Slavinskas v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 617

FEDERAL COURT OF AUSTRALIA

Slavinskas v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 617

RAMUNAS SLAVINSKAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1990 of 2003

ALLSOP J
11 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1990 of 2003

BETWEEN:	RAMUNAS SLAVINSKAS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	11 MAY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. On or before 1 June 2004, the applicant file and serve an affidavit annexing the transcript before the learned Federal Magistrate, highlighted in both filed and served copies, which parts of the transcript are relied upon in connection with any argument that the Magistrate was in error in paragraph 4 of his reasons.
2. On or before 1 June 2004, the applicant file any further written submissions directed to that error. 
3. On or before 1 June 2004, the applicant file any further submissions directed to the question of utility of the matter being remitted to the Migration Review Tribunal. 
4. On or before 16 June 2004, the respondent file and serve any submissions in reply to those matters and any evidence, if necessary to be led in relation to the issue of the transcript. 
5. On or before 21 June 2004, the applicant file and serve any written submissions strictly in reply.
6. The matter thereafter be dealt with on the papers.
7. The question of costs be reserved.

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 1990 of 2003

BETWEEN:	RAMUNAS SLAVINSKAS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	11 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is an application to adjourn this matter.  The matter came before me last December as an application for an extension of time to appeal, at which time there was no appearance by the applicant. I dismissed the application with costs. By way of notice of motion dated 9 February 2004, the applicant moved to have my orders of 15 December 2003, made in his absence, set aside.

2. The matter is before me today for two applications: first, the application to set aside the orders I made on 15 December; and secondly, for the extension of time for the filing of a notice of appeal from the orders of the learned Federal Magistrate. The evidence led before me today was two affidavits, one of Mr Slavinskas and one of Mr Graham. The material that was tendered were the letters of 6 May as exhibit A, the 7 May and annexures as exhibit B, the court book as exhibit C and the application and affidavit before the magistrate as exhibit D.

3. Mr Killalea of counsel appears today on behalf of the applicant.  Written submissions were filed on 9 March 2004 signed by Mr Killalea, however he has indicated to me today, and I accept, that the instructions to appear on these applications were not received by him until last week.

4. Mr Killalea, on behalf of the applicant, seeks an adjournment to deal with two matters, the first is an evidential matter and an accompanying matter of submission, the second is a matter of submission.  The matter of evidence, which is sought to be led, which Mr Killalea is not in a position to lead today, is the transcript before the Federal Magistrate.  The Federal Magistrate said in paragraph 4 of his reasons that:

   That the applicant has not asserted that he informed the MRT of his move from Waterloo to Chatswood and, indeed, he only lived at Chatswood for a short time.

5. Mr Killalea has indicated on instructions from his client who is in Court that that is not what the applicant asserted before the magistrate.  The applicant, through Mr Killalea, asked that he be allowed time to produce that transcript identifying the matters in which the contrary assertions were made or from which it can be gleaned that there is a factual error in the magistrate's reasons.  Mr Killalea also asks for a period of time in which to put submissions about that evidential matter.

6. The second matter that Mr Killalea wishes time to undertake is to deal with the proposition which he understands to be made by the respondent through the submissions of Mr Reilly who appears for the respondent Minister.  That matter is as to the efficacy or utility of returning the matter to the MRT should I set aside my orders, should I grant leave for an extension of time and should the appeal be allowed.

7. There is no evidential matter, which needs to be dealt with here.  I admitted in the applications before me, subject to relevance, exhibits A and B, being the evidence upon which Mr Killalea relies but he wishes an opportunity to put written submissions in relation to that matter which, together with the submissions concerning the error said to have been made by the learned Federal Magistrate in [4] of his reasons, would complete the submissions made on behalf of the applicant in the two applications before me, that is, the application to set aside my orders of 15 December and the application for an extension of time to file a notice of appeal.

8. Mr Reilly opposes the adjournment.  First, there is the question of the interests of justice in the prompt dispatch of the Court's business.  The respondent Minister is just as entitled as any other litigant in this Court to have reasonably prompt disposal of her matters.  The Commonwealth should not be seen as a bottomless pit as to costs.

9. However, the question of the legitimate visa status of the applicant is a matter of great importance to him and although it is a finely balanced question, in the interests of justice, I propose to allow an opportunity to attend to the matters to which I have referred.  However, I do not propose to extend that concession beyond a timetable for dealing with this matter on the papers, thus, I propose only in effect, to require written submissions and the extent of the further burden of costs on the Minister will be limited to the submissions which may well be short in relation to the matters to which Mr Killalea has referred.

10. Therefore, balancing the interests of justice of both parties, I propose to allow the adjournment on the following terms: 

    1. On or before 1 June 2004, the applicant file and serve an affidavit annexing the transcript before the learned Federal Magistrate, highlighted in both filed and served copies, which parts of the transcript are relied upon in connection with any argument that the Magistrate was in error in paragraph 4 of his reasons.
    2. On or before 1 June 2004, the applicant file any further written submissions directed to that error. 
    3. On or before 1 June 2004, the applicant file any further submissions directed to the question of utility of the matter being remitted to the Migration Review Tribunal. 
    4. On or before 16 June 2004, the respondent file and serve any submissions in reply to those matters and any evidence, if necessary to be led in relation to the transcript.

    5.On or before 21 June 2004, the applicant file and serve any written submissions strictly in reply.

    6.The matter thereafter be dealt with on the papers.

11. I reserve the question of costs, noting my present indication is that the costs of the respondent after today be paid by the applicant. The applicant may include in written submissions filed on or before 1 June, any submissions that he may wish to put to me for a different order.

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

Associate:

Dated:             27 May 2004

Counsel for the Applicant:	Mr R. Killalea
Solicitor for the Applicant:	R. Makin & Associates
Counsel for the Respondent:	Mr T. Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	11 May 2004
Date of Judgment:	11 May 2004