Federal Court Dismisses Refugee Visa Application Due to Procedural Issues

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

S1101 of 2003 v Refugee Review Tribunal [2004] FCA 496 S1101 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR N 1098 OF 2003 EMMETT J 3 FEBRUARY 2004 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1098 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: S1101 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

[APPELLANT]

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

[APPELLANT] OF ORDER: 3 FEBRUARY 2004

[APPELLANT]

THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the second [APPELLANT]'s costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1098 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: S1101 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

[APPELLANT]

[APPELLANT]

JUDGE: EMMETT J

DATE: 3 FEBRUARY 2004

PLACE: [APPELLANT] FOR

JUDGMENT 1 On 25 May 2000 the Refugee Review Tribunal ('the Tribunal') affirmed the decision of a delegate of the Minister for Immigration & Multicultural & Ethnic Affairs ('the Minister') to refuse to grant a protection visa under the Migration Act 1958 (Cth) to the applicant. Thereafter, the applicant became a party to proceeding S 89 of 1999 in the High Court. On 29 May 2003 a draft order nisi was filed on behalf of the applicant in the High Court pursuant to orders made by Gaudron J. The draft order nisi sought prerogative writ relief in respect of the Tribunal's decision on the ground that the Tribunal failed to accord the applicant procedural fairness. That proceeding was remitted to this Court pursuant to orders made by [NAME] J on 25 November 2002. 2 On 27 October 2003 I ordered the applicant to file and serve on or before 20 January 2004 a statement of contentions of relevant facts and law setting out particulars of the grounds relied upon and any affidavits which the applicant intended to rely on at the hearing. When the proceeding was commenced in the High Court, the applicant was represented by a solicitor, [NAME]. On 3 November 2003 [NAME] wrote to the applicant saying that unless the applicant contacted [NAME] within 14 days of that letter, they would withdraw from representing the applicant. 3 It appears that there was no contact and, on 14 January 2004, the solicitor filed a notice of withdrawal. In the meantime, on 9 December 2003 the solicitor for the Minister had written to the applicant drawing attention to the intention of the solicitor to withdraw and to the orders that I made on 27 October 2003. The letter said that, in the event that the applicant did not comply with the orders that I made, the Minister would seek to have the application dismissed with costs pursuant to O 10 r 7(1)(a) of the Federal Court Rules. The letter was addressed to the last known addresses of the applicant. 4 The Minister's solicitor subsequently received a letter of 20 January 2004 from the applicant saying that, because of Christmas and New Year holidays, it was too hard to find another solicitor. The applicant therefore requested an extension of time. 5 The matter was called on for hearing today and there was no appearance for the applicant. The Minister's solicitor therefore asked that the matter be dismissed pursuant to O 10 r 7. In the absence of any submissions on behalf of the applicant as to why any extension should be granted, I do not consider that it is appropriate to grant one.

Accordingly, I propose to accede to the Minister's request and to order that the application be dismissed with costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 27 April 2004 Counsel for the Applicant: [redacted]

Solicitor for the [APPELLANT]: Australian Government Solicitor

Date of Hearing: 3 February 2004

Date of Judgment: 3 February 2004