NAWK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 529

FEDERAL COURT OF AUSTRALIA

NAWK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 529

MIGRATION – Application for leave to appeal – interlocutory application – application dismissed. NAWK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 33 OF 2005 HILL J 18 APRIL 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 33 OF 2005

BETWEEN: NAWK

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL

DATE OF ORDER: 18 APRIL 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's 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

NEW SOUTH WALES DISTRICT REGISTRY NSD 33 OF 2005

BETWEEN: NAWK

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL

DATE: 18 APRIL 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT HILL J 1 Before the Court is an application for leave to appeal against a decision of the Federal Magistrates Court, dismissing an application for judicial review to that Court made by the applicant, on the ground that the applicant had failed to appear. 2 It seems that on or around 5 December 2003, orders were made by consent for the filing of an amended application, relevant bundle of documents and written submissions preparatory to a hearing of an application under s 39B of the Judiciary Act 1903 (Cth)by the applicant on 8 December 2004. The consent orders were indeed signed personally by the applicant. 3 Although there is no evidence before me, I will infer, in accordance with the ordinary practice of directions hearings in the Federal Magistrates Court, as in this Court, that the applicant would have been assisted by a translator and thus would have understood the orders that were made on that day. No suggestion to the contrary was made. It might be noted that those orders provided, inter alia, that in the event that there was a failure to file amended applications and other documents by the time stipulated in the short minutes, the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") could have the matter relisted for further directions. 4 It seems that the applicant failed to comply with the consent orders. In consequence, on 2 June 2004 the Federal Magistrates Court wrote to the applicant pointing out that there was a failure to comply with the orders and advising him that the matter had been put into a "non compliance list" so that the respondent could apply to have the matter summarily dismissed pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules. The applicant was advised that the application for summary dismissal would be heard by Barnes FM on 23 June 2004. 5 On 23 June 2004, the applicant did not attend before Barnes FM and in the result, her Honour dismissed the matter pursuant to rule 13.03A(c) of the Federal Magistrates Court Rules. A letter dated 24 June 2004 was sent by that Court to the applicant advising him of the making of the order and advising him also that under rule 16.05(2) of the Federal Magistrates Court Rules he could apply to the Court to have the order set aside because it was made in his absence, on motion and affidavit evidence in support being filed. 6 No such application was made by the applicant who instead sought leave to appeal to this Court. I should say that the applicant filed affidavit evidence, which was objected to by the respondent Minister on the basis of relevance. I allowed the affidavit to be read, preserving the objection to relevance which the respondent Minister had made. The substance of the affidavit was that the applicant did not understand much, if any English or much, if anything about Australian legal proceedings but that he had been advised at relevant times by a migration agent who had, in the meantime, disappeared. 7 The affidavit also suggested that in April 2004, the applicant had moved from Hurstville, where he had previously lived, to Kogarah. From that, the implication is sought to be drawn that correspondence from the Court to the applicant did not reach him. He says in the affidavit that he was unaware of any direction requiring him to file an amended application, yet, in fact, he signed a consent order containing the direction. 8 The applicant does not directly say that he did not receive the correspondence from the Federal Magistrates Court but he does say that he was unaware that the application was listed before the federal magistrate on 23 June 2004. It might be noted that there is nothing in the Federal Magistrates Court file that suggests that the letters were returned to that Court. I accept that there was no cross examination on the affidavit and to the extent that the affidavit is not at least inconsistent with the facts, I would accept it, even if I might have some doubts as to its correctness. For the respondent Minister, it is submitted that the appropriate procedure was and still is, for the applicant to seek to have the magistrate's order set aside on evidence explaining the reasons why the applicant did not attend the Federal Magistrates Court hearing. Certainly, in my view that is the appropriate procedure and an application by way of appeal from the magistrate's decision is misconceived. On that basis, almost the entirety of the affidavit would be irrelevant. Counsel for the applicant has indicated that his client proposes to make the application to the Federal Magistrates Court and requested in the circumstances that this Court stand over the current application until after the Federal Magistrates Court has heard the case. 9 In my view, that is not an appropriate course to adopt. In the event that the applicant is successful before the Federal Magistrates Court, there will be no reason for the present application to continue and indeed it would then have to be discontinued. In the event that the applicant failed to persuade the Federal Magistrates Court to set aside its order, the applicant can then proceed in this Court, if so advised, by way of appeal. The present application is interlocutory and nothing will prevent the applicant from again commencing proceedings in this Court if so advised, subject to any issue of abuse of process. 10 In those circumstances, I propose to dismiss the application before me and order the applicant to pay the Minister's costs of it. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.