MZXBG v Minister for Immigration
[2006] FMCA 213
•9 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXBG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 213 |
| MIGRATION – Refugee Review Tribunal – non-compliance with procedural orders – application dismissed. |
| Federal Magistrates Court Rules 2001, rr.13.03(1), 13.03A; Pt.2 Sch.1 |
| Applicant: | MZXBG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1018 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 9 February 2006 |
| Date of Last Submission: | 9 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 9 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Solicitor for the Respondents: | Ms M. O'Regan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 31 August 2005 be dismissed.
The Applicant do pay the Respondent’s costs, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1018 of 2005
| MZXBG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal made on 26 April 2005 and handed down on 20 May 2005. The application is remarkably brief in its terms. It simply says, "I think that RRT make a wrong decision about case."
On 28 September 2005 the matter came before Registrar Mussett who ordered that the applicant file and serve an amended application with proper particulars, if any, by 21 November 2005; and that the applicant file contentions of fact and law by 28 November 2005.
On 7 October 2005 the first respondent wrote to the applicant annexing a sealed copy of the orders by Registrar Mussett. On 10 November 2005 the first respondent served a copy of the court book on the applicant in accordance with the orders of Registrar Mussett.
The applicant has not filed any further documents at all. On
15 December 2005 the first respondent’s solicitors wrote to the applicant advising that the applicant had not complied with the orders and that unless the applicant filed and served an amended application and contentions of fact and law by 24 December 2005, they expected to obtain instructions from the first respondent to apply to have the matter dismissed. It therefore appears clear that the applicant has had notice of her obligations to provide some material on a number of occasions.
I also note that the applicant in this matter did not attend at the tribunal hearing, despite having earlier received a letter from the tribunal inviting her to attend, as well as making arrangements for such attendance to be by way of video conference through the Swan Hill TAFE in Victoria so as to make attendance somewhat easier. There does not appear to be anything on the file to indicate that the applicant contacted the tribunal to express any concern as to the location of the video-link or the hearing, nor any response to the hearing invitation.
On 25 January 2006 the first respondent filed a notice of motion seeking a summary dismissal of the matter which was served upon the applicant. The applicant failed to appear today, despite being called three times outside of the courtroom.
In the circumstances I am not satisfied that the applicant has shown any arguable case and I am satisfied that it is appropriate to dismiss the application on the basis of the applicant's failure to comply with the directions of the registrar and therefore a dismissal under rule 13.03 of the rules of 13.03A of the Federal Magistrates Court Rules 2001 as a result of the failure to appear at the proceedings.
If the application in this matter had been lodged after the commencement of the new rules, the scale fee for costs under Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 would have been $2,500. The application was lodged before the amendments and therefore the previous scale applies. The scale items in the other part of the court scale are matters to cover general federal law globally and are not specifically applicable to any particular matter. It has been the practice of the court to modify those amounts, depending on the particular case. I bear in mind that those scale items also cover litigation in other areas such trade practices and copyright where the preparation and even initial instructions phases are far more complex and time consuming, both in terms of time to obtain instructions and gathering evidence than migration matters.
This matter was relatively formal throughout, the applicant never having disclosed any realistic case or point, simply saying that they thought the RRT made a wrong decision. The matter involved one mention hearing before the Registrar and an application before me to strike the matter out.
In all of the circumstances, having regard to the various items in the scale, I am satisfied the sum of $2,500 is an appropriate amount for costs.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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