NAFK of 2002 v Minister for Immigration & Multicultural &

REASONS FOR JUDGMENT 1 The applicant applies for an extension of time in which to file a notice of appeal against orders made by Conti J on 22 May 2002. His Honour's orders were that the applicant's application for review of a decision of the Refugee Review Tribunal be dismissed and that the applicant pay the respondent Minister's costs of the proceeding before him. 2 The applicant first attempted to file an application for extension of time on 17 October 2002 - a very long time indeed after expiry of the 21 day period allowed for the filing of a notice of appeal by Order 52 rule 15 of the Federal Court Rules. The document which the applicant attempted to file was grossly deficient in form: for example, it did not identify a respondent in the heading. The Registry directed the applicant's attention to the problem, which was overcome by the filing of the present application, later on the same day, 17 October 2002. 3 On 25 October 2002 the parties were advised that the matter was listed before me today and that they should be ready to deal with the application today. The applicant has appeared. He states that he does not wish to suggest that there was any error in the reasons for judgment of Conti J or that his Honour should not have made the orders which he made. The applicant says that his purpose is to achieve a situation in which he is able to return to Indonesia "voluntarily" in the sense of "not as a deportee". This matter had been raised before the primary Judge, who made a recommendation to the Minister that the applicant's request be accommodated "as far as may be possible within the limits of Departmental restraints and procedures". His Honour added: "As best as I could form a judgment in the short time of the hearing, I thought that the Applicant was a decent and sincere person in relation to what he was seeking to convey to and request of the Court." 4 I have made it clear to the applicant that the Court lacks power to make any order of a kind which would achieve his objective. Counsel appearing for the Minister does not know what happened in relation to the primary Judge's recommendation. Without any criticism of counsel, I indicate that I regard this position as unsatisfactory. The Court is entitled to expect that those responsible will have ensured that counsel is in a position to inform the Court at least that the recommendation was passed on and that it has been taken into account. I can do no more than again to direct the attention of the Minister's legal advisers and the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") to the recommendation made by Conti J. 5 The stance taken by the applicant of not wishing to challenge his Honour's orders itself means that the application for an extension of time must be dismissed. I would have dismissed it in any event because no error is shown in His Honour's reasons, which were plainly correct. The draft notice of appeal seeks "mercy and compassion" and "sympathetic consideration" and does not suggest any error in the reasons for judgment of the primary Judge. The Court will order that the application be dismissed and that the applicant pay the respondent's costs. 6 Unfortunately, however, there is a further procedural aspect of this matter that is a cause for concern. As already noted, on 25 October 2002 the application was fixed for hearing today at 10.15 am. On its face, the application was hopeless and was one which should be heard without delay. On Wednesday 30 October the applicant, who has been at all relevant times unrepresented and in detention at the Immigration Detention Centre, Villawood, telephoned the Court Registry and said he was to be deported today at 12.00 noon and wanted to "stop the deportation". His request was referred to me. While an unqualified decision to deport the applicant 1ľ hours after the time fixed for the hearing seemed presumptuous, I decided not to intervene: in the very unlikely event that the applicant or a lawyer representing him was able to persuade me that an extension of time should be granted, there would be time for the making of any appropriate order (or the proffering of an appropriate undertaking not to deport). 7 The next development was that at 15.59 yesterday afternoon, the Court Registry received a facsimile transmission from Blake Dawson Waldron, the solicitors for the Minister, which, omitting formal parts, was as follows: "We are informed by the Department of Immigration and Multicultural and Indigenous Affairs('the Department') that the Department is intending to remove the Applicant in this matter from Australia, pursuant to section 198(6) of the Migration Act 1958 ('the Act'), on Friday, 1 November 2002 at 4.25 pm. The Applicant was notified of the Department's intention to remove him on Wednesday 30 October 2002. We understand that the Applicant has approached the Court in relation to his removal. We can confirm that the Applicant will be removed tomorrow and will be unable to attend the hearing. We draw these matters to the Court's attention as the Applicant is unrepresented and may wish to make an application in relation to his removal. If you would like to discuss please telephone Ashley Mullins on 9258 6186 or Susan Goodman on 9258 6497." 8 On my instructions, my Associate managed (after some difficulty and delay) to contact the applicant by telephone. The applicant said, perhaps not unexpectedly, that he wanted to attend the hearing of his case this morning and asked for an order that he be brought to the Court. I informed the solicitor for the Minister that I was in the process of making such an order. In fact I made an order that the Minister and the Officer-in-Charge of the Villawood Detention Centre cause the applicant to be brought to the Court at 10.15 am this morning for the hearing. The order was served on the Minister's solicitor and on the Officer-in-Charge at Villawood by facsimile transmission. I regard the order as having been made ex parte and without the benefit of submissions on behalf of the Minister as to the power or discretion involved. This was the direct result of the lateness and the peremptory nature of the advice conveyed to the Court. 9 It is unacceptable that a proceeding should be conducted in this manner on behalf of the Minister, who is supposed to be a "model litigant". I note that there was no request that, for example, the Court commence the hearing at an earlier hour or that it be conducted by teleconference or videolink, in order to overcome any logistical difficulties which might be involved if the deportation was to proceed. The Court was simply told that the applicant would not be brought to the Court for the hearing. 10 It is, of course, no answer to suggest that the applicant had no right to participate in the hearing because his application for an extension of time could be seen on the papers to be hopeless (as it could be). The same Parliament which enacted subss 474(1) and (2) of the Migration Act 1958 (Cth) also enacted subss 39B(1) and (1A) of the Judiciary Act 1903 (Cth). The Court is required to exercise the jurisdiction given it by the Parliament and to comply with the rules of natural justice in doing so. 11 A different approach to this case on behalf of the Minister would have avoided a waste of time and taxpayers' money, while still according to the applicant the fair hearing to which he was entitled. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.