SHLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 254

FEDERAL COURT OF AUSTRALIA

SHLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 254 Migration Act 1958 (Cth) ss 36(2), 425 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Judiciary Act 1903 (Cth) s 39B Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 applied Wati v the Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 referred to SHLB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 410 of 2003 MANSFIELD J 2 MARCH 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 410 OF 2003

BETWEEN: SHLB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 2 MARCH 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application by notice of motion dated 13 February 2004 to reinstate the application made on 28 March 2003 is refused. 2. The applicant pay to the respondent costs of the notice of motion. 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 410 OF 2003

BETWEEN: SHLB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 2 MARCH 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT

introduction 1 On 13 February 2004 the applicant applied by motion for an order to reinstate his application in the Court. His application was dismissed on 3 October 2003 without a full hearing. It appears that the application was dismissed at that time because orders of the Court had not been complied with. To address the present motion it is necessary to refer in a little detail to the principal application and how it came to be decided as it did. 2 The applicant is a citizen of Nepal. He arrived in Australia on 25 May 2002 and shortly after that time applied for a protection visa under the Migration Act 1958 (Cth) (the Act). On 15 August 2002 a delegate of the respondent refused to grant him the protection visa for which he had applied. He sought review of the delegate's decision by the Refugee Review Tribunal (the Tribunal). On 29 January 2003 the Tribunal affirmed the decision of the delegate of the respondent. 3 The applicant was dissatisfied with the Tribunal's decision. He engaged solicitors. On 28 March 2003 an application was brought in this Court for orders to set aside the decision of the Tribunal and for other orders. The application was made under s 39B of the Judiciary Act 1903 (Cth). It is plain, in the light of the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2, that the Court could make the order sought on the application only if jurisdictional error on the part of the Tribunal were established. 4 In accordance with the procedures in place, on 26 August 2003 the Court gave directions so that the applicant's case could be prepared for trial and a hearing date could be fixed. A directions hearing was fixed for 3 October 2003. The directions were not complied with. On 3 October 2003 the solicitor for the applicant appeared on the applicant's behalf. It was acknowledged that the applicant had not complied with the directions given. It was apparently indicated that the applicant had not given any instructions to his solicitor in relation to the matter. In those circumstances, the application was dismissed with costs.