S1555 of 2003 v Minister for Immigration

[2004] FMCA 960

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1555 of 2003 v MINISTER FOR IMMIGRATION [2004] FMCA 960

MIGRATION – Application for review of Tribunal decision – application by respondent Minister for summary dismissal – where applicant belatedly filed an amended application – where applicant failed to attend Court for the hearing of the Motion – whether the application for review is an abuse of process – whether any cause of action is disclosed – whether costs should be on an indemnity basis.

Migration Act 1958 (Cth), s.424A
Federal Magistrates Court Rules 2001

NARV v MIMIA [2003] FCAFC 262

Applicant: APPLICANT S1555 of 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG795 of 2004

Delivered on: 3 December 2004

Delivered at: Sydney

Hearing date: 3 December 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: No Appearance

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules.

2. Alternatively, and in addition to order (1), the application is dismissed pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules.

3. Applicant to pay the respondent’s costs assessed in the sum of $2,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG795 of 2003

APPLICANT S1555 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant filed on 18 March 2004 an application to review a decision of the Refugee Review Tribunal made on 26 February 1998.  That decision had been the subject of certain other proceedings which are set out in some detail in the affidavit of Rebecca Kate Leahy dated 7 October 2004 and filed herein. 

2. On 29 July 2004 orders were made by consent in this Court which included an order that the applicant file and serve an amended application giving complete particulars of each ground of review being relied upon and any evidence upon which he proposed to rely by 23 September 2004.  The applicant had not filed such a document by 7 October 2004 when a Notice of Motion for dismissal was filed by the respondent's solicitors.  However, on 11 October 2004 a document entitled “Amended Application” was filed.  That amended application gave some grounds of review as follows:

   1. The Tribunal denied the Applicant procedural fairness and in doing so made a jurisdictional error. 

   Particulars

(a)The Tribunal relied on independent evidence but did not accept the Amnesty International (sic);

(b)The Tribunal failed to afford the applicant an opportunity to deal with adverse information, contained in the independent country information relied upon by the Tribunal, that was credible, relevant and significant to the Tribunal's decision;

(c)The Tribunal relied on independent country information referred to at pages 204 - 231 of the court book which suggested that:

That it was also common to Pakistan politics, I have actually the problem to back to my country after 15 years. (sic)

(e)The applicant relied on the decision of the Full Court of the Federal Court in NARV v MIMIA (2003) 203 ALR 494.

2. The Tribunal failed to comply with the mandatory requirements of the Migration Act in that the applicant was not provided with the independent country information which was not "just about a class of persons of which the applicant was a member" and which fell outside the meaning of section 424A(3)(a) of the Migration Act where such information was relevant to the Tribunal's decisions not only because it concerned the class of persons but also because it went to a separate issue in the proceeding: NARV and Ors v MIMIA (2003) 203 ALR 494.

1. There are then provided 10 particulars which appear formulaic and are not actually particulars of the matters raised and set out above.  It is possible that the applicant, thinking that having supplied the amended application, these proceedings were not going ahead, has failed to attend today.  By this he would have been wrong, and would have known he was wrong.  Ms Bryant tendered three letters sent to the applicant at his address dated 7, 20 and 22 October all of which make reference to the hearing today. 

2. The notice of motion seeks dismissal on the grounds that the proceeding is an abuse of the process of the court, that it discloses no reasonable cause of action and that the applicant has failed to comply with an order of the court. The respondent also seeks her costs on an indemnity basis. I am also able to dismiss the proceedings pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules for the non-attendance of the applicant.

3. I have read the Tribunal's decision.  It seems to me that the applicant has misconceived the availability of judicial review on the grounds that he has set out.  The Tribunal is not obligated to accept any particular piece of independent country information and the fact that it did not accept the Amnesty International information but preferred other independent country information is a matter within its remit.  Insofar as the allegation that the Tribunal failed to accord the applicant an opportunity to deal with adverse information, I am not prepared to accept that this has occurred.  The decision of the Tribunal between [CB 197] – [CB 199] seems to indicate that the Tribunal took up with the applicant what is perhaps the most significant piece of adverse information, namely information from the MQM Headquarters in London, that many applicants who claimed association with MQM were not genuine refugees.

4. The third particular under ground 1 that the Tribunal relied on independent country information referred to at [CB 204] - [CB 231] which suggested "that it was also common to Pakistan politics, I have actually the problem to back to my country after 15 years" is regrettably difficult to comprehend in the absence of the applicant himself.  It does not seem to me to invoke any ground of jurisdictional error.

5. Likewise I am unclear in what way the applicant seeks to rely on the decision in NARV v MIMIA [2003] FCAFC 262 found as subparagraph (e) to paragraph 1 of his grounds for review. The second ground for review dealing with the requirements of s.424A(3)(a) has rightly been pointed out to me by Ms Bryant as being totally irrelevant to this decision which was handed down some years before s.424A(3)(a) found its way into the statute book.

6. In all the circumstances, I am satisfied that this application discloses no reasonable cause of action either as originally set out or in the amended document from which I have drawn. I would therefore propose to dismiss the application pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules and also pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules in the light of the applicant's non attendance.

7. I am not prepared to make an order for indemnity costs in this matter, although I note that the applicant is no stranger to the court. I order that the applicant pay the respondent's costs of the proceedings and of the Notice of Motion which I assess in the sum of $2,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  13 December 2004