Adnan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 409 (26 March 2004)

MUHAMMAD ADNAN & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER, REFUGEE REVIEW TRIBUNAL & THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 686 of 2003

MANSFIELD J
26 MARCH 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.686 OF 2003

BETWEEN:	MUHAMMAD ADNAN & ORS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT MEMBER, REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	26 MARCH 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed.
2. Applicants to pay to the first respondent costs of the application.
3. No order for costs of the second and third respondents.

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.686 OF 2003

BETWEEN:	MUHAMMAD ADNAN & ORS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT MEMBER, REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGE:	MANSFIELD J
DATE:	26 MARCH 2004
PLACE:	ADELAIDE

1 This application was instituted in the High Court on 27 February 2003. It sought orders by way of mandamus, prohibition and certiorari in respect of a decision of the Migration Review Tribunal (the Tribunal) given on 20 September 1999, over three years before. It was not within the time which was permitted for an application for certiorari and mandamus under O 55 r 17 and r 30 of the High Court Rules 1952 (Cth) (High Court Rules).

2 I have decided in Applicants A64 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1142 that in respect of an application remitted to this Court for hearing by the High Court, as this application was on 11 June 2003, the time limits prescribed by the High Court Rules should nevertheless apply to the institution of the proceedings. Consequently, the application when instituted was considerably out of time in respect of those two claims for relief.

3 The Court gave directions on 2 December 2003 that any motion for an extension of time should be filed and served by 20 January 2004 together with supporting material. Those directions were not complied with. Similar directions were given on 3 March 2004. Those directions were also not complied with. Further directions were then given extending the time for any notice of motion for an extension of time to be filed and served by 22 March 2004, and to be returnable for hearing today. That direction was not complied with.

4 At all times the applicant has been represented by solicitors. He changed his solicitors recently. On 24 March 2004, new solicitors filed a notice stating that they are acting on his behalf. The matter came on for hearing today without there having been any application for an extension of time or supporting material filed and served. The new solicitors appeared and sought yet a further extension of time and a further adjournment of the matter. It is opposed by the respondent.

6 There is no material before the Court in support of it, apart from the change of solicitors. That of itself is not a reason for granting the adjournment sought. I have also had regard to what appears to me to be an unexplained and therefore continued and persistent ignoring of the Court's direction by the applicant. I do not know why he has taken that course, but it does not demonstrate on his part a desire to proceed with his application in a timely and proper manner.

7 I have also taken into account that his application to the High Court, remitted to this Court for further hearing, can only succeed if he can demonstrate jurisdictional error on the part of the Tribunal - see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476.

8 The Tribunal's decision was to affirm a decision of a delegate of the respondent refusing to grant to the applicant and to members of his family a Change in Circumstance (Residence) (Class AG) subclass 806 Family Visa. As the Tribunal's reasons indicate, it is a criterion for the eligibility for that visa under cl 806.212 of Sch 2 to the Migration Regulations 1994 (Cth) that the applicant satisfies Sch 3 criterion 3002 of the Migration Regulations. Criterion 3002 relevantly requires that the application for the visa was made within 12 months after the relevant day as defined in criterion 3001(2). The relevant day in practical terms in the present matter is the date upon which the applicant and the members of his family last held a valid substantive visa.

9 As the Tribunal pointed out, neither the applicant nor members of his family could have met that criterion.

10 The applicant entered Australia on 4 December 1994 on a visa valid to 4 March 1995. He did not thereafter hold a substantive visa until his application on 26 May 1998. Considerably more time than 12 months had passed between the time he last held a substantive valid visa and the time he made the application. In those circumstances he clearly could not meet criterion 3002. In the case of the applicant’s wife and children, they also ceased to hold a substantive visa more than 12 months prior to the lodgement of the application for the visa. They arrived in Australia on 22 October 1996 holding a visa valid to 22 January 1997. Again the application for the visa the subject of this application was made on 26 May 1998, more than 12 months after that date.

11 I do not see any basis upon which the Tribunal's decision could be said to involve jurisdictional error on its part. I have looked at the affidavit in support of the application. It is in a rote form. It gives one no confidence that any consideration of the grounds upon which jurisdictional error might be established have been addressed. For instance, par 4.1 asserts that a breach of the rules of natural justice occurred in connection with the making of the decision. There is no indication as to how that may have been so. In fact, the Tribunal records that it offered to the applicant the opportunity to attend a hearing before the Tribunal by letter of 2 August 1999 and that the applicant declined formally to do so by letter of 16 August 1999. One cannot help but have the suspicion that the grounds of review expressed in the application were not the result of any consideration at all of the reasons for decision of the Tribunal.

12 There is no other explanation for the applicant's delay or for the applicant's failure to comply with the directions of the Court.

13 In my view, in all of the circumstances, the application for an adjournment should be refused. I think it would be pointless to accommodate it. It also would be inappropriate to do so having regard to the way in which the applicant has previously conducted these proceedings.

14 In the absence of any motion for an extension of time in accordance with the directions of the Court, the application for certiorari and mandamus is out of time. The application for that relief must be dismissed. There is no point in the circumstances in the order for prohibition being pursued. I propose therefore to dismiss the application itself. I so order. I order that the applicants pay to the first respondent costs of the application. There will be no order for costs of the second and third respondents.

15 I do not intend to convey any criticism of the present solicitors for the applicants. It is apparent that they have been only very recently instructed. Why the applicants have chosen to change solicitors is not explained in any material adduced to the Court, As the applicants' present solicitors have had only a few days to consider his position, they themselves cannot be the subject of any adverse comment for not having acted earlier on his behalf.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicants:	J Bharati

Solicitor for the Applicant:	Bharati Solicitors

Counsel for the Respondents:	M Roder

Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	26 March 2004

Date of Judgment:	26 March 2004

Federal Court of Australia

Adnan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 409 (26 March 2004)