MZXBH v Minister for Immigration

[2006] FMCA 323

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXBH v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 323

MIGRATION – Refugee Review Tribunal – non-compliance with procedural orders – application dismissed.

Federal Magistrates Court Rules 2001, r.13.03(1); Pt.2 Sch.1

Applicant: MZXBH

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: MLG 1019 of 2005

Judgment of: Riethmuller FM

Hearing date: 7 February 2006

Date of Last Submission: 7 February 2006

Delivered at: Melbourne

Delivered on: 7 February 2006

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitor for the Respondent: Ms Jayasinghe

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed on 18 August 2005 be dismissed.

2. The Applicant do pay the respondent’s costs, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1019 of 2005

MZXBH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application by the applicant seeking review of a decision of the Refugee Review Tribunal.  The applicant did not set out in the application any grounds but simply sought the following:

   (1) I think that RRT made a wrong decision about a case;

   (2) I am seeking for a review of RRT decision

2. The matter came before Registrar Mussett for directions on 28 September 2005.  The Registrar made various directions including directions that the applicant file and serve the following documents by 28 November 2005:

   a)an amended application, if any, with proper particulars;

   b)a supplementary court book, if any; and

   c)contentions of fact and law. 

   The registrar then listed the matter for hearing before me on 10 April. 

3. No further documents have been filed by the applicant, leaving the respondent unaware of what the basis is for the application.

4. On 2 December 2005 the respondent quite properly wrote to the applicant complaining about the failure to comply with the orders and advising that if they were not complied with by 19 December 2005, they would expect to receive instructions to make application for the applicant's application to be dismissed. 

5. On 25 January 2006 a notice of motion was filed seeking dismissal of the matter as a result of the failure to comply with the orders of the Registrar, together with costs.  This was supported by an affidavit of the solicitor for the respondent, setting out history of the matter.  That has been served upon the applicant and the applicant has been called and not appeared this morning. 

6. In the circumstances I make orders in terms of order 1 sought in the notice of motion, namely that the application for review, dated
   18 August 2005, be dismissed pursuant to rule 13.03(1) of the Federal Magistrates Court Rules 2001 as a result of the applicant's failure to comply with order 5 of the orders of Registrar Mussett of
   28 September 2005.

7. I also make an order in terms of order 3 sought in the notice of motion, namely that the applicant pay the first respondent's costs of and incidental to the application and the notice of motion. Having referred to the scale fee applicable for this stage of the matter as set out under Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001,
   I order that the applicant pay the first respondent’s costs fixed in the sum of $2,500.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: 

Date: