Applicant S1436/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1227

FEDERAL COURT OF AUSTRALIA

Applicant S1436/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1227

MIGRATION – Refugee Review Tribunal – Federal Magistrates Court – order dismissing application pursuant to Federal Magistrates Court Rules 2001 (Cth) r 13.03(2)(b) made by Federal Magistrate – application for leave to appeal – remitted to Federal Magistrates Court by consent – humanitarian grounds APPLICANT S1436 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 724 of 2005

CONTI J 31 AUGUST 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 724 OF 2005

BETWEEN: APPLICANT S1436/2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 31 AUGUST 2005

WHERE MADE: SYDNEY

BY CONSENT THE COURT ORDERS THAT: 1. The orders of his Honour Federal Magistrate Mowbray dated 2 February 2005 in proceedings SYG1968/2004 be set aside. 2. The matter be remitted to the Federal Magistrates Court for redetermination. 3. Each party bear its own costs of these proceedings. 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 724 OF 2005

BETWEEN: APPLICANT S1436/2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 31 AUGUST 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from orders made in chambers by Federal Magistrate Mowbray on 2 February 2005 dismissing the applicant's application for review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 19 January 2000. The applicant was found by the Tribunal to be a national of Pakistan and a Christian. The applicant asserted that he had fears of suffering persecution upon his return to Pakistan by virtue of his Christian faith. 2 His Honour stated in his reasons for judgment, which reasons were published on 11 August 2005 as a result of the applicant applying for leave to appeal, that he dismissed the application pursuant to Federal Magistrates Court Rules 2001 (Cth) r 13.03(2)(b). Rule 13.03 is in the following terms: '(1) This rule applies if a party fails to take a step required by these Rules or to comply with an order of the Court. (2) Subject to any other order or transfer the Court may, on the application of another party in the proceeding or of its own motion, make an order: (a) that the step be taken within a stated time; or (b) to end the proceeding or dismiss a response. (3) The Court may make the order sought or another order that it considers appropriate.' 3 The order that the primary judge found that the applicant breached was made by the primary judge on 6 December 2004. Those orders were relevantly as follows: 'The Court orders that: 1. The applicant file and serve an amended application giving full particulars of each ground of review relied upon by 14 January 2005. 2. If the applicant does not comply with Order 1, the respondent may make an application to Federal Magistrate Mowbray in Chambers for an order that the proceedings be dismissed. …' 4 On 11 January 2005 the applicant sent by facsimile to the Federal Magistrate a document entitled 'Application giving particulars of grounds to be considered'. That document consists of a number of paragraphs apparently refuting factual findings made by the Tribunal in its reasons for decision of 19 January 2000 and also provides responses to adverse comments made by the Tribunal in respect of the material put forth in the applicant's claims. I observe that there is a suggestion that the applicant was attempting to provide in some respects a response to the Tribunal's reliance on inconsistencies in the applicant's account to the Tribunal during the hearing and material contained in his much earlier applications to the Department. The rest of the document filed by the applicant on 11 January 2005 I will discuss shortly, since it concerned the applicant's personal circumstances. 5 In his reasons for judgment, the Federal Magistrate referred to the document filed by the applicant on 11 January 2005 and stated that it contained 'no legal grounds of review'. 6 Seemingly on that basis alone, the Federal Magistrate acceded to the written request of the Minister dated 17 January 2005 that the application be dismissed for the applicant's failure to 'file and serve an amended application as required by order 1 of [the orders of 6 December 2005]'. No reference is made in the Minister's letter dated 17 January 2005 to the document filed by the applicant on 11 January 2005 and it may well be the case that no copy of that document was ever served on the Minister, or on the Minister's legal representatives. In any event his Honour was content to make the order sought by the Minister and I cannot discern from his Honour's reasons whether or not a copy of the applicant's 11 January 2005 document was ever provided to the Minister. 7 The applicant filed an application for leave to appeal from his Honour's decision on 10 May 2005 this year. In spite of the fact that the applicant is, and has been, in detention for that period, his application did not come on for hearing until the primary judge's reasons for judgment were made available. Thereafter the application was listed for hearing, which took place today. 8 At the beginning of today's hearing, solicitor for the Minister handed up consent orders that bore the signature of both parties. The effect of those consent orders is to set aside the Federal Magistrate's orders of 2 February 2005 dismissing the applicant's application for review and to remit the matter back to the Federal Magistrates Court for redetermination. I commend the Minister for taking that approach. I made orders in terms of the short minutes handed up to me by the Minister's representative at today's hearing. 9 As I mentioned during today's hearing, I thought that I should take the opportunity, I hope not to be thought of as presumptuous on my part, of recommending further consideration by the Minister of the applicant's personal situation with a view to evaluating whether humanitarian grounds exist for allowing the applicant to remain in Australia, upon the basis of whatever conditions the Minister may think fit to formulate and impose. 10 According to the applicant's document filed in the Federal Magistrate's Court on 11 January 2005: 'I am 55 years old and my physical condition is not good. I have severe diabetes and have to take insulin injection every day. I have no contacts with any of my family members, I don't know where they are. I know no one in Pakistan. I have no one to [indecipherable] to and have no place to go. I'll end up in street. The medication which I'm having now is very expensive and with my condition I will not survive a week. Sending me to Pakistan is like giving me death sentence. I'm begging to review my case in [sic] humanitarian ground and consider.' 11 The applicant was not able to tell me whether he had made a formal application under s 417 of the Migration Act 1958 (Cth) for personal consideration by the Minister of his circumstances. I am aware that one of the findings of the Tribunal went against the applicant's claims not to have been in contact with his family in Pakistan, however I observe that the applicant's statement, made some five years after the Tribunal's decision, may reflect changed circumstances. In any event it is the applicant's clearly expressed intention to seek relief on humanitarian grounds and I have set out the relevant passage from his document to apprise the Minister of that claim. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.