FEDERAL COURT OF AUSTRALIA

Applicant A341 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 466

APPLICANT A341 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 828 OF 2003

LANDER J

16 MARCH 2004

ADELAIDE

THE COURT ORDERS THAT:

1.      The application for leave to appeal be dismissed.

2.      The applicant pay the respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

1                     On 21 November 2003 the applicant brought an application for an extension of time to appeal from an order made by Mansfield J on 8 October 2003, dismissing the applicant's application for the review of a decision of the Refugee Review Tribunal, affirming a decision of a delegate of the respondent to refuse the applicant a protection visa.

2                     His application for an extension of time within which to appeal was accompanied by an affidavit, in which he deposed that he was advised that the time within which he had to appeal the order of Mansfield J was 28 days.  He also says in that affidavit that he went to the Federal Court on 18 November 2003, when he was advised that the appeal time was 21 days.

3                     When he first inquired of the Federal Court about the time within which he ought to lodge his notice of appeal, more than 40 days had passed since the order of Mansfield J.  In those circumstances, whether he was advised that the appeal time was 28 days or not seems to me to be irrelevant.

4                     The application for an extension was also accompanied by a draft notice of appeal, in which the only proposed ground is ‘erronians [sic] of law and miscarriage of justice’.

5                     The applicant is an Indian citizen who entered Australia on 30 July 2001.  On 16 August 2001 he lodged an application for a protection (class XA) visa.  On 21 September 2001 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refused to grant a protection visa.  On 27 September 2001 the applicant applied to the Refugee Review Tribunal for a review of that decision.  On 5 March 2002 the RRT affirmed the delegate's decision not to grant a protection visa.  Nearly nine months later, on 3 December 2002, the applicant brought proceedings against the Minister in the High Court for the issue of the constitutional writs in relation to the RRT decision.  On 7 February 2003 Hayne J remitted those proceedings to this court for hearing.

6                     On 23 June 2003 Selway J made the following orders:

‘1.   The applicant, by 31 July 2003:

       (a)   If an extension of time within which to commence the proceedings is required, file and serve a notice of motion seeking an extension of time together with an affidavit by the applicant personally explaining the reasons for the delay in commencing the proceedings and deposing the reasons why an extension of time should be given.  The notice of motion should be made returnable for hearing at the next directions hearing.

       (b)   file and serve an amended application specifying precisely the error or errors upon which the decision under review is challenged.

       (c)    file and serve further affidavit material to lay a foundation for the allegations made in the amended application.

       (d)   file and serve outline of submissions.

       (e)    file and serve a memorandum stating:

·          the state or territory in which the applicant is residing;

·          whether the applicant wishes to be present at the hearing of the application;

·          whether the matter is one that could be transferred to the Federal Magistrates Court;

·          whether the applicant objects to transfer to the Federal Magistrates Court and, if so, the grounds for objection.

2.    In the event that an extension of time is sought, the respondent is at liberty, within 2 weeks of receiving the notice of motion, to file and serve an affidavit in opposition to the extension of time.

3.    The respondent, within 3 weeks of receiving the applicant's amended application and supporting material pursuant to Order 1 above:

       (a)   file and serve any affidavits in reply.

       (b)   file and serve submissions in reply.

4.    The directions hearing is fixed for Friday 15 August 2003 at 9.00 am.

5.    In the event that Order 1 is not fully complied with, the applicant will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.

6.    Liberty to apply.’

7                     On 15 August 2003 the matter came before Mansfield J when the applicant advised his Honour that he wished to represent himself and have the matter transferred to the New South Wales registry.

8                     On 28 August 2003 the matter came before Mansfield J once again, and the matter was further adjourned to enable the applicant to file a notice of motion seeking the relief which he had foreshadowed on 15 August 2003.  On 9 September 2003 the applicant filed a notice of motion seeking the following orders:

‘1.   The case may be transfer to Federal Court of Australia New South Wales district registry.

2.    I have been in Villawood detention, therefore I cannot afford to travel to Adelaide to deal with my case.

3.    I will be representing my case in Sydney Federal Court.’

9                     On 11 September 2003 Mansfield J held another directions hearing, which the applicant did not attend.  At that time, Mansfield J made the following orders:

‘1.   If there is a change of solicitors or if the applicant intends to appear in person, notice thereof be given by 22 September 2003.

2.    If the applicant wishes an extension of time to have instituted the application, any notice of motion and supporting material be filed and served by 26 September 2003 (including the explanation for the delay and to demonstrate an arguable case on the merits).

3.    If the applicant wishes to pursue a transfer of the proceeding any supporting material be filed and served by 26 September 2003.

4.    Adjourn directions hearing to 9.00 am, 8 October 2003.

5.    Liberty to apply.’

10                  On 30 September 2003 Mansfield J's associate wrote to the applicant and advised him of the orders made by Mansfield J on 11 September 2003 and advised him that the next directions hearing would be at 9 am on 8 October 2003.  On 8 October 2003 the applicant did not attend again, and Mansfield J made the following orders:

‘1.   Application dismissed.

2.    Applicant to pay costs of first respondent including disbursements fixed at $1500.00, including costs in the High Court.

3.    Direct registry not to draw up, sign and seal orders 1 and 2 above until after 5:00 pm, 22 October 2003.

4.    Leave to the applicant by no later than 20 October 2003 to apply by motion to discharge orders 1 and 2 made today and to file such affidavit material as he may be advised in support of that application, and direct any such application be listed for hearing at 9:00 am on 24 October 2003.

5.    Liberty to apply.’

11                  On the same day, Mansfield J's associate again wrote to the applicant advising him of the orders which had been made that day.  She advised the applicant:

‘Unless you make an application to the Court in accordance with order 4 above by 20 October 2003, the order dismissing your application with costs will become final.’

12                  No application was made and, as a result, the order became final.

13                  This application for leave to appeal first came before me on 19 December 2003.  The applicant appeared by telephone.  He had the assistance of his migration agent, Mr Khan, who interpreted for him.  Two days before that hearing the respondent had issued a subpoena directed to the applicant's former solicitor, Mr Clisby, for the production of documents.  On 19 December 2003, I made the following orders:

‘1.   Direct Applicant to file any affidavits upon which the applicant intends to rely by 2 February 2004.

2.    Direct Applicant to file any applications he wishes to advance, other than the application for an extension of time within which to appeal by 2 February 2004.

3.    Adjourn hearing to 9:30 am on 18 February 2004.

4.    List the matter at 9:30 am on 17 February 2004 for the return of any subpoena.’

14                  On 16 January 2004 the respondent issued a subpoena directed to Mr Khan, also seeking the production of documents.

15                  The matter came on before me again on 17 February 2004.  The applicant had not complied with any of my orders made on 19 December 2003.  At that hearing, Mr Clisby produced the documents the subject matter of the subpoena and I directed that the documents be sealed.  Mr Roder, counsel for the Minister, sought leave to inspect the documents.  I did not make an order at that stage, because I was not satisfied on the material before me that any communications between the applicant and his former solicitor were relevant.

16                  I asked the applicant on that occasion why he had not complied with my orders and he said, ‘because Mr Khan was away.  I did not know what to do’.  Mr Khan, who was also present by telephone, said that he had advised the applicant to comply with my orders.  I asked the applicant what grounds he had to set aside Mansfield J's orders.  He said, through Mr Khan: ‘He is saying that he sent a letter that my file to be transferred to Sydney, and I didn't have any lawyer or anybody and I didn't know nothing about it.’

17                  That was the sole ground offered to set aside Mansfield J's orders.  During the hearing of 17 February 2004, Mr Khan advised me that he had no documents to produce in answer to the subpoena.  The applicant asked for further time to comply with the orders made on 19 December 2003.  I made the following orders:

‘1.   Extend the time within which the applicant has to file any affidavits upon which the applicant intends to rely for a further 21 days.

2.    Direct the applicant to make any application for leave to amend the notice of appeal and to file any draft amended notice of appeal within 21 days.

3.    The hearing on the return of the subpoenas issued to Mr Khan be adjourned to 16 March 2004 at 9:30 am.

4.    The question of costs be reserved.’

18                  After making the orders to which I have referred, I said to the applicant:

‘HIS HONOUR:   If you do not comply with these orders, you can expect that the Minister will apply to have the application for leave to appeal dismissed.

APPLICANT:   Thank you.

HIS HONOUR:   So it's in your best interests to comply with the orders.  Do you understand?

INTERPRETER:   Yes.

HIS HONOUR:   Mr Khan, are you present?

MR KHAN:   Yes.

HIS HONOUR:   I have made these orders.  I have extended the time within which [Applicant A341] has to file any further affidavits for a period of 21 days.

MR KHAN:   Right.

HIS HONOUR:   Secondly, I have directed that he make any application for leave to amend his notice of appeal within 21 days.

MR KHAN:   Right.

HIS HONOUR:   Thirdly, I have indicated I will hear the return of these subpoenas on 16 March at 9.30.

MR KHAN:   Right.

HIS HONOUR:   You should be present at that time, because I will deal with the question of whether or not you need to comply with the subpoena at that time.

MR KHAN:   Okay.

HIS HONOUR:   You should advise Applicant A341 that if he doesn't comply with these orders there's a risk that his proceedings will be dismissed.

MR KHAN:   Right.

HIS HONOUR:   You should advise him that he must identify the grounds upon which he relies in his notice of appeal.  Do you understand that?

MR KHAN:   Yes, your Honour.

HIS HONOUR:  I take it that, as an immigration consultant, you are familiar with all these matters.

MR KHAN:   Yes.  I will advise him accordingly.

HIS HONOUR:   If you will advise him that it's in his best interests to comply with my orders.

MR KHAN:   Yes, I will.

HIS HONOUR:   You might also tell him that if he doesn't comply it would be unlikely that I'll be giving him any further indulgence.

MR KHAN:   Yes.’

19                  The application was called on again this morning.  The Court staff attempted to make contact with the applicant immediately prior to the listed time for hearing.  The telephone number at which contact had been previously made was engaged.  The court staff made further attempts between 9.30 am and 10.00 am to make contact on that telephone number, but during the whole of that period of time the telephone number was engaged.  I adjourned the hearing of the application until 10.15 am, so that one further attempt could be made to make contact with the applicant on that telephone number.  At 10.15 am the Court staff were able to get an answer on that telephone number.  Mr Khan was present, but the applicant was not.

20                  Mr Khan advised me that the telephone number which had been contacted was his telephone and that he had advised the applicant that the applicant no longer had his permission to use that telephone for the purpose of these Court proceedings.  He said he spoke to the applicant about a week ago and advised him that he should get further advice and make other arrangements with the Court to be present by telephone.  Mr Khan said he was no longer acting for the applicant as his migration agent and, in fact, had ceased to be a migration agent on 1 December 2003.

21                  Mr Roder has made an application to have the application for an extension of time within which to appeal dismissed.  He relies upon the failure of the applicant to comply with the orders made by me on 19 December 2003 and 17 February 2004, and he asks me to have regard to the applicant's absence today as evidence that the applicant does not intend to prosecute this application.

22                  I am satisfied that the applicant has failed to comply with my orders of 19 December 2003 and 17 February 2004.  I have been given no explanation whatsoever why the applicant has failed to comply with the orders, except that the applicant has not been able to obtain legal advice.

23                  In my opinion, this application for leave to appeal should be dismissed for three reasons.  First, the applicant needs leave to appeal from Mansfield J's orders, which are interlocutory.  No leave has been sought.  Secondly, the applicant has not articulated any grounds for appeal.  The ground identified by Mr Khan on 17 February 2004 was no ground at all.  Thirdly, and more importantly, the applicant has failed to comply with my orders of 19 December 2003 and 17 February 2004.  It has to be remembered that his original application was dismissed for the same reason; that is, his failure to comply with orders of the Court.

24                  In those circumstances, it appears to me to be appropriate to dismiss the application for leave to appeal upon the basis that the applicant has failed to comply with orders of the Court directing the applicant to take a step in the proceedings.  There will be an order that the application for leave to appeal is dismissed.  There will be an order that the applicant pay the respondent's costs of and incidental to the application.

Associate:

Dated:              22 April 2004