Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Motion to vacate orders dismissing application for review of a decision of the Refugee Review Tribunal - non appearance of the applicant at trial - no reasonable excuse offered by applicant for his non appearance - motion refused.

NAHK v Minister for Immigration [2002] FMCA 215 (18 September 2002)

NAHK v Minister for Immigration [2002] FMCA 215 (18 September 2002)
Last Updated: 7 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHK v MINISTER FOR IMMIGRATION
[2002] FMCA 215



MIGRATION - Motion to vacate orders dismissing application for review of a decision of the Refugee Review Tribunal - non appearance of the applicant at trial - no reasonable excuse offered by applicant for his non appearance - motion refused.



Federal Court Rules

Federal Magistrates Court Rules 2001 (Cth)

NAAV v Minister for Immigration [2002] FCAFC 228

Applicant:
NAHK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ384 of 2002



Delivered on:


18 September 2002



Delivered at:


Sydney



Hearing Date:


18 September 2002



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:


Mr J D Smith



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Notice of motion dismissed.

(2) Applicant to pay respondent's costs and disbursements of and incidental to the notice of motion, fixed at $685.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ384 of 2002

NAHK


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an oral application made today by the applicant in proceedings NAHK of 2002 v Minister for Immigration for orders vacating orders that I made in his absence on 24 July 2002 dismissing his principal application, pursuant to Order 32 rule 2 of the Federal Court Rules, and requiring that he pay the Minister's legal costs.

2. The applicant has appealed from those orders to the Federal Court of Australia. I am told that on 4 September 2002 his Honour Beaumont J made the following orders: one, the appellant file and serve as soon as practicable a notice of motion to set aside the order made on 24 July 2002, supported by an affidavit explaining the circumstances; two, the hearing of the notice of motion be fixed for Wednesday, 18 September 2002 at 2.15pm before Federal Magistrate Driver; three, the matter be listed for a directions hearing on 9 October 2002 at 9.45am. The third order obviously relates to the appeal proceedings in the Federal Court.

3. The applicant has not filed the notice of motion required by order 1 made by Beaumont J, but I have permitted him to make an oral application before me today. He has filed in the Federal Court on 9 September 2002 an affidavit as required by order 1. I have permitted the applicant to file that affidavit in this Court in these proceedings today.

4. In that affidavit, the applicant gives the following explanation for his non attendance at court on 24 July. He says that he was not competent enough to make legal argument to support his case in this Court which influenced him to be absent from court. Secondly, he says that he tried to collect a lot of documents from India where the BJP Government is allegedly sponsoring systematic atrocities against Muslims. He says that when he failed to bring these documents, which I take to mean failed to obtain these documents, he became frustrated and did not attend court.

5. The first explanation is not a sufficient reason for the applicant to fail to attend court. The applicant is self-represented, which is the lot of a great proportion of litigants in courts all over Australia. The absence of a legal advocate to represent a person is not in itself a reason for the person not to attend court when required. I note, in addition, that the applicant was referred for legal advice pursuant to the legal advice scheme approved by the Minister in New South Wales and that he apparently received some legal advice.

6. I also accept Ms Rayment's submission, on behalf of the Minister, that the applicant appears to have been assisted in the preparation of documents, including his amended application for review. The applicant has presented to me today written submissions in relation to the proceedings in the Federal Court which indicate that he has received some form of legal help.

7. The second reason advanced by the applicant relating to his awaiting documents from India is, in addition, not a reason for him to have failed to attend court on 24 July 2002. It is apparent from the written submissions presented today by the applicant that he is under the mistaken impression that he could obtain merits review from this Court or the Federal Court. While the collection of additional documents from India might assist in merits review or in a submission to the Minister, I cannot see how they would assist in proceedings before this Court or the Federal Court seeking to overturn the decision of the RRT. It seems highly improbable that documents presented subsequent to a decision of the RRT could assist an argument that the RRT committed some reviewable error of law.

8. The applicant did not seek any adjournment of the hearing on 24 July 2002 and made no effort to contact the Court or the respondent to make alternative arrangements. Accordingly, I am not satisfied that the applicant has advanced any reason justifying a vacation of the orders made by me on 24 July 2002.

9. I might nevertheless have been prepared to vacate those orders in the absence of a persuasive reason for the applicant's non appearance if it appeared that there was a significant issue to be tried in the review proceedings that ought properly to be heard in this Court. However, the application filed in this Court by the applicant and his written submissions presented to me today disclose no such significant issue.

10. The applicant and those assisting him appear to be unaware of the decision of the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228. Nothing in the material presented by the applicant supports a conclusion that the applicant may be able to sustain one of the narrow grounds of review remaining available in the light of the majority judgments in that case. In the circumstances, I conclude that no injustice will result from refusing to vacate the orders made by me on 24 July 2002. I will therefore dismiss the oral application to vacate my earlier orders, made by the applicant today.

11. The Minister has sought an order for costs and the applicant has indicated that he does not oppose an order for costs. These proceedings today arose from orders made by the Federal Court on 4 September 2002 and it appears to me that his Honour, Beaumont J, made those orders in order to ensure that the proceedings have been exhausted in this Court before dealing with the appeal filed in the Federal Court. In the circumstances, the proceedings before me today were brought about not by the applicant but as a consequence of the orders made by Beaumont J on 4 September 2002. Nevertheless, at a more basic level, the proceedings before me today came about because the applicant failed to attend court on 24 July and rather than seeking to vacate that order subsequently he filed an appeal in the Federal Court. At that more basic level it can be seen that the proceedings before me today came about because of the conduct of the applicant.

12. The applicant has been unsuccessful in his oral application to vacate the orders made by me on 24 July 2002. I am satisfied that a costs order should be made. Ms Rayment has sought a costs order in the sum of $800, which I assume relates to her appearance here today and any necessary preparation in advance of the hearing today.

13. It seems to me that minimal preparation would have been required by the respondent for the proceedings. Such preparation as has taken place has been preparation by the applicant. The scale of costs in schedule 1 to the Federal Magistrates Court Rules 2001 (Cth) provide for a hearing fee of $685 for a half day hearing. I consider that an order for costs in that amount is ample compensation for the Minister, bearing in mind the previous costs order made by me in relation to the previously dismissed application.

14. I will therefore order that the applicant pay the respondent's costs of and incidental to the proceeding before me today, which I fix in the sum of $685.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 25 September 2002
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia