MZXBI v Minister for Immigration

[2006] FMCA 324

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXBI v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 324

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

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

Applicant: MZXBI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: MLG 1201 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 1021 of 2005

MZXBI

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 judicial review of the Refugee Review Tribunal decision.  The application was in the following terms:

   (1)An order setting aside the decision of the Refugee Review    Tribunal, dated 5/7/2005;

   (2)A declaration that the decision is invalid and contrary to law;

   (3)Alternatively an order in the nature of certiorari quashing or setting aside the above-named decision and such other orders that the court deems fit.

   (4)Such orders that the court deems fit.

2. The applicant sought the following interim orders:

   (i)An injunction, interim and interlocutory, restraining the respondent his or her delegates or officers, servants, agents     or nominees from removing the applicant from Australia, pending the determination of these proceedings.

3. The application was supported by an affidavit in the following terms:

   I seek an order for review of the Refugee Review Tribunal decision, dated 14 June 2005 and handed down 5 July 2005 in Sydney by tribunal member Ms Antoinette Younes on the following grounds:-

   (1)     The RRT decision was made without consideration and

   (2)     The RRT decision is affected by errors of law;

   (3)The RRT decision is based on a finding for which there was no evidence.

4. The applicant has not specified any particulars for these claims.  On 28 September 2005 Registrar Mussett made a number of procedural orders, including an order that the applicant file and serve contentions of fact and law by 23 November 2005.  The matter was listed before me for hearing on 1 March 2006. 

5. The applicant failed to comply with the order to file and serve contentions of fact and law.  On 29 November 2005 the respondent’s solicitors wrote to the applicant advising that if the applicant did not comply by 14 December 2006, they expected to receive instructions from the respondent to apply to have the matter dismissed. 

6. It appears nothing has been forthcoming from the applicant.  As a result, a notice of motion was filed on 25 January 2006 supported by an affidavit and served upon the applicant.  The applicant was called today at court and did not appear. 

7. In the circumstances I dismiss the application pursuant to rule 13.03(1) of the Federal Magistrates Court Rules 2001 on the basis of the applicant's failure to comply with order 5 of the orders of Registrar Mussett made on 28 September 2005.

8. I order the applicant to pay the first respondent's costs of and incidental to the matter and the notice of motion in accordance with Part 2 of Schedule 1 of the scale.  Having regard to various items on the scale,   fix the costs in the sum of $2,500.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: 

Date: