S1112 of 2003 v Refugee Review Tribunal

[2004] FCA 671

FEDERAL COURT OF AUSTRALIA

S1112 of 2003 v Refugee Review Tribunal [2004] FCA 671

S1112 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

N 1109 OF 2003

EMMETT J
3 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1109 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S1112 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 FEBRUARY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed pursuant to O 10 r 7 of the Federal Court Rules.

2.        The applicant pay the second 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 1109 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S1112 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	3 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 10 March 1997, the Refugee Review Tribunal (‘the Tribunal’) affirmed a decision of a delegate of the Minister for Immigration and Ethnic Affairs (‘the Minister’), to refuse the applicant a protection visa under the Migration Act 1958 (Cth). The applicant subsequently became a party to proceeding S 89 of 1999 in the High Court of Australia seeking constitutional writ relief in respect of the Tribunal’s decision on the ground that the Tribunal failed to accord the applicant procedural fairness. A draft order nisi seeking relief on that ground was filed on 29 May 2003.  The matter was then remitted to this Court pursuant to orders made by Gaudron J.

2. On 27 October 2003, I ordered the applicant to file and serve, on or before 20 January 2004, a statement of contentions of relevant facts and law setting out particulars of the grounds relied upon and any affidavits which the applicant intends to rely on at the hearing.  Up to that stage the applicant was represented by Adrian Joel & Co (‘the Solicitors’).  On 17 December 2003, the Solicitors filed a notice of withdrawal of solicitor with an affidavit in support indicating that the applicant had been informed of the intention of the Solicitors to withdraw.

3. The affidavit discloses that the applicant had been informed on 3 November that the Solicitors would be withdrawing if he did not contact them within 14 days.  On 18 December 2003, the Minister’s solicitor wrote to the applicant at the addresses known to the Minister, informing the applicant that if he failed to comply with my orders, the Minister would be seeking to have the application dismissed with costs pursuant to O 10 r 7(1)(a).

4. My orders were not complied with and when the matter was called on for directions today, there was no appearance by the applicant.  However, I was informed from the bar table by Mr Markus, the solicitor for the Minister, that on 6 January and subsequently on 18 and 19 January, telephone calls were received at his office.  In the course of those telephone calls, the applicant was advised to get legal advice and the nature of my orders was explained to him. 

5. In the circumstances, I consider it is appropriate to accede to the Minister’s application that the proceeding be dismissed pursuant to O 10 r 7. 

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

Associate:

Dated:            31 May 2004

Counsel for the Applicant:	The applicant did not appear
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 February 2004
Date of Judgment:	3 February 2004