SZANA v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1574

FEDERAL COURT OF AUSTRALIA

SZANA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1574

SZANA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1590 of 2003

ALLSOP J
16 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1590 of 2003

BETWEEN:	SZANA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	16 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the application to vacate the hearing date on 30 January 2004 be dismissed;

2.the applicant pay the respondent's costs of that motion;

3.the appellant be restrained from contacting the chambers of Allsop J directly by facsimile or telephone; and

4.any application by either party be filed in the Registry and served on the other party.  Service by the appellant on the respondent may be by facsimile to the respondent's solicitors.  Filing in the Registry will be by mail or facsimile clearly identifying the matter number which is N1590 of 2003.

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 1590 of 2003

BETWEEN:	SZANA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	16 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was before me last Tuesday, 9 December 2003.  On that day I made orders and published reasons in a related matter, being an appeal from Federal Magistrate Driver.  The appeal from Federal Magistrate Raphael, this current matter, was also listed for directions.  The appellant is in detention.  He has been in Australia since 1987.  Some, but perhaps not all, of his history of applications is referred to in my reasons for judgment in the appeal from Federal Magistrate Driver.

2. The appeal from Federal Magistrate Raphael concerns the refusal of a bridging visa by the delegate of the Minister and its affirmation by the Migration Review Tribunal.  The appellant had applied for a bridging visa while he disputed with the Minister in the Courts about the other aspects of his affairs.  For reasons which the delegate thought appropriate, a bond of $10,000 was required to be put up.  This was the substantive complaint of the appellant in relation to the bridging visa decision.  The Migration Review Tribunal affirmed that decision concerning the bridging visa and the condition of a $10,000 bond. 

3. Federal Magistrate Raphael heard an application under s 39B of the Judiciary Act1903 (Cth) seeking statutory writs and orders in relation to the Migration Review Tribunal's decision. Federal Magistrate Raphael dismissed the application, finding no jurisdictional error.

4. The appeal is within this framework of analysis and, though important to the appellant, is not overly complex.  I indicated to the appellant last week that I would hear the matter before Christmas if that was his wish.  He is in detention and has been in detention for some time.  I thought it appropriate to have his affairs resolved at the earliest opportunity. 

5. On 9 December, not only did he express a preparedness to have a later hearing, but he expressed a desire to have a later hearing.  I set the matter down, therefore, for Friday 30 January 2004.  On 11 December my chambers received a facsimile, which I will mark as Exhibit A in the motion, in effect requesting a 3 month adjournment of the hearing date.

6. I treated the matter, in effect, as a notice of motion to vacate the hearing date and fix another hearing date in March 2004.  This is how the respondent understood the correspondence.  The appellant did not indicate today any other intention in the correspondence, thus I have treated the application as one to vacate the date and set a later hearing date. 

7. I do not propose to grant the application. 

8. The detention of persons for reasons under the Migration Act1958 (Cth) is a matter of public as well as private interest. I see no reason why the appellant cannot realistically prepare for this appeal as well as take any steps in relation to any other application he may have.

9. I will not adjourn the application in relation to this man in custody beyond 30 January.  By 30 January 2004 he will have had from 9 December 2003, over one and a half months, to prepare the appeal.  That, in my view, is ample time. 

10. There is another matter I wish to deal with.  The appellant is unrepresented and has some, but limited, English and no doubt is distressed by his present circumstances.  However, the facsimile machine in my chambers is not the Registry. 

11. Any further application or communication to the Court in relation to the appellant's matters will be undertaken to the Registry and not directly to my chambers.  In particular, the appellant is not to use the telephone to ring my chambers without leave of the Court, which is not given.  Any motion or other document to be filed will be sent to the Registry, whether by facsimile or mail, and addressed to a Registrar of the Court.

12. Further, any document which is filed with the Court will be served on the solicitors for the respondent.  The orders that I make are as follows: 

    1.The application to vacate the hearing date on 30 January, 2004 is dismissed;

    2.the applicant to pay the respondent's costs of that motion;

    3.the appellant is restrained from contacting my chambers directly by facsimile or telephone;

    4.any application by either party is to be filed in the Registry and served on the other party.  Service by the appellant on the respondent may be by facsimile to the respondent's solicitors.  Filing in the Registry will be by mail or facsimile clearly identifying the matter number which is N1590 of 2003.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .

Associate:

Dated:             20  January 2004

The Appellant appeared in person with the assistance of an interpreter:
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	16 December 2003
Date of Judgment:	16 December 2003