NBED v Minister for Immigration
[2004] FMCA 1101
•5 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBED v MINISTER FOR IMMIGRATION | [2004] FMCA 1101 |
| MIGRATION – Review of decision of Refugee Review Tribunal – application summarily dismissed. |
| Applicant: | NBED |
| Respondent: | MINISTER FOR IMMIGRATION |
| File No: | SYG 2150 of 2004 |
| Delivered on: | 5 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 November 2004 |
| Judgment of: | Nicholls FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr Crockett |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
The application is dismissed pursuant to Rule 13.03 (2)(b) and Rule 13.10 (c) of the Federal Magistrate Court Rules.
That the applicant pay the respondent's costs set in the amount of $1500 pursuant to Rule 21.02 (2) (a) of the Federal Magistrate Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2150 of 2004
| NBED |
Applicant
And
| MIMIA |
Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
By application to the Federal Court filed on 16 April 2004 the applicant, a Chinese national, sought review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 March 2004 and handed down on 8 April 2004 affirming a decision of a delegate of the respondent Minister made on 30 May 2003 to refuse a protection visa to the applicant.
On 21 May 2004, his Honour, Justice Whitlam transferred the matter to this Court. The Court made orders, by consent, that (amongst others):
“3. The applicant file and serve any amended application giving complete particulars of each ground of review relied on, and any additional affidavit evidence by 15 July 2004.
4. If an amended application is not filed in accordance with paragraph 2 above (sic 3), Paragraph 2 in signed Short Minutes of Order], the respondent may request that the Registry list the matter in a non-compliance list before a Federal Magistrate with the intention of applying for summary dismissal due to non-compliance with a direction of the Court. Once listed, the Respondent to advise the applicant of the time, date and place of that listing.”
No amended application was filed by the due date. The matter was listed in the non-compliance list of 5 November 2004, before me.
Mr Crocket for the Minister sought leave to file an affidavit on 26 October 2004 of Murray John Allatt, a solicitor in the employ of the respondent’s solicitors, which amended a copy of a letter from the respondent’s solicitors to the applicant dated 26 October 2004 which advised the applicant that he had not complied with the relevant order and that the matter had been listed in a non compliance list, where the respondent would seek summary dismissal of the application.
Mr Crocket for the respondent Minister sought an order that the application be dismissed pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules (“the Rules”), for non-compliance with the Court’s orders.
Before me, the applicant appeared unrepresented. He was assisted by an interpreter in the Mandarin language. The applicant had accessed the Court’s Legal Advice Scheme, had consulted a lawyer on the panel of that scheme on 7 July 2004, and been provided with advice on 14 July 2004. The applicant claimed to have sent by facsimile on 19 June 2004 an amended application to the Court. There was nothing in the Court file to indicate that this had even been received. The applicant tendered what he said was a copy of that amended application. Mr Crockett submitted that the respondent had never been served with any filed copy of the amended application in June 2004 or thereafter. He confirmed, however, that two days prior the respondent’s solicitors did receive by facsimile a document headed “Amended application” from the applicant. The applicant tendered what he claimed to be an original of the document that he said he sent to the Court.
Mr Crockett submitted that this document did not reveal any cause of action and that the application should also be dismissed pursuant to Rule 13.10(a) of the Rules. The amended application does not disclose any cause of action that the Court can proceed on. Essentially what the applicant has done in this document is to recount matters and circumstances in China and some of those matters directly relating to getting a job and establishing a business, and then he says:
“The following is my claim. A delegate of the Minister for Immigration and Migration and Indigenous Affairs refused my application on 30 May 2003. I lodged an application for review with the Refugee Review Tribunal on 30 June 2003. The Refugee Review Tribunal affirmed the DIMIA decision. I found that the refusal decision is unfair to me. What the applicant is saying is that I didn’t agree with the decision of the tribunal. That is not cause of action let alone providing any complete particulars as the applicant was required to do.”
I explained to the applicant that there are some important principles about how the system operates in Australia that he needed to hear and understand; that when you make an application to the Minister’s Department for a protection visa, that is on refugee grounds, and that is refused and then you go to the Tribunal. What the Minister’s delegate and the Tribunal do is they make a decision on the facts and the merits of what has been presented to them. On these facts and merits they make a decision as to whether to give a protection visa or not to give a protection visa. I explained that this Court does not do that. This Court looks to see whether there has been any error, that is, a legal error, in what the Tribunal has done. The Court does not do the same job that the Tribunal does. The Court cannot give an applicant for review a visa. What the Court does is determine whether there has been any legal error, and if there has been a legal mistake, send the matter back to the Tribunal for redetermination.
The applicant then made reference to other documents that he said supported his claim. In spite of the Court order requiring any particulars or evidence to be filed, he said his failure to do so was because he was waiting for the final hearing on the matter.
In all the circumstances it was appropriate that I make an order dismissing this matter. In particular, I have had regard to the fact that the applicant had access to the Court’s Legal Assistance Scheme, that the application to the Court generally alleged error of law and a denial of natural justice, and no particulars were provided. An order was made on 21 May 2004, by consent, that an amended application be filed by 19 July 2004. No amended application was filed by that date.
The respondent’s solicitors wrote to the applicant on 26 October 2004 and reminded him of the failure to comply. No amended application was filed by 5 November 2004, being the date of the application for summary dismissal before me. No explanation was offered for the failure to file an amended application in the six months since the Court’s order was made. In all the circumstances there appears to be no utility in allowing a further period for the filing of an amended application. For all these reasons, this application is dismissed pursuant to Rules 13.10 (c) and 13.03(2)(b) of the Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Tanya Koens
Date: 11 April 2005
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