FEDERAL COURT OF AUSTRALIA IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIADISTRICT REGISTRY SG 53 of 1998 BETWEEN: dharmander singh Applicant AND: the minister for immigration and multicultural affairs Respondent JUDGE(S): MANSFIELD J DATE OF ORDER: 1/12/98 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SG 53 of 1998 BETWEEN: dharmander singh Applicant AND: the minister for immigration and multicultural affairs Respondent JUDGE: MANSFIELD J DATE: 1 december 1998 PLACE: ADELAIDE REASONS FOR JUDGMENT HIS HONOUR: This matter involves an application to review a decision of the Refugee Review Tribunal of 18 March 1998 refusing to grant the applicant a protection visa under the Migration Act 1958. It was instituted on 22 April 1998. Initially the applicant had solicitors acting for him, but those solicitors pursuant to the Federal Court Rules ceased to act for him prior to the first directions hearing on 21 August 1998. On that date directions were given to ensure the applicant was informed of the further directions hearing, and of the risk that his application for review may be dismissed if he did not attend on that occasion. A further directions hearing was fixed for 4 September 1998. On that date the applicant attended in person and directions were given setting a program for the filing of proper particulars of his grounds of application and any further affidavit material and other matters with a view to the matter being listed for hearing on 17 December 1998. A further directions hearing was fixed for 30 October 1998 to ensure that the directions then given were complied with, so that the hearing could proceed. The applicant was served with the detailed directions given on 4 September 1998. The applicant failed to comply with those directions. Shortly prior to the next directions hearing, he was given notice by the respondent of the intention to apply to have the application struck out if he did not comply with those directions. That notice was given by letter of 14 October 1998. On 30 October 1998 the applicant again attended the directions hearing in person. He sought to have the matter adjourned for a considerable time. That application was refused. The directions given on 4 September 1998 were varied, so as to extend the time for him to comply with the filing and service of a statement of proper particulars of his claim to relief and any affidavit material, and in other respects, to comply with the directions necessary to ensure the matter proceeded to hearing on 17 December 1998. On that occasion the hearing date was fixed for 21 December 1998. The applicant has not complied with those directions. On 13 November 1998 he swore an affidavit in the following terms: "1. I wish to postpone the Directional Hearing on the 2nd of December at 9.15am and the Hearing date which is currently the 21st December 1998 at 10.15am. 2. The reasons for this is as follows: * Because of my work commitments which are away from my home town (Renmark) for the next two months as this is seasonal work which gives me financial statues to provide for this case such as travel costs, lawyers and consults with lawyers. * As at the end of November I will be getting married to my long term partner of one (1) year and need time to organise this. * Also I need more time to work on my files and case to present to the court." Upon receipt of that affidavit, my associate communicated in writing to the respondent's solicitors to elicit their response. On 23 November 1998 the respondent, in writing, informed my associate that the proposed adjournment (which had previously been sought and successfully resisted), was still opposed. On 26 November 1998 the respondent was informed, by letter from my associate, of that attitude and the following comments were included, and I quote: "In view of the Minister's refusal to accede to your request, the directions hearing will go ahead on 1 December 1998 as planned. If you wish to pursue your application to have the 21 December 1998 hearing adjourned, you may do so at the directions hearing. You should also ensure that you have complied with the directions given on 30 October 1998." The applicant has not attended today. I am informed by my associate that his wife contacted her this morning to inform her that the applicant would not attend as he was working elsewhere and did not wish to lose his employment. That was a matter previously addressed by him orally at the last directions hearing on 30 October 1998, when the further directions hearing was fixed for today. His affidavit of 13 November 1998 is sparse. The reasons given for seeking the adjournment are laconic, particularly given the seriousness of the issues with which he is confronted and the fact that his earlier application for an adjournment of the hearing made on 30 October 1998 was refused on much the same grounds. He then sought a prolonged adjournment and it was refused. The affidavit reasserted: "A wish for both court dates to be postponed (sic) to allow me more time. It would be highly appreciated if you could adjourn the dates for three months." The grounds of his request contained in his affidavit are not expanded upon. In my view, the applicant is demonstrating an irresponsible attitude to his obligation to comply with the directions of the court and is demonstrating a lack of a real desire on his part to have his application for review determined in an expeditious way. He has not attended the hearing this morning. His failure to comply with the directions means that the application is not presently ready for hearing as it was contemplated to be. In those circumstances the respondent applies under O 54B r 6 and O 10 r 7 of the Rules for the application to be dismissed. I think the applicant's attitude warrants the making of such an order. The alternative seems to be simply to allow him to come and attend as and when it is convenient to him, notwithstanding that a decision has been made by the Refugee Review Tribunal that his application for a Protection Visa should be refused. Accordingly I propose to make an order that his application be dismissed. Mindful of the serious consequences of such an order, I also propose to stay the operation of that order for 10 days. I direct the order which I make today to be notified to him in writing through solicitors for the respondent and in accordance with the address for service which he provided at the last directions hearing. That notice should be sent today. The respondent should file an affidavit proving compliance with this direction. He will have to apply within that 10-day period to have the matter restored to the list, and I will list at short notice, within that 10-day period, a time for him to do so. If he does not do so the application will stand dismissed. Accordingly the orders I make are: (1) Application dismissed. (2) Order dismissing application stayed for a period of 10 days. (3) Leave to the applicant to apply on short notice to the respondent on or before 15 December 1998 to have the application restored, such notice to be given in writing and to be accompanied by such affidavit material as the applicant may rely upon to restore the matter to the list. (4) In the event that the applicant makes such an application, direct that the applicant also comply with directions (2) and (3) given on 30 October 1998 by 15 December 1998, and the time to comply with those directions is extended to 15 December 1998. (5) Costs of today to be the respondent's costs in any event. (6) Unless the matter is restored to the list by any order made on or by 18 December 1998, costs of the application to be paid by the applicant to the respondent. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield Associate: Dated: 1 December 1998 Solicitor for the Applicant: No appearance Counsel for the Respondent: Mr R McClure Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 December 1998 Date of Judgment: 1 December 1998