Applicant M90 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT (Revised from transcript) The Court: 1 This is an application for an extension of time to apply for leave to appeal from an order of a judge of the Federal Court made on 22 December 2003 and, if an extension of time is granted, an application for leave to appeal from such order. 2 The applicant, who is a Tamil businessman from Colombo, Sri Lanka, first arrived in Australia with his wife and daughter on 26 February 1996. On 29 May 1996, he applied for a protection visa. This application was refused by a delegate of the respondent and the applicant then sought review of this refusal by the Refugee Review Tribunal ('RRT'). He attended a hearing before the RRT on 13 August 1997 with his wife and advisor. On 19 August 1997 the RRT affirmed the delegate's decision. 3 The applicant appears to have then sought, unsuccessfully, a more favourable decision from the Minister under s 417 of the Migration Act 1958 (Cth) ('the Act') on 22 May 1998. 4 The applicant joined the Muin and Lie class action (commenced in reliance upon O 16 r 12 of the High Court Rules) on 8 November 1999. That action was heard by the High Court in August 2002 (see Muin v Refugee Review Tribunal (2002) 160 ALR 601). Following the success of that class action, Justice Gaudron ordered, on 25 November 2000, that leave be granted to each of the individuals identified in the Schedule to the Statement of Claim for the Muin and Lie class action to file an application seeking an order nisi for constitutional writs in relation to the respective decisions of the RRT concerning that individual. The applications were to be filed on or before 1 June 2003. Her Honour further ordered that any application so filed should be remitted instanter upon filing to this Court pursuant to s 44 of the Judiciary Act 1903 (Cth). The applicant, who is one of the individuals identified in the Schedule to the Statement of Claim, filed an application for an order nisi seeking writs of prohibition and certiorari in respect of the RRT's decision. He did so within the time limited by her Honour's order. 5 The application having been remitted to this Court, a directions hearing was held on 17 December 2003. The respondent requested to be heard on an application for summary dismissal of the matter, primarily on the basis that the applicant had failed to provide evidence to support his claims that the RRT had not afforded him procedural fairness. Following a short discussion between the primary judge and the applicant, his Honour told the applicant that he was not satisfied on the material before him that the grant of an order nisi would be appropriate. He asked the applicant to identify precisely the failure by the RRT to observe procedural fairness. In particular, he requested the applicant to identify what information in the US State Department Annual Report on Human Rights favourable to the applicant he claimed the RRT had failed to take into account. To give the applicant a further opportunity to do this, the primary judge adjourned the hearing of the respondent's application for summary dismissal until 22 December 2004. 6 When the matter came on for hearing again on 22 December 2004, the applicant did not appear. The respondent asked that the application be dismissed, referring to the directions hearing of the previous Wednesday and the fact that the matter was before his Honour that morning for the applicant to provide the further material and address the issues. His Honour then said: 'In those circumstances, due to the non-appearance of the applicant, I will order that: