NADN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

1 On Tuesday 10 June 2003 (on the day following the Queen's Birthday public holiday in New South Wales) I made orders and delivered reasons in this matter. (See [2003] FCA 572.) On the previous Wednesday (4 June 2003) my associate sent a letter by post to the parties informing them of my intention to deliver judgment on Tuesday 10 June. 2 On 10 June 2003 the applicant did not appear. 3 In the afternoon of 10 June the husband of applicant NADN (to whom I referred in my reasons of 10 June 2003 as the male applicant) rang my associate and said that he had only just seen the letter she had sent the previous week and that he had submissions to make. In these circumstances, I had my associate ascertain from the solicitors for the respondent whether the orders made that morning (dismissing the application with costs) had been entered. They had not been. I then made an order that neither party enter the orders without leave and I listed the matter at 9.30 am on Friday 13 June 2003 in order to give the applicant and her husband a further opportunity to say whatever they wished. I excused the respondent from attendance, intending that if anything were submitted which required a response I would notify the respondent. In fact the respondent's solicitor attended on 13 June 2003. 4 It is unnecessary for me to go into the procedural history of the matter at length. I should, however, give a brief outline. There were two hearing days: 8 and 29 April 2003. Mr Smith raised a matter in the applicant's interest, see generally [32] to [38] of my earlier reasons. On the second day of the hearing I made it clear to the applicant and her husband that after I had listened to the tape (to which course they agreed) I would only relist the matter for hearing if I needed further assistance from the parties, otherwise I would list the matter for judgment. I made clear to the applicant and her husband why I was listening to the tapes. I said the following: Mr Smith and I have had the discussion in court about certain technical legal matters that I don't think we need to go over. Is there anything that you wish to put to me now? I am going to listen to the tape of part of the proceedings before the tribunal. You may recall at a point after there was a break, I gather, the tribunal brought you and your wife into the tribunal hearing room and said some things about the difficulty that the tribunal was having in accepting your evidence. Now, I am going to listen to that part of the tape. It concerns the question of the consistency between your evidence and your wife's evidence and what the tribunal said to you about that matter. Because the point that Mr Smith has raised in his submissions, which is a point in your favour, that he conformably with his duties bringing forward to the court, is the possible failure of the tribunal to follow section 424A of the Migration Act. Now is there anything you want to add about that before I hear anything further from Mr Smith and adjourn and listen to the tape? 5 The applicant and her husband indicated that they wanted to put further submissions. I gave them until the following Monday (5 May). They availed themselves of that leave and filed the submissions to which I referred at [37] of my reasons of 10 June 2003. 6 When I had the matter called on 13 June, the male applicant appeared and said that he only wanted to say something about costs. He said that he and his wife had no funds to pay them. The solicitor for the respondent accepted, for the purpose of debate, that that was the case. 7 This is not a reason why I should not order costs in circumstances where it is otherwise appropriate to do so. The orders made on 10 June 2003 will not be varied in that respect. 8 On 10 June I had overlooked one matter, the papers concerning which had been filed in the correspondence section of the file. On 29 April 2003 the male applicant applied to be joined as a party. This was not opposed by the respondent. I had overlooked making this order. It should now be made nunc pro tunc. The order to effect this will be made in terms which do not disclose the identity of the male applicant by reason of the terms of s 91X of the Migration Act 1958 (Cth) the constitutional validity of which I am bound to assume in the absence of argument on the question. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.