply with the directions.’

3. His Honour’s orders made pursuant to those reasons were as follows:

   ‘1.       Order 51A r 5(1) of the Federal Court rules not apply. 

   2.        The application for an order nisi be refused. 

   3.The applicant pay the respondent’s costs thrown away by non-compliance with the Court’s directions.’

4. The affidavit of the applicant in support of the present notice of motion made on 7 May 2004 was literally in the following terms:

   ‘1.I beg most respectfully to state that I am a Bangladeshi.  I used to do politics in my country.  But I got lots of problem in my country by ruling party.  So I left my country.  It’s not possible for me to back my native country at the moment because the same party is the power.  So, I therefore pray and hope that you would be kind enough to give me to permission to stay here with my work permission so that I can survive properly.  Until giving me any decision.’

5. I have treated the present application as one for leave to appeal against the above decision of Emmett J.

6. Neither the content of the affidavit nor what was said orally by the applicant through an interpreter disclose any conceivable ground of appeal, or for that matter any basis for judicial review, from or in relation to the orders of Emmett J of 30 April 2004.

7. Indeed the legal processes placed before the Court today constitute in substance and reality an abuse of the Court’s processes.

8. The application made to the Court today must be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             20 December 2004

The Applicant appeared in person
Solicitor for the Respondent:			Australian Government Solicitor
Date of Hearing:			9 December 2004
Date of Judgment:			9 December 2004