MZXCE v Minister for Immigration

[2005] FMCA 1982

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXCE v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1982

MIGRATION – Failure by applicant to comply with order of Court – dismissed pursuant to Rule 13.03(1) of the Federal Magistrates Court Rules2001.

Federal Magistrates Court Rules 2001
Judiciary Act 1993 (Cth)
Migration Act1958 (Cth)

Applicant: MZXCE

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 875 of 2005

Judgment of: Hartnett FM

Hearing date: 2 December 2005

Delivered at: Melbourne

Delivered on: 2 December 2005

REPRESENTATION

Counsel for the Applicant: Mr Nwanko

Solicitors for the Applicant: Goz Chambers Lawyers

Counsel for the Respondent: Ms U. Jayasinghe

Solicitors for the Respondent: Clayton Utz

ORDER

1. The application for review filed 21 July 2005 is dismissed pursuant to Rule 13.03(1) of the Federal Magistrates Court Rules 2001.

2. The applicant pay the costs of the respondent in the proceedings fixed in the sum of $2500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 875 of 2005

MZXCE

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Proceedings commenced upon the applicant filing an application for review on 21 July 2005.  That application was made under s.39B of the Judiciary Act 1993 (Cth) and Part A of the Migration Act 1958 (Cth). That application was supported by affidavit sworn by the applicant on 21 July 2005.

2. Orders were made by consent by Registrar Agnew on 2 August 2005.  Those orders included the following: 

   (3) the applicant file and serve an amended application with proper particulars, if any, by 3 October 2005;

   (4) the applicant file and serve a supplementary court book, if any, by 10 October 2005;

   (5) the applicant file and serve contentions of fact and law by 10 October 2005.

3. The applicant failed to comply with any and all of those orders.  By notice of motion filed 22 November 2005 the first respondent sought that the application for review of the decision of the Refugee Review Tribunal dated 31 May 2005 be dismissed and that the applicant pay the first respondent's costs.  That notice of motion application was supported by affidavit of Amy Chakik sworn 1 December 2005 and a further affidavit of Alex Farias sworn 1 December 2005 as to service upon the applicant.  An affidavit sworn by Ms Udara Jayasinghe solicitor sworn 23 November 2005 was also relied upon.

4. Ms Jayasinghe’s affidavit details compliance with orders on the respondent's part and a failure to comply with the procedural orders by the applicant.  That affidavit also included the following:

   (9) On 20 October 2005, the applicant's representatives informed me that the applicant intended to discontinue his application and wished to depart Australia.  On that same date, a facsimile was sent to the applicant's representative, confirming the applicant's intention to discontinue his application and enclosing proposed minutes of consent orders to be signed by the applicant.

5. Thereafter, the solicitors acting on behalf of the first respondent did not receive a signed copy of the proposed consent orders.  The solicitor for the first respondent then deposed:

   (12) On 8 November 2005, I contacted the applicant's solicitors once more in relation to the proposed minutes of consent orders sent on 20 October 2005.  I was informed that the applicant had been unwell.  The applicant's solicitors confirmed that the applicant wanted to discontinue his application and leave Australia by January 2006.

6. The applicant was represented on the hearing of the notice of motion this day.  The solicitor acting on behalf of the applicant confirmed in submissions from the bar table that his client intended to depart Australia.  His main purpose in being at the hearing this day was on the question of costs.

7. It is clear that the applicant has failed to comply with the earlier orders of the court and has failed to put before the court an application with proper particulars supported by contentions of fact and law. In those circumstances, the court can and shall dismiss the application pursuant to Rule 13.03(1) of the Federal Magistrates Court Rules 2001.

8. The solicitors acting on behalf of the first respondent sought costs in the sum of $3850.  In my view and having regard to this Court’s scale of costs as set out in Schedule 1 of its Rules; the time that has been occupied in this piece of litigation; and the work required to be performed from the initiation to completion of the matter a sum of $2500 is more appropriate.  The Court shall so order.

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

Associate:Tracey Jones

Date:2 December 2005