MZXCP v Minister for Immigration
[2006] FMCA 208
•9 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXCP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 208 |
| 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 Migration Act 1958, s.424A |
| Applicant: | MZXCP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1074 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
| Solicitor for the Respondent: | Ms M. O'Regan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 31 August 2005 be dismissed.
The Applicant to pay the Respondent’s costs, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1074 of 2005
| MZXCP |
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 seeking judicial review of a decision of the Refugee Review Tribunal made on 25 July 2005 and handed down on 12 August 2005. The applicant did not appear today when called three times outside of court. The terms of the application which was filed on 31 August 2005 are as follows:
Leave to file amended application with particulars and grounds.
On 28 September 2005 Registrar Mussett made orders for leave to file an amended application with proper particulars, if any, by 21 November 2005; and to file and serve contentions of fact and law by 28 November 2005. The matter was listed before me on 12 April 2006.
The applicant has not filed any amended application. On 28 September 2005 a solicitor, Mr Belbruno, commenced acting for her, but filed a notice of ceasing to act on 9 December 2005, a time after which the applicant ought to have filed contentions of fact and law but failed to do so.
The solicitors for the first respondent quite properly have written to the applicant on a number of occasions with respect to the matter, pointing out her failure to comply with the orders for the filing of contentions of fact and law. Initially the Minister's solicitors gave the applicant an extension of time during which they would not seek to have her application struck out. However, the applicant did not take advantage of that opportunity.
On 30 January 2006 the first respondent filed a notice of motion with an affidavit in support. The solicitor for the first respondent advises that the notice of motion has been served on the applicant and that there is an affidavit of service which unfortunately she forgot to bring up to the court through an administrative error in her office, but undertakes to file within the next two days. On the basis of that undertaking I accept that the notice of motion has been served and that there is no real need for a further court date and the expense associated with it in the circumstances.
I have also been alerted by the solicitor for the first respondent, quite properly, to the fact that on her reading of the decision, there is the possibility of an argument relating to s.424A of the Migration Act 1958 on the basis that credibility findings against the applicant relied upon differences in versions given between what the applicant said at the hearing and documents submitted by her adviser in a post-hearing submission. It appears to me that s.424A was not intended to create a scheme whereby the tribunal would then have to send back copies of those post-hearing submissions to the applicant to give her the appropriate notice and that they would fall within the exception to the relevant sections.
In the circumstances I am not satisfied that this demonstrates an arguable case. In any event I would dismiss the matter under rule 13.03 of the Federal Magistrates Court Rules 2001. I therefore dismiss the application under rules 13.03 and 13.03A on the basis of the failure to attend today. Even if I were wrong with respect to those two rules, I would have dismissed the application on a summary dismissal basis given that it does not disclose any ground upon which an arguable case or any case whatsoever could be ascertained.
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
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