MZWPQ v Minister for Immigration
[2005] FMCA 835
•4 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWPQ v MINISTER FOR IMMIGRATION | [2005] FMCA 835 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
| Migration Act 1958 (Cth) |
| Applicant: | MZWPQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1072 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 4 May 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr New |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed 17 August 2004 by the applicant be dismissed pursuant to Rule 13.03(1) and Rule 13.10(a) of the Federal Magistrates Court Rules 2001.
The applicant do pay the respondent’s costs fixed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1072 of 2004
| MZWPQ |
Applicant
And
| MINISTER FOR MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant in this matter seeks the judicial review of a decision of the Refugee Review Tribunal dated 30 June 2004. The applicant is a citizen of India who arrived in Australia on 23 March 2003 and on 16 April 2003 applied for a protection visa which was refused on 31 July 2003. The applicant had a solicitor at the time of his application. He filed an application on the following grounds:
1.The Tribunal fell into jurisdictional error in making the decision.
PARTICULARS
particulars will be provided.
Further grounds or particulars of the application may be provided.
The application itself appears to me to be wholly deficient in that it simply claims jurisdictional error and that it says that further particulars will be provided later. It is unfortunate that a solicitor would file such an application without having some apparent basis to it. No further particulars have ever been provided.
The matter has had a lengthy history which is set out in the affidavit of Fiona Day as follows:
3. On 17 August 2004, the applicant’ legal representative P.T. & Associates (“applicant’s solicitor”) filed with the Federal Magistrates Court on behalf of the applicant, an application for writs of prohibition and certiorari and for a declaration in relation to the decision of the Refugee Review Tribunal made on 30 June 2004.
4. Under cover of a letter dated 1 September 2004 to the applicant’s solicitor, Clayton Utz served a notice of appearance filed in the Federal Magistrates Court on 1 September 2004 and proposed minutes of consent orders.
5. Under cover of a letter dated 15 September 2004, the applicant’s solicitor returned the proposed minutes of consent orders signed.
6. On 27 September 2004, Registrar Efthim made procedural orders in relation to the application, which provided that the matter be re-listed for a further directions hearing on 15 December 2005.
7. However, on 10 November 2004 the Federal Magistrates Court relisted the matter for a further Directors hearing on 19 November 2004 before Federal Magistrate Riethmuller.
8. Under cover of a letter dated 18 November 2004, Clayton Utz served the court book on the applicant’s solicitor.
9. On 19 November 2004, Federal Magistrate Riethmuller made procedural timetable orders in relation to this matter. Order 2 provided that the applicant on or before 17 December 2004 file and serve an amended application containing proper particulars and Order 3 provided that the applicant on or before 14 January 2005 file and serve contentions of fact and law and any supplementary court book.
10. On 17 December 2004, the applicant’s solicitor sent to Clayton Utz consent orders extending the time for the applicant to file and serve an amended application containing proper particulars. The consent orders were taken out by Federal Magistrate Bennett on 13 January 2005.
11. On 24 January 2005, Clayton Utz rang the applicant’s solicitors seeking their amended application and contentions of fact and law which were due on 14 January 2005. The applicant’s solicitors informed Clayton Utz they would be provided by the end of the week.
12. On 3 February 2005, Clayton Utz again rang the applicant’s solicitors seeking their contentions of fact and law. The applicant’s solicitors informed us they had had a problem with counsel but would provide them as soon a possible.
13. Under cover of a letter dated 7 February 2005 to the applicant’s solicitor, Clayton Utz requested the applicant’s contentions of fact and law as a matter of urgency by 10 February 2005.
14. On 9 February 2005, the applicant’s solicitor sent to Clayton Utz by way of service a copy of a notice of intention to withdraw sent to the applicant.
15. On 17 February 2005, Clayton Utz wrote to the applicant advising them that their solicitor had ceased acting for them and informing the applicant that they are yet to file an amended application and contentions of fact and law which were due on 14 January 2005. Clayton Utz also informed the applicant that if we did not hear from them by 2 March 2005, Clayton Utz would apply for the matter to be dismissed and seek the respondents costs.
16. As at the date of this affidavit, Clayton Utz has not been contacted by the applicant and has not received an amended application containing proper particulars of the grounds relied on or the applicant’s contentions of fact and law.
The applicant has not appeared today. A perusal of the decision by the Refugee Review Tribunal indicates that they rejected the applicant effectively on the merits, and it is difficult to see from the lengthy decision (which runs to some 30 pages), that there is any prima facie case or arguable case for jurisdictional error or other error that may arguably support a claim for judicial review.
The applicant has failed to comply with a number of procedural orders and does not appear to be likely to comply with such orders in the future.
In the circumstances I dismiss the application under Rule 13 of the Federal Magistrates Court Rules 2001.
I see no reason why the applicant ought not to pay the costs of the minister, which I fix at $3,000.00. I find that $3,000.00 is a reasonable sum in this particular matter, having regard to the nature of the matter and the interlocutory steps that appear to have been taken, as set out above, bearing in mind the relevant scale under the Federal Magistrates Court Rules.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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