Tran v Minister for Immigration (No.1)
[2005] FMCA 411
•24 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRAN v MINISTER FOR IMMIGRATION (No.1) | [2005] FMCA 411 |
| PRACTICE AND PROCEDURE – MIGRATION – Adjournment application – principles – whether affidavit material in support – whether pending application to the Migration Review Tribunal – whether arguable case – application to the Court directly from delegate’s decision – jurisdiction – s.476 Migration Act – application refused. |
| Migration Act 1958, s.476 |
| Smith & Anor v Gannawarra Shire Council (2002) 4 VR 344 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | THI DONG THAO TRAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 587 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 24 January 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Cheung |
| Counsel for the Respondent: | Mr R.C. Knowles |
| Solicitors for the Respondent: | Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 587 of 2004
| THI DONG THAO TRAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this application the solicitor representing the applicant seeks to adjourn the proceedings in order to enable the applicant to provide evidence in relation to issues which have arisen this day concerning whether or not the applicant has indeed made application to or attempted to make application to the Migration Review Tribunal (the MRT) from a decision of a delegate of the respondent dated
6 November 2003.
The solicitor on record for the applicant, Mr David Cheung, has been the solicitor on record throughout since the application was filed in this matter on 24 May 2004. He remains on record, although he has indicated from the bar table that from time to time there have been difficulties representing the applicant which arose from the applicant's previous representatives and/or the applicant's failure to lodge sufficient funds with Mr Cheung to enable him to continue to represent the applicant. There has not been any notice of withdrawal of practitioner filed with the court pursuant to rule 9.03 of the Federal Magistrates Court Rules.
At the commencement of the hearing the representative of the applicant had also sought to rely upon a document dated this day entitled ‘Applicant's Contentions of Fact and Law’. It is in that document that reference is first found to the suggestion that there had been a decision by the MRT to not accept an application for review of the delegate's decision. I had indicated that I would permit the applicant to make submissions in support of the original application and/or in reply to the contentions of fact and law filed by the respondent on 17 January 2005. It was in the context of submissions being made in relation to those matters, including the reference to the MRT, that certain matters were raised by Mr Cheung from the bar table purportedly indicating that there was some evidence that an application to the MRT had been prepared, payment had been made to previous representatives of the applicant to facilitate the filing of that application and that he was instructed the application had not been accepted by the MRT.
The respondent has indicated that there is no record of an application being filed. Had the application been filed, as indicated by the applicant's representative, on 15 November 2003, then it clearly would have been within time given the delegate's decision was made in this matter on 6 November 2003.
Although I have not formally considered the issue of whether I should permit the applicant to rely upon the contentions of fact and law, it seems to me that consideration of that issue is superseded now by the application for an adjournment.
It should be noted that in this matter the application was filed on 24 May 2004. It was then the subject of orders by a registrar of this court on 25 June 2004. Those orders provided the applicant with an opportunity to file and serve an amended application containing proper particulars of the grounds relied upon by 30 July 2004 and to file a supplementary court book and contentions of fact and law by 6 August 2004. The applicant failed to comply with those orders. They were orders made by consent. Further orders were made by consent on 20 October 2004 which had the effect of extending the date by which the applicant should file and serve the amended application to 30 November 2004 and the date by which the applicant should file a supplementary court book and contentions of fact and law to 7 December 2004. It is noted the respondent was to then file its facts and contentions by 28 December 2004 and, perhaps not surprisingly in the absence of any material at all for and on behalf of the applicant, the respondent has not filed its contentions of fact and law until 17 January 2005.
In the circumstances the court is mindful of the requirement to provide an opportunity to an applicant to properly present the case and the court, whilst conscious of case management requirements, should not necessarily permit those case management requirements to overshadow the rights of an applicant to have an application heard and determined according to law. I note in particular the comments of President Winneke of the Court of Appeal of the Supreme Court of Victoria in the matter of Smith & Anor v Gannawarra Shire Council (2002) 4 VR 344. In particular Winneke P states the following at page 352:
“In this day and age when the courts are under pressure to deal with cases before them in an expeditious fashion and where, accordingly, case management has become a significant aspect of the curial process, the administration of justice still requires that the courts ensure so far as practicable that justice be administered even-handedly so that each party to a dispute is in a position within the bounds of reason to present his or her case to the court in its best light and in an orderly fashion. As Dawson, Gaudron and McHugh JJ pointed out in Queensland v JL Holdings Pty Ltd, in matters like this justice is the paramount consideration. In other words, courts should be astute to ensure that expediency is not permitted to usurp justice by refusing to grant an adjournment at the instance of a party in circumstances which will significantly interfere with the ability of that party to present his or her case effectively.”
In the present case there is no doubt in my mind that the application as currently formulated would appear to be inadequate when read in conjunction with what is now sought to be relied upon as the applicant's contentions of fact and law.
It is noted for the respondent's part, however, that in opposing the application for adjournment it has been submitted that the court should take into account that on the material currently before it, which I take to include the respondent's contentions of fact and law which I have read and considered, that the case is not one where it could properly be said there is an arguable case given that what essentially has occurred in this instance is an application directly to this court from a decision of a delegate, effectively bypassing the review process available to the applicant by means of an application to the MRT. That issue is somewhat complicated by the assertion now from the bar table that there was an application prepared and a belief in the mind of the applicant that it was filed with the MRT though refused.
In a matter of this kind, it is noteworthy that in his decision Winneke P in the case to which I referred uses the expression "within the bounds of reason". In the exercise of my discretion, I take into account that there has been a solicitor on record since 24 May 2004, that the parties were notified of this hearing date in October 2004, that there has been no material filed whatsoever in compliance with consent orders made by the court on 25 June 2005 and 24 October 2004. I conclude that the applicant has had adequate opportunity to file and serve material in support of the application, an amended application, facts and contentions and, at the very least, affidavit material in support of a ground which is now sought to be agitated, namely, that there had indeed been an application forwarded to the MRT and not accepted by that tribunal.
All of the issues that have been raised from the bar table relate to matters which could and should have been the subject of affidavit material before this court. In my view, it is not sufficient for applicants or their representatives to simply attend court on the day of the hearing against the backdrop of orders being made by the court on two previous occasions and then assert without any evidence whatsoever that there has been other material available which has yet to be obtained, whether it be from previous solicitors no longer acting or otherwise. In this case the fact remains that the solicitor on record has been on record since 24 May 2004. The applicant and the solicitors now acting for the applicant have known at least since that date of previous material in the possession of a previous solicitor. It is unacceptable and beyond, in my view, reason and certainly not within the bounds of reason for the court then to grant a further indulgence by way of an adjournment to the applicant in these circumstances.
Having considered the material before this court and noting the issues that are raised and agitated for and on behalf of the applicant, it seems to me that it is valid for the court to conclude that essentially what has occurred in this case is an application directly to this court from a decision of a delegate which I regard as a primary decision, and in my view pursuant to s.476 of the Migration Act 1958 the court does not have jurisdiction to entertain the application. I have regard to the submissions made for and on behalf of the respondent alternatively in relation to the issue of whether or not it could properly be claimed that there is jurisdictional error of a kind which the courts are familiar with following the decision of the High Court in S157.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Having considered the delegate’s decision and the principles of jurisdictional error, I am satisfied in any event that there is no jurisdictional error. For those reasons, in my view, this is a case which could not properly be said to be arguable and on that basis alone, leaving aside the lack of explanation for delay in bringing material properly before the court and/or filing any affidavit material whatsoever in support of the application for adjournment and/or failing to comply with the previous orders by consent, it would follow that the application for adjournment should be refused. The application is refused.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 24 January 2005
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