S126 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 723

FEDERAL COURT OF AUSTRALIA

S126 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 723

MIGRATION – no point of principle S126 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1762 OF 2004

MOORE J SYDNEY 3 JUNE 2005

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1762 OF 2004

BETWEEN: S126 OF 2004

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 3 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application to extend time in which to seek leave to appeal be refused. 2. The applicant pay the respondent's costs. 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 1762 OF 2004

BETWEEN: S126 OF 2004

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 3 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an extension of time filed on 29 November 2004 seeking leave to appeal against a judgment of Wilcox J. On 27 October 2004 his Honour refused an application for an order nisi in relation to a decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') not to grant the applicant a protection visa. 2 The applicant claims to be a Pakistani citizen. He arrived in Australia on 13 July 1999. He lodged an application for a protection visa on 30 May 2000. A delegate of the Minister refused that application on 26 June 2000. The applicant applied to the Tribunal for review of that decision on 25 July 2000. The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa on 10 March 2003. On 5 April 2004 the applicant filed a draft order nisi in the High Court which was then remitted to this Court on 10 May 2004 by consent. 3 The following emerges from the reasons for judgment of Wilcox J of 27 October 2004. In this Court, Lindgren J made directions at a hearing on 8 September 2004, that the applicant file an amended application (by 6 October 2004) giving complete particulars of each ground and fixing the matter for hearing (on 27 October 2004). An amended application was never filed. The matter was listed before Wilcox J on 27 October 2004 for hearing because Lindgren J was not available to hear the matter on that date. When the matter was called, there was no appearance for the applicant. However, as Wilcox J was about to dismiss the application, Mr Kumar, a solicitor, appeared for the applicant. He explained he had been approached at 7.00 pm the night before to appear that day but had only received a copy of the Tribunal's reasons for decision that morning. He sought an adjournment. Wilcox J refused to grant the adjournment, noting in his reasons that the applicant had had four weeks to prepare an amended application but had not done so. Wilcox J also noted that the applicant had not sought legal assistance, as it seemed to his Honour, until the "very last moment". As will become apparent later in these reasons, this may not have been the case. 4 In his reasons for judgment, Wilcox J referred to the Court's commitment to do everything to meet an allocated date, to the point of changing the judge hearing the matter. There was nothing before his Honour to indicate any relevant difficulty preventing the applicant being prepared by the date fixed for hearing. Notwithstanding, his Honour offered the applicant's solicitor an opportunity to put an argument which might indicate there was a real legal issue sought to be raised in the proceedings. Mr Kumar said it seemed there was no jurisdictional error and was unable to comment on what argument there might be. His Honour explained at [9]: I do not think it is right for the Court to burden itself with allocating two different hearing dates to a person who does not take the trouble to look after his own interests, and in any event, would seem not to have any case. His Honour ordered that O 51A r 5(1) not apply to the application and refused the application for the order nisi.