Applicant A78 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 220

FEDERAL COURT OF AUSTRALIA

Applicant A78 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 220 APPLICANT A78 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 649 of 2003 MANSFIELD J 27 FEBRUARY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 649 OF 2003

BETWEEN: APPLICANT A78 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 27 FEBRUARY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 649 OF 2003

BETWEEN: APPLICANT A78 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 27 FEBRUARY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT

introduction 1 The applicant is a young man from India, who is of the Hindu religion. He arrived in Australian on a student visa on 7 June 1999. Some time later, on 8 January 2001, he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). To be eligible to be granted the visa it was necessary that the applicant satisfy the delegate of the respondent who considered his application, and on review the Refugee Review Tribunal (the Tribunal), that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). In practical terms that means that the decision-maker had to be satisfied that he is a refugee, as defined in Art 1A(2) of the Convention. 2 His application for a protection visa was refused by a delegate of the respondent on 1 March 2001. On 26 June 2002 the Tribunal affirmed the decision not to grant him a protection visa. He was subsequently notified of that decision. By application to the High Court, on 14 February 2003, the applicant sought prerogative orders, essentially to quash the decision of the Tribunal on the ground that it involved jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476;[2003] HCA 2. By order of 11 June 2003 the matter was remitted to this Court for further hearing and determination. At the time the applicant was represented. 3 On 10 November 2003 directions were given providing him with the opportunity to amend his application and requiring him to file and serve an outline of submissions and other material in support of his application so that it might be listed for hearing promptly. He did not comply with those directions. In fact on 28 January 2004, he filed notice of acting in person. The matter was listed for further directions on 20 February 2004. The applicant did not attend. 4 The matter then was listed for hearing today. The applicant was notified by letter of 20 February 2004 of the hearing and invited to indicate whether he intended to appear in person or in some other manner. He indicated to the Court yesterday that he proposed to appear by telephone today. He has done so. Although he indicated that he is a little unwell, suffering from a cold, he informed the Court that he was in a position to present his contentions on the application today. The application has therefore proceeded.