MZXEU v Minister for Immigration
[2006] FMCA 580
•12 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXEU v MINISTER FOR IMMIGRATION | [2006] FMCA 580 |
| MIGRATION – Practice and procedure – dismissal for failure to comply with procedural order – no grounds for application. |
| Federal Magistrates Court Rules 2001 |
| Applicant: | MZXEU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR |
| File Number: | MLG 1507 of 2005 |
| Judgment of: | Phipps FM |
| Hearing date: | 12 April 2006 |
| Date of Last Submission: | 12 April 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 12 April 2006 |
REPRESENTATION
| No appearance by the Applicant |
| Counsel for the Respondent: | Ms M.D. O'Regan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed 28 November 2005 is dismissed pursuant to rule 13.03(1) of the Federal Magistrates Court Rules 2001 for failure to comply with the registrar's order of 21 December 2005.
The applicant pay the first respondent's costs fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1507 of 2005
| MZXEU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR |
Respondent
REASONS FOR JUDGMENT
This is an application by notice of motion by the first respondent to dismiss the application pursuant to rule 13.03(1) of the Federal Magistrates Court Rules 2001 for failure by the applicant to comply with an order of the Court. The application is an application to review a decision of the Refugee Review Tribunal.
The application had a first court date of 21 December 2005. On that day, a registrar made an order joining the Refugee Review Tribunal as a second respondent and ordering the first respondent to file and serve a court book by 27 January 2006, and that the applicant file and serve an amended application with proper particulars, if any, by 10 February 2006. The application contained particulars in a very general form, insufficient for such an application to proceed.
The notice of motion was supported by an affidavit of the solicitor for the first respondent. A copy of the Court's order was sent on
21 February 2006 to the applicant's address for service. The contentions had not been filed. The failure to comply with the order has been proved. There is also an affidavit of service, of the notice of motion and affidavit, at the applicant's address for service.
Insofar as dismissing an application for failing to comply with an order of the Court is discretionary over and above a proof of failure to comply with the order, the application here has no hope of success.
The Tribunal's reasons show that the applicant is a citizen of Malaysia. He is ethnic Chinese and a Buddhist. He arrived in Australia as the holder of an electronic travel authority on 23 March 2005 and lodged his protection application on 9 May 2005. He claims he departed Malaysia because of race and religious problems. The information he provided was that he might be persecuted if he goes back to his country; he was a second-class citizen in his country. Islamic laws are standard and are not beneficial to him, for example circumcision; Muslim extremists want to convert him and his family to their religion; extremists have destroyed churches and Buddhist temples; Muslim extremists will jail and harm him; the authorities of that country cannot protect him because they belong to that group.
The applicant did not appear at the tribunal hearing, having been invited to appear and been given notice. The tribunal accepted the applicant is a national of Malaysia, but found that the claims were so general and lacking in detail that it was unable to establish the relevant facts. It set out the various claims and set out that no detail or information was provided about how those claims were alleged to have occurred. The decision by the delegate of the minister not to grant the visa was affirmed. In those circumstances, there is no basis for the application. Insofar as there is any discretionary element, it is clearly in favour of dismissing the application.
I certify that the preceding Six (6) paragraphs are a true copy of the reasons for judgment of Phipps FM
Acting Associate: Jan Smith
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