FEDERAL COURT OF AUSTRALIA

Applicant S 1901 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 610

APPLICANT S 1901 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N380 of 2004

JACOBSON J

4 MAY 2004

SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

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

REASONS FOR JUDGMENT

1                     This is one of eight motions under O 52 r 10(2)(b) for an extension of time to file an application for leave to appeal against the judgment of Emmett J given on 20 February 2004: see Applicant S 1174 v Refugee Review Tribunal [2004] FCA 289.  The motion was filed on 19 March 2004.  An explanation has been given for the delay and I do not decide the application on the basis that the application is out of time.

2                     The relevant background to the proceedings and the reasons why his Honour refused to make an order nisi are referred to in my judgment in the matter of Applicant S1198 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 577. 

3                     The applicant has filed an affidavit in support the application for an extension of time.  The affidavit states that the applicant was advised by the solicitor, who was then acting, that his case was dismissed and that the advice was given only on 18 March 2004.  The affidavit also deposes to difficulties which the applicant had in communicating with his former solicitor.  The affidavit says that the applicant has attempted to contact his former solicitor through another lawyer from Melbourne.

4                     The applicant has also filed a motion that the application be transferred to the Melbourne registry.  The applicant says in the affidavit that he was supposed to have been represented by Mr Adrian Joel in the proceedings in this court and he refers again to the difficulties he had in communicating with Mr Joel’s firm.  He also refers to difficulties which he has experienced in obtaining legal representation. 

5                     The affidavit points out that the court has given him an opportunity to represent himself over the telephone.  The matter has been dealt with over the telephone this afternoon and it seems to me that the matter having been argued and considered by me carefully, there is no reason to transfer the matter to Melbourne.

6                     As I have said, the applicant appeared in person.  He told me that he could not argue his case without legal representation.  He said that he had applied for pro bono legal assistance and that he needs a month to get legal assistance in Melbourne.  He also said that he has applied to the Immigration Department and to his immigration agent for assistance but that he has not been sent the whole file.  He referred at some length to the difficulties that he has in putting the case to me without the benefit of legal representation.

7                     Mr Harris who appeared for the Minister pointed out that the reason why Emmett J refused the application for an order nisi was that there was no evidence to make good the contention that the case was covered by the principles referred to by the High Court in Muin v The Refugee Review Tribunal & Ors, S36 of 1999 (“Muin Class Action”) and Nancy Lie v The Refugee Review Tribunal & Ors, S89 of 1999 (“Lie Class Action”).  Mr Harris made the point that whilst the difficulties to which the applicant referred in his affidavit are troubling they do not advance the case so as to overcome the deficiency which was identified by Emmett J.

8                     In the present case the applicant was a party to the Lie Class Action.  His complaint was that he was misled in the process of being supplied with the documents known as the part B documents.  As Mr Harris submitted, Emmett J refused the application for an order nisi because there was no evidence which went to that issue.  As Mr Harris also submitted, there are still no documents, nor has anything been pointed to which overcomes that deficiency.

9                     Mr Harris submitted that whilst it is regrettable that there have apparently been poor communications between the applicant and his former solicitor, there is no suggestion that there will be any such evidence to meet the deficiencies identified by Emmett J.

10                  Mr Harris also referred to the reasons for decision of the Refugee Review Tribunal.  He submitted that the applicant's case had been dismissed because he was rejected on credibility grounds and that this is not a case in which the applicant could bring himself within the principles stated in the decision of the High Court in Muin v The Refugee Review Tribunal (2002) 76 ALJR 966 (“Muin”).

11                  Mr Harris also submitted that if, contrary to his submissions, evidence is able to be filed at some stage in the near future by the applicant, there is no estoppel and no Anshun estoppel which would prevent the applicant from commencing fresh proceedings.  Emmett J referred to this in his judgment at [28] and pointed out that the Minister had assured the court that no submission would be made in any future proceedings that the refusal of an order nisi would constituted a bar to the commencement of fresh proceedings claiming the same relief.

12                  Although it does seem to me that the evidence discloses that the applicant has had difficulties which might ordinarily warrant the grant of an adjournment, I have come to the view that it is futile to do so in the present case.  This is because, as I have said on several occasions, Emmett J refused to grant an order nisi because of the lack of evidence.  As I have also said, his Honour observed that the refusal of the order nisi does not constitute a bar to the commencement of fresh proceedings.

13                  I accept Mr Harris' submission that the evidence before me does not establish that there was affidavit evidence before Emmett J which made good the contention that the case fell within the principles stated by the High Court in Muin and there is still no such evidence before me.

14                  For those reasons I have come to the view that nothing has been put to suggest that there was any doubt about the correctness of his Honour's decision and I am satisfied that an extension of time would be futile because there is no evidence to satisfy me that the applicant has any prospects of success on an application for leave to appeal. 

15                  For the same reason it is inappropriate to make an order transferring the proceedings to Melbourne.

16                  I note that Mr Harris has pointed out that notwithstanding the dismissal of the application for leave to appeal the applicant's present bridging visa will not expire for 28 days from today's date. That will give the applicant sufficient time to see if he is able to contact a solicitor in Melbourne.  I note that some contact has already been made and it will also give the applicant sufficient time to bring a fresh application assuming that he and his advisers are able to mount such an application in fresh proceedings.

17                  Accordingly, the order that I propose to make is that the motion for an extension of time is dismissed.  I make no order as to costs.

Associate:

Dated:              4 May 2004