FEDERAL COURT OF AUSTRALIA

NAPX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1148

MIGRATION – protection visa – appeal a decision of the Refugee Review Tribunal, which affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs.

PRACTICE AND PROCEDURE – application for an adjournment  – where the application is hopeless and out of time.

Migration Act 1958 (Cth) s 36(ii), s 426(a)

NAPX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N593 OF 2003

HILL J

SYDNEY

26 SEPTEMBER 2003

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent Minister’s costs.

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

REASONS FOR JUDGMENT

1                     Before the Court is an application for judicial review of a decision of the Refuge Review Tribunal (‘the Tribunal’) given on 5 October 2001 affirming the decision of a delegate of the respondent Minister not to grant to the applicant a Protection Visa.  The applicant is unrepresented and sought an adjournment when the matter came on for hearing this morning. The application itself was only filed on 16 May 2002, so that at least, prima facie it was filed out of time.

2                     The reasons for adjournment were said to be that the applicant had not been working and indeed, for some time at least, was in detention, and needed to arrange money to come from overseas to pay for a lawyer and that proofs of his case had been lost when he was in detention.  The substantial questions, as I see them, are whether I can be satisfied that in something like one month's time, the applicant would be in a position to have a lawyer appearing for him.

3                     The applicant has been in contact with a migration agent whom I understand has been struck from the register but certainly has not arranged, at the moment, any solicitor to appear for him, presumably because he does not have the necessary money to pay a lawyer.  The Tribunal wrote to the applicant on 30 August 2001 advising him that it was unable to make a favourable decision on the information filed with it and therefore, that he should come to a hearing of the Tribunal which was scheduled on 3 October 2001.  It seems that that letter was never received.

4                     It was sent to the migration agent who acted for the applicant and to the applicant but at the migration agent's address.  The application to the Tribunal authorised the migration agent to receive documents on the applicant's behalf.  The migration agent, it seems, also was unable to contact the applicant who had moved but had not advised the Tribunal of the change of address or apparently his migration agent.  It does seem that the applicant had changed an address on 1 June 2001 and had notified the Minister, though not the Tribunal. 

5                     Not surprisingly the Tribunal found against the applicant at the hearing and indicated, for reasons which it set out, that it was not satisfied that the applicant was a person to whom Australia had protection obligations.  The Tribunal's view therefore he did not satisfy the criteria set out in s 36(ii) of the Migration Act 1958 (Cth) (‘the Act’) for a protection visa.  I have perused the Tribunal's reasons and cannot see in them any jurisdictional error.  If there were any argument at all it would have to, it seems to me, stem upon the non-receipt of the Tribunal's notice in circumstances where the Tribunal knew of the fact that the applicant had changed the address and had not actually received the notice.  There are specific provisions in the Act dealing with service and having regard to the provisions of 426(a) of the Act it would be difficult, if not impossible, for the applicant to succeed on an argument of jurisdictional error brought about by his failure to receive, personally, the notice, made in circumstances where there was deemed service.

6                     In these circumstances it seems to me that to allow an adjournment will be futile.  It is also relevant as was said to be the case by the Full Court of this Court in Adai v Minister for Immigration and Multicultural Affairs [1999] FCA 1702, that the only possible date this year that I would be able to allocate for the hearing would be on 21 October and that that itself is outside the period of one month that the applicant has requested.  Otherwise it would be impossible to arrange a hearing date until some time in February of next year.  I am conscious of the need to balance, on the one hand, the public interest in having applications of this kind dealt with the obvious need for justice to an unrepresented litigant.  However, in the present circumstances where the changes of success are minimal, where matters of evidence would be irrelevant and where no steps have really been taken to obtain a lawyer for some years and indeed where the application was in any event made out of time, I do not think it is in the overall interests of justice that I grant the adjournment and I have indicated to the applicant that I refuse to grant the adjournment to him. 

7                     The applicant was unable to indicate, not surprisingly in the absence of a lawyer, that there was any jurisdictional error in the Tribunal's reasons.  In these circumstances not only must the application be dismissed for this reason, but it would also follow that the application was made out of time so that the Court would have no jurisdiction in any event to deal with it.  I accordingly dismiss the application and order the applicant to pay the Minister's costs of it.

Associate:

Dated:              26 September 2003