S219 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 197

FEDERAL COURT OF AUSTRALIA

S219 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 197

MIGRATION – no point of principle

S219 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1737 OF 2004

MOORE J
17 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1737 OF 2004

BETWEEN:	S219 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	17 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

2.The applicant pay the respondent's costs.

3.Costs be fixed at $650.

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	NSD 1737 OF 2004

BETWEEN:	S219 OF 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	17 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex Tempore – Revised)

Introduction

1. This is an application for an extension of time in which to appeal against a judgment of Madgwick J.  On 29 October 2004 his Honour dismissed an application, remitted to this Court from the High Court on 23 August 2004, for the issue of constitutional writs seeking to quash of a decision of Refugee Review Tribunal ("the Tribunal") and compelling the Tribunal to rehear the matter. 

   Background

2. The applicant is a citizen of Pakistan.  He arrived in Australia in February 2001.  The Department of Immigration and Multicultural and Indigenous Affairs received the applicant's application for a protection visa on 15 April 2002. It was refused on 18 September 2002.  He was taken into immigration detention on 3 October 2002.  The Tribunal received his application for review on 4 October 2002.  The Tribunal affirmed the decision of the delegate on 6 January 2003.  An application for review of the Tribunal's decision was dismissed on 19 May 2003 by the Federal Magistrates Court.  The applicant appealed against that decision to this Court.  Hill J dismissed the appeal with costs on 24 September 2003.  On 16 June 2004 the applicant made an application for orders nisi to the High Court.  Those proceedings were remitted to the Federal Court on 23 August 2004.

3. Following his application to the Tribunal, the applicant wrote twice to the Tribunal requesting adjournments to allow him more time to collect evidence.  The Tribunal replied to the first request indicating it would not postpone the hearing.  The applicant did not attend the hearing, advising staff at the immigration detention centre that he did not wish to attend.  In affirming the delegate's decision the Tribunal explained that it was not satisfied that any fear of persecution held by the applicant was well founded.

4. Before the Federal Magistrates Court, the applicant declined to attend the hearing, sending a note to the Minister's solicitor saying 'I kindly inform you that I do not want to go to the Federal Court because I have to proceed this matter in a different way. I am highly obliged to you'.  His application contained an allegation that the Tribunal had made an error of judgment, had failed to make a bona fide attempt to exercise its powers and had not acted in good faith.  The applicant failed to file an amended application as directed or provide real particulars of the grounds upon which he relied.  The Federal Magistrate found no jurisdictional error and dismissed the application.

5. After the appeal to this Court had been set down for hearing before Hill J, the applicant wrote to the Court to inform 'the department' that he would be unable to attend on the hearing date for a number of reasons including the arrangement of evidence and proofs without which he could not come to the hearing.  He also wanted time to obtain money and legal representation.  Hill J heard the application for an adjournment on the hearing date, 24 September 2003.  In support of his application for an adjournment, the applicant gave the Court a letter from a barrister effectively declining to act for him on the grounds that the barrister had formed the view he had no case.  His Honour noted the time elapsed since the applicant had last sought legal representation, the unlikelihood of his obtaining sufficient funds for legal representation and his previous non-attendance at proceedings concerning him.  His Honour refused to grant an adjournment finding no jurisdictional error in the Tribunal's decision or error in the judgment of the Federal Magistrate.

6. In the proceedings remitted by the High Court to this Court, heard by Madgwick J, the applicant claimed the Tribunal had fallen into error in interpreting the law, had failed to make a bona fide attempt to exercise its power, had made a decision lacking reasonableness, had constructively failed to comply with the Migration Act 1958 (Cth) and/or had denied the applicant natural justice. The applicant sought an adjournment before Madgwick J to enable him to obtain legal advice which his Honour refused.

7. Madgwick J concluded there was no jurisdictional error in the decision of the Tribunal and pointed out that Hill J had already held there was no error in judgment of the Federal Magistrate declining to grant judicial review of the Tribunal decision.  His Honour noted that the relief sought before him appeared to be substantially that which was earlier sought and no explanation had been given for why that relief could not have been earlier sought.  His Honour concluded at [13] that:

   …when one examines the conduct of the applicant over a long time that he has simply used the available legal processes in a cynical way in order to enlarge his time in Australia.  In the circumstances, I think the respondent's submission that the present proceedings are not only baseless but amount to an abuse of process is correct. 

   His Honour dismissed the application.

   Application for extension of time to file and serve a notice of appeal

8. The applicant filed an application for an extension of time in which to file and serve a notice of appeal on 24 November 2004.  This was accompanied by two supporting affidavits and a draft notice of appeal.  In explaining his lateness the applicant essentially stated that he did not know how many days he had to lodge his "application" with the "Full Federal Court".  He thought he had 28 days in which to lodge it.  In the second affidavit he states:

   I try to provide them some proves regarding my case but the Hon Justice Madgwick has refused to accept the proves that could be helpful in my case.
   I would like to request to the full Federal Court of Australia please give me an opportunity to appear before the Tribunal and I could provide them with the proves that are really helpful in my case.
   I have a fear of my life if I return to Pakistan.  So please give me an opportunity to prove myself.

9. The draft notice of appeal does not clearly set out the grounds and the orders sought.  The delay in making the application for an extension of time is not great.  It is only a matter of days.  The real question, however, is whether or not, if time were extended, any issue of substance would be raised in the appeal.

10. The applicant has not demonstrated any error on the part of Madgwick J.  He sought to argue that the inference referred to at [13] (see [7] above) was one that should not have been drawn.  Whether that inference is correct or not is beside the point.  It is an inference that is an available inference on the material that was before Madgwick J, particularly having regard to the several instances where the applicant had opportunities to appear, but declined to do so.

11. I order that the application for an extension of time be dismissed and the applicant pay the respondent's costs.  I further order that the costs payable be in the sum of $650.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:            9 March 2005

The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 February 2005
Date of Judgment:	17 February 2005