S1280 of 2003 v Minister for Immigration (No.2)
[2005] FMCA 1526
•10 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1280 of 2003 v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 1526 |
| MIGRATION – RRT decision – judicial review application dismissed for absence from hearing – application to set aside – insufficient evidence explaining absence – no arguable ground of jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B |
| ApplicantS1280 of 2003 v Minister for Immigration [2004] FMCA 742 Applicant S1280 of 2003 v Minister for Immigration [2005] FMCA 1110 |
| Applicant: | APPLICANT S1280 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1543 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 10 October 2005 |
| Date of Last Submission: | 10 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms J Bautista |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The applicant’s application under r.16.05(2)(a) filed on 11 August 2005 seeking to set aside orders made on 21 July 2005 is refused.
The applicant must pay the respondent’s costs in the sum of $750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1543 of 2004
| APPLICANT S1280 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The substantive application in this matter is an application under s.39B of the Judiciary Act 1903 (Cth) seeking orders by way of judicial review of a decision of the Refugee Review Tribunal handed down on 12 September 2000.
The applicant arrived in Australia in June 1999 and applied for a protection visa on 1 July 1999. He was assisted by an agent, both when making his original application and when making his application for review.
His substantive application was filed in this court on 25 May 2004.
It contained grounds for review which were framed broadly and without particulars to show any relevance to the decision of the Tribunal. No amended application has ever been filed.
The applicant has a prior history of litigation, in which an application for review was dismissed by Beaumont J on 14 December 2000, due to absence from the hearing. A second application for judicial review was made to the High Court in relation to the Nancy Lie proceedings.
It was remitted to the Federal Court and refused at an interlocutory stage by Emmett J.
The new proceeding in this Court have previously produced two judgments on my part, and I do not think it necessary for me to repeat the history of defaults by the applicant which is described in those judgments. In ApplicantS1280 of 2003 v Minister for Immigration [2004] FMCA 742 I rejected an interlocutory application by the Minister seeking summary dismissal of the proceedings for non-compliance with procedural directions. I did so, notwithstanding the absence of the applicant.
The applicant did attend a subsequent directions hearing, when I set the matter down for hearing on 21 July 2005. However, he did not attend that hearing, but made an unsupported application for an adjournment. I gave a judgment explaining my reasons for dismissing the application in the absence of the applicant (see Applicant S1280 of 2003 v Minister for Immigration [2005] FMCA 1110).
In the course of my judgment I explained how the applicant had been given a full opportunity to put forward grounds of merit, and had not done so. I indicated how his communication to the Court was unsupported by medical evidence. At the end of my judgment I said:
16.Under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001, the orders I propose to make today may be set aside by this Court on application by the applicant. He will however have to present medical or other evidence showing a satisfactory explanation for his absence today, and he will need to point to merit in his application justifying its restoration to the Court’s list.
A copy of that judgment was sent to the applicant.
The applicant's present application to set aside the dismissal of his substantive application was filed on 11 August 2005. An affidavit in support says merely:
1. I am the applicant for the prosecutor. I did not attend the hearing because I was sick.
2. The respondent made a decision to not grant the prosecutor a protection visa.
Plainly, this affidavit does not sufficiently address the requirements which I had pointed to in my previous judgment. The applicant appeared today, but presented no medical evidence to verify his claim to have been too unwell to have attended the hearing.
In relation to the merits of substantive application, the applicant has not pointed to any arguable ground of jurisdictional error by the Tribunal. He has not presented an amended application which seeks to do this. His oral submissions to me in support of reinstatement revealed no more than a refusal to accept the outcome before the Tribunal. He said to me:
The political situation in Bangladesh does not allow me to go back.
However that proposition is not sufficient to make it appropriate for me to set aside my previous order and reinstate the application.
Considering all the circumstances, including my reasons for dismissing the substantive application, I refuse the application to set aside my order.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 24 October 2005
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