SPLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 7 (21 January 2004)

Last Updated: 21 January 2004

FEDERAL COURT OF AUSTRALIA

SPLB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 7

SPLB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 540 of 2003





















SELWAY J
21 JANUARY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 540 OF 2003

BETWEEN:	SPLB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	21 JANUARY 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent’s costs save for the costs incurred in respect of the Notice of Objection to Competency filed in the Court on 17 December 2003.

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 540 OF 2003

BETWEEN:	SPLB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	21 JANUARY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The respondent (‘the Minister’) has applied by Notice of Motion asking that the proceedings be summarily dismissed on the basis that the applicant has failed to comply with the orders of Mansfield J dated 21 October 2003. At the hearing of that application the respondent also applied to have the proceedings summarily dismissed on the basis that the application does not disclose an arguable case and on the basis that the application is an abuse of the processes of the Court. For the reasons given below the applicant’s application for primary relief is dismissed.

2 The background can be summarised as follows:

(a) The applicant is an Indian citizen. He applied for a protection visa on the grounds that he feared persecution from the Indian government because of his involvement in anti-nuclear protests in the early 1990s.
(b) A delegate of the Minister rejected his application for a protection visa. The applicant sought a review of that decision by the Refugee Review Tribunal (‘the Tribunal’). As is set out in the Tribunal’s reasons, the Tribunal made a number of attempts to obtain information from the applicant and to afford him an opportunity to give evidence. This included rescheduling hearing dates because of last minute contact from the applicant advising that he was unable to attend on the scheduled occasion. Eventually the Tribunal proceeded in the absence of the applicant. The Tribunal was not satisfied that the events described by the applicant in his written material did in fact occur. The Tribunal concluded:
‘On the basis of the country information and the limited and vague evidence provided by the applicant, the Tribunal is unable to be satisfied that the applicant faces a real chance of persecution from Indian authorities due to his opposition to its nuclear policies.’

The Tribunal confirmed the decision of the delegate.

(c) Although not previously revealed in these proceedings, the affidavit of Ms White tendered on 13 January 2004, reveals that the applicant instituted proceedings in the High Court seeking judicial review of the Tribunal’s decision (S 254 of 2002). The applicant accepted that he had done so. As the applicant also accepted, those proceedings were remitted to the Sydney Registry of the Federal Court on 6 February 2003 (N 262 of 2003). Ms White deposes that Emmett J summarily dismissed those proceedings on 6 June 2003, for failure of the applicant to attend a directions hearing (see [2003] FCA 1197). The applicant says that he does not know whether the application was dismissed - indeed, he suggested that the proceedings before me are a continuation of those proceedings. Nevertheless, I am satisfied that Emmett J did dismiss the proceedings and that they involve not only the same decision of the Tribunal, but the same issue of whether that decision was affected by jurisdictional error.
(d) Fresh proceedings were instituted in this Court on 27 May 2003. The application sought certiorari, mandamus, prohibition and injunctions. Various jurisdictional errors were alleged. As seems to be common in proceedings of this nature there is no hint in either the application or the accompanying affidavit as to the relationship between those alleged errors and anything that the Tribunal actually did. On 21 October 2003, Mansfield J ordered that various steps be taken by the applicant by 18 November 2003 to remedy these deficiencies and get the matter ready for hearing, including the filing and serving of an amended application specifying precisely the error or errors complained of, an outline of submissions and various other matters. On 19 December 2003, the matter was adjourned to 6 January 2004, on the basis that the applicant’s solicitor was yet to receive instructions from the applicant. On 5 January 2004 (the day before the matter was next due to come before the Court) the applicant informed the Court by facsimile that he was not aware of the orders made by Mansfield J on 21 October 2003 (it is noted that his solicitors informed the Court that they had forwarded a copy of the orders to him, but whether or not he received them is not presently a matter that I need to consider). The applicant also informed the Court that he was no longer represented and that he wished to have the matter transferred to the Victorian Registry of the Federal Magistrates Court. On 6 January 2004, when the matter came before the Court, his (former) solicitors attended, although they still had no instructions. Apparently they had not been informed that they were no longer acting. The applicant appeared by telephone and requested an interpreter. As none was available the matter was adjourned again to 13 January 2004, for the applicant to attend in Sydney so that the proceedings could be heard by video-link. In the meantime the Court sent to the applicant a copy of the orders made by Mansfield J. The Court also notified the applicant that the orders made by Mansfield J had not been complied with and, unless they were, the proceedings might be dismissed on the next occasion. On 8 January 2004, the respondent filed its Notice of Motion seeking to have the proceedings summarily dismissed pursuant to O 20 r 2 of the Federal Court Rules. On 12 January 2004, the applicant filed an amended application and informed the Court that he could not attend in Sydney. The terms of that amended application are discussed below. On 13 January 2004, the directions hearing finally proceeded. The applicant appeared by telephone. He was assisted by an interpreter.

3 Plainly enough the applicant has failed to comply with the orders of Mansfield J made on 21 October 2003. The amended application was not filed until 12 January 2004. Some of the orders (such as the one requiring the filing of submissions) have still not been complied with. These orders were necessary because the application and supporting affidavit did not comply with the Federal Court Rules. The orders were clearly intended to ensure that the Court and the respondent knew the nature and necessary particulars of the applicant’s complaint. It is no answer to that failure for the applicant to say that he did not receive the correspondence which his lawyers sent him, or that he did not accept their advice that his case was not a strong one. It is the applicant’s responsibility and that of his legal advisers not only to comply with the orders of the Court, but also to ensure that they are informed as to what those orders are. It is not the responsibility of the Court or of the opposing party to ensure that the applicant is informed about the progress of his proceedings.

4 Nevertheless, I would not be disposed to dismiss the proceedings if there was any arguable prospect of success in them. The grounds set out in the amended application are as follows:

(1) The Tribunal denied procedural fairness and natural justice as in Muin.
(2) The Tribunal’s failure to consider relevant matters and consideration of irrelevant matters constitutes an error of law.
(3) The Tribunal did not consider relevant information: Yusuf.
(4) The Tribunal’s decision was affected by an ‘error of law’.
(5) The Tribunal breached the requirements of s 424A of the Migration Act 1958 (Cth).

These purported grounds are not much of an improvement on those in the original application. There is nothing that connects any of these grounds with what the Tribunal in fact did or decided. The applicant explained that his complaint was that he could not return to India because of his fear as a result of his actions to oppose the testing of bombs. He said that he had not been treated fairly by the Tribunal, but was unable to specify in what way he had been unfairly treated other than that the Tribunal had not permitted him to stay in Australia. He could not identify any particular manner in which he had been misled by the Tribunal, other than his claim that he did not receive a letter (presumably from the Tribunal).

5 The applicant has failed to identify any jurisdictional error in the reasons, processes or decision of the Tribunal. It is clear that the applicant cannot succeed on the amended application. In these circumstances it is appropriate that the application be summarily dismissed both for failure to comply with the orders made by Mansfield J and on the basis that the amended application cannot possibly succeed.

6 The application could also be dismissed on the basis that it is an abuse of process for the proceedings to be continued after the same proceedings were dismissed by Emmett J. However, if that were the only ground for dismissal it may have been necessary to give the applicant a further opportunity to explain how the proceedings were instituted in this Registry whilst separate proceedings were on-going before Emmett J, particularly as the affidavit of Ms White revealing the relevant matters was only made available at the hearing on 13 January 2004. If justice required it, it might be necessary to adjourn these proceedings to enable steps to be taken to appeal or otherwise set aside the order made by Emmett J. Although the continuation of these proceedings in light of the order of dismissal made by Emmett J is clearly an abuse of the processes of the Court, it may be that some steps other than dismissal might be appropriate in order to resolve that abuse. Given that the application should be dismissed for the reasons already given it is unnecessary to explore that question any further.

7 For these reasons the application will be dismissed. The applicant should pay the respondent’s costs, save for the costs incurred in respect of the Notice of Objection to Competency filed in the Court on 17 December 2003. That Notice raised no new issues and was unnecessary. I can see no reason why the applicant should pay the costs related to it.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated: 21 January 2004

Counsel for the Applicant:	The Applicant appeared by telephone
Counsel for the Respondent:	C White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 January 2004
Date of Judgment:	21 January 2004