NATU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1238

FEDERAL COURT OF AUSTRALIA

NATU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1238 NATU & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N867 OF 2003 EMMETT J 2 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N867 OF 2003

BETWEEN: NATU, NATV, NATW

APPLICANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 2 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of motion filed on 24 November 2003 be dismissed. 2. The adult applicants pay the respondent's costs of the motion. 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 N867 OF 2003

BETWEEN: NATU, NATV, NATW

APPLICANTS AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT JUDGE: EMMETT J

DATE: 2 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicants are husband and wife and their child, who was born in Australia. The husband claims to be a citizen of Pakistan while the wife claims to be a citizen of Fiji. They arrived in Australia on 24 June 2002. On 25 June 2002 they lodged an application for a Protection (Class XA) Visa for each of them under the Migration Act 1958 (Cth) ('the Act'). On 26 November 2002 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister') refused to grant protection visas. 2 On 2 December 2002 the applicants applied for review of that decision by the Refugee Review Tribunal ('the Tribunal'). On 6 June 2003 the Tribunal affirmed the decision not to grant protection visas. The reasons for that decision were published on 2 July 2003. On 22 July 2003 an application was made to this Court for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal's decision. The matter came before me on 15 August 2003 when I gave directions for the preparation of the matter. I directed that the matter be listed for further directions on 10 October 2003. 3 One of the directions that I made on 15 August was that the applicants file and serve any amended application and any additional evidence upon which they intended to rely on or before 3 October 2003. Nothing was filed on behalf of the applicants, although the Minister filed a bundle of relevant documents on 12 September 2003. 4 On 17 October 2003, I directed the applicants to file and serve an amended application by 7 November 2003, and ordered that in the event of non-compliance with that direction, the application stand dismissed. The proceeding was listed for directions on 14 November 2003. On that day I ordered that the application be dismissed. However, I stayed that order up to and including 28 November 2003 and granted the applicants leave to file a motion returnable before me on that day seeking orders setting aside the judgment. 5 On 28 November I directed the applicants to file and serve no later than 8 December 2003 any proposed amended application and any affidavits in support. The notice of motion that had been filed on 24 November 2003 by the applicants was stood over for further hearing on 12 December 2003. An amended application was filed on 8 December 2003 together with an affidavit purporting to support that application. 6 On 12 December I directed the applicants to file and serve no later than 16 January 2004 any further affidavits on which they intended to rely in support of the application for the order for dismissal to be set aside. I listed the motion of 24 November 2003 for hearing before me today. I also directed that if the dismissal is set aside the matter is to proceed to hearing today. I stayed Orders 1 and 2 made on 14 November up to and including today. The wife was present in Court when I listed the matter for hearing today and when I directed that any further affidavits be filed by 16 January 2004. No further affidavits have been filed on behalf of the applicants, and when the matter was called on for hearing today the applicants sought a further adjournment. The only explanation offered for not being ready is that the applicants were waiting for a letter. It is not entirely clear what letter they were referring to. 7 The amended application on its face seeks merits review of the decision of the Tribunal, although it purports to assert grounds as follows: 'The rules of the natural justice occurred in connection with the making of decision.