Applicant A226 of 2003 v Refugee Review Tribunal [2004] FCA 372

FEDERAL COURT OF AUSTRALIA

Applicant A226 of 2003 v Refugee Review Tribunal [2004] FCA 372 APPLICANT A226 OF 2003 v REFUGEE REVIEW TRIBUNAL AND SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 775 OF 2003 LANDER J ADELAIDE 22 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 775 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: APPLICANT A226 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 22 MARCH 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The applicant's application for the issue of the constitutional writs is dismissed. 2. The applicant to pay the respondents' costs. 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 775 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: APPLICANT A226 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: LANDER J

DATE: 22 MARCH 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant brought proceedings in the High Court of Australia on 30 May 2003 seeking the issue of the constitutional writs in relation to a decision handed down by the Refugee Review Tribunal on 11 February 2000. The matter was remitted by the High Court to this Court for hearing. I should observe immediately that this is the second time the applicant has brought proceedings in relation to the decision of the Refugee Review Tribunal. On 3 July 2003 Mansfield J dismissed an application for judicial review of that decision. The applicant apparently did not appeal from that decision. 2 This latest application first came before me on 3 November 2003 when I made the following orders: '3. The applicant file and serve: a. a statement of contentions of relevant facts and law setting out: i. if the applicant has previously sought judicial review of the Refugee Review Tribunal decision the subject of this application, the reasons why the application should not be dismissed; and ii. if the applicant requires an extension of time within which to file this application, the reasons why an extension of time should be granted; and iii. particulars of the grounds relied upon for this application for the issue of prerogative writs and orders sought. b. any affidavits in support of any of the contentions in para 3(a) which the applicant intends to rely on at the hearing on or before 15 December 2003. … 5. In the event that order 3 is not complied with, the applicant will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.' 3 I adjourned the matter until 22 December 2003. The matter came before me again on 18 December 2003 when the applicant's solicitor sought an extension of time to comply with my orders until 8 January 2004. I allowed an extension of time. At the same time as I allowed that further extension of time, I made the further order: '2. In the event that order 3 of my order of 3 November 2003, as extended by paragraph 1 of these orders, is not complied with by 8 January 2004, the applicant will be called upon at the adjourned directions hearing to be held on 19 February 2004 at 9.00am to show cause why the matter should not stand dismissed.' 4 The matter came on for hearing before me again on 19 February 2004, at which time the applicant's then solicitor indicated that he intended to cease to act. In view of that, I made the following orders: '1. Further extend the time within which the applicant has to comply with my order of 3 November 2003 until 4 March 2004. 2. Direct Mr Patel, at the time he serves on the applicant a notice of intention to file and serve a notice of change of solicitors, pursuant to O 45 r 7 to advise the applicant that: 2.1 I have extended the time within which the applicant has to comply with paragraph 3 of my orders of 3 November 2003 until 4 March 2004; and 2.2 The further hearing of the applicant's application is adjourned until 22 March 2004 at 9.00am. 3. The parties and solicitors are at liberty to apply. 4. Adjourn the directions hearing until 22 March 2004 at 9.00am.' 5 The matter was adjourned until this morning. On 17 March Jenny Wu, a part-time secretary employed by the applicant's former solicitors, swore an affidavit in which she deposed to sending a letter to the applicant. The letter is in the following terms: 'We refer to (sic) you to our letter of the 8th January 2004 in which we sought evidence from you indicating that there was a real chance of persecution if you returned to India, as you have failed to provide such evidence we have on the 19th February 2004 withdrawn from the case. We herewith enclose a copy of the court order, which has extended the time for you to file statement of contentions of law and fact to the 04.03.04. The case is adjourned to the 22nd March 2004 at 9 am. Please note that your application will be dismissed if you fail to appear on the 22nd March 2004.' 6 The applicant has not attended this morning, notwithstanding the advice which he received from the solicitor and a further letter of advice which he received from my associate, dated 16 March 2004, warning him that he should be present this morning. 7 Ms Reed, who appears for the respondent, has applied to have the applicant's proceedings struck out. In my opinion, the applicant has shown no inclination to prosecute his proceedings. He is in default of my orders made on 3 November 2003, 18 December 2003 and 19 February 2004. He has apparently not instructed his solicitor as required. He has not attended this morning. In all those circumstances, he has evidenced an intention, in my opinion, not to prosecute these proceedings. In those circumstances, I will make orders: 1. That the applicant's application for the issue of the constitutional writs is dismissed. 2. The applicant to pay the respondents' costs.