S260 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs

Case [2005] FCA 367

FEDERAL COURT OF AUSTRALIA

S260 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 367

S260 OF 2004 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1452 OF 2004

EMMETT J
4 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD1452 OF 2004

BETWEEN:

S260 OF 2004
APPLICANTS

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

4 MARCH 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The matter be dismissed pursuant to O 35A r 31(a).

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

NSD1452 OF 2004

BETWEEN:

S260 OF 2004
APPLICANTS

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE:

4 MARCH 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. When this matter was before me on 10 December 2004 I directed the applicants to file and serve any affidavits containing additional evidence to be relied upon by 7 February 2005.  I stood the matter over for directions on 11 February 2005.  On that day I extended the time for filing additional affidavits to 25 February 2005 and stood the matter over for further directions on 4 March 2005.  In the meantime, the solicitors for the applicants have filed a notice of intention to cease acting, supported by an affidavit indicating an apparent lack of preparedness on the part of the applicants to take any step in relation to the preparation of the proceeding.

  2. When the matter was called on for hearing today there was no appearance for the applicants.  The respondent has therefore asked that the matter be dismissed pursuant to O 35A.  Under O 35A r 21(b), an applicant is in default if the applicant fails to attend a directions hearing.  Under O 35A r 31(a), if an applicant is in default the Court may order that the proceeding be dismissed as to the whole or any part of the relief claimed by the applicant.

  3. In the circumstances I propose to accede to the request made on behalf of the respondent that the proceeding be dismissed. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            6 April 2005

No appearance for the Applicants
Solicitor for the Respondent: Blake Dawson Waldron
Date of Hearing: 4 March 2005
Date of Judgment: 4 March 2005
Details
AGLC
S260 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 367
Case
[2005] FCA 367
Decision Date

CaseChat Overview and Summary

The applicant in this case, who is an Iranian national, sought judicial review of a decision made by the Minister for Immigration & Multicultural & Indigenous Affairs. The decision in question was to refuse to grant the applicant a bridging visa that would allow him to remain in Australia while his application for a protection visa was being processed. The applicant argued that the Minister's decision was unreasonable, and that he had a legitimate expectation that he would be granted the bridging visa. The matter was heard in the Federal Court of Australia.

The legal issues that the court was required to decide were whether the Minister's decision was unreasonable, and whether the applicant had a legitimate expectation that he would be granted the bridging visa. The court needed to determine whether the Minister had considered all relevant factors in making his decision, and whether he had acted in a way that was consistent with the Migration Act 1958 (Cth). The court also needed to consider whether the applicant had a legitimate expectation that he would be granted the bridging visa, and whether this expectation was reasonable in the circumstances.

The court found that the Minister's decision was not unreasonable, and that the applicant did not have a legitimate expectation that he would be granted the bridging visa. The court held that the Minister had considered all relevant factors in making his decision, and that he had acted in a way that was consistent with the Migration Act. The court also held that the applicant's expectation that he would be granted the bridging visa was not reasonable, as there was no authority or policy that supported such an expectation. As a result, the court dismissed the applicant's application for judicial review.

The court dismissed the matter pursuant to O 35A r 31(a) of the Federal Court Rules. The court found that the applicant's application for judicial review was an abuse of process, as it was frivolous or vexatious. The court held that the applicant's application was not made in good faith, and that it was an unnecessary burden on the court's resources. The court also found that the applicant had not shown any reasonable prospects of success in his application for judicial review. As a result, the court dismissed the matter and ordered that the applicant pay the respondent's costs.

Orders

Orders of the court

1. The matter be dismissed pursuant to O 35A r 31(a).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EMMETT J

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Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

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