FEDERAL COURT OF AUSTRALIA

Applicant A152 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1051

APPLICANT A152 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 132 OF 2003

MANSFIELD J

2 OCTOBER 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The purported notice of discontinuance filed on 26 May 2003 be set aside.

2.                  The orders made on 20 June 2003:

(a)                            giving leave to discontinue the proceedings;

(b)                           that the application do stand dismissed the said notice of discontinuance having been earlier filed and served; and

(c)                            that the applicant pay the costs of the first respondent;

be set aside.

3.         The former solicitor for the applicant Mark Wallis Clisby do pay to the applicant costs of the proceedings on and from 21 June 2003 to the date of these orders.

4.         The former solicitor for the applicant Mark Wallis Clisby do pay to the first respondent costs of the proceedings on and from 21 June 2003 to the date of these orders and costs of and incidental to the hearing on 20 June 2003.

5.         The application be listed for further directions at a time to be fixed.

6.                  There be liberty to any party to apply.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant in this matter is a daughter of the applicant in Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs in which I have just given judgment:  [2003] FCA 1050.  It is a related proceeding brought by the applicant’s father as next friend, and it is common ground that the proceeding should follow the same fate as the proceeding in that matter.  In relevant respects, the circumstances are the same.

2                     The applicant was born in Australia on 28 May 1999.  Her father brought an application for a protection visa following his arrival in Australia.  Subsequent to his arrival in Australia, his wife and their two children came to Australia and joined in his application for a protection visa.  They did not themselves claim to be refugees under the Refugees Convention as amended by the Refugees Protocol, but sought to qualify simply as members of the applicant’s family.  The present applicant was not then covered in the application because she was not yet born.

3                     Hence, she applied in her own right for a protection visa on 12 November 1999.  Her application at all times was made and maintained by her father on her behalf.  Her application was refused by a delegate of the respondent on 28 February 2002.  The delegate’s decision was affirmed by the Refugee Review Tribunal (the Tribunal) on 14 May 2002.  As the Tribunal’s decision indicates, her application was refused simply because it was a dependant claim to be a refugee rather than a personal claim to be a refugee.

4                     Proceedings in her case to set aside the Tribunal’s decision were instituted in the High Court on 2 August 2002 and were remitted to this Court by order on 7 February 2003.  Orders were made on 28 April 2003 setting down a timetable for the filing and service of documents.  A purported notice of discontinuance signed by her solicitor was filed on 26 May 2003.  There was also filed by her former solicitor a notice of acting in person on 27 May 2003, under the signature of her father.  Orders made on 20 June 2003 gave leave to discontinue the application, and effectively treating the application as discontinued as at that date. 

5                     I do not consider it is necessary at present to address whether the applicant requires a formally appointed next friend to conduct the proceedings on her behalf.  The findings made in Applicant A26 of 2002 are equally applicable to the present matter.  Neither the applicant through any next friend, nor her father in his personal capacity, gave instructions to file and serve the notice of discontinuance dated 26 May 2003 or to seek leave to discontinue the application.  That was done by her former solicitor, apparently in an erroneous belief that such instructions had been given.  The letter to her father of 30 April 2003 identified both applications as matters upon which instructions were sought, but they were not given.  There was no authority given to file the notice of acting in person of 27 May 2003.

6                     For the reasons given in Applicant A26 of 2003, I consider it appropriate in this matter also to set aside the notice of discontinuance filed on 26 May 2003 and ordered to take effect from 20 June 2003.  I also make consequential orders setting aside the orders made on 20 June 2003 giving leave to discontinue the application, treating the application as having been discontinued and for the costs of the first respondent.  The consequence is that the application itself is still on foot.  It will be necessary to fix a further directions hearing to determine how the application should proceed to final determination.  The former solicitor for the applicant does not oppose an order that he pay the reasonable costs of the applicant and of

the first respondent thrown away by reason of the filing of the notice of discontinuance and of the notice of motion, so I make orders accordingly.

Associate:

Dated:              2 October 2003